Opinion
No. A05-2311.
Filed September 12, 2006.
Appeal from the Department of Employment and Economic Development, File No. 1347205, Hudson, Judge, Affirmed.
Angela M. Wigfield, (pro se relator)
Us Federal Employees, Us Department of Veterans Affairs, Attn: Ruth Hildredt, (respondent)
Linda A. Holmes, Minnesota Department of Employment and Economic Development, (for Department)
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2004).
UNPUBLISHED OPINION
Relator Angela Wigfield challenges the decision by the unemployment-law judge (ULJ) affirming his decision that relator was disqualified from receiving unemployment benefits because she had been discharged for misconduct. Relator argues that she provided medical documentation of her illness, that she was physically unable to work on the days she missed, and that she was subject to discrimination. Because the evidence reasonably tends to sustain the ULJ's decision, we affirm.
FACTS
Relator was an employee of the Department of Veterans Affairs (DVA) from November 1999 until August 2000 and from February 2001 until August 2005. Relator's hours were approximately 8:00 a.m. to 4:30 p.m. In May of 2005, the DVA proposed to remove her from employment because of threatening remarks relator made to other employees. On July 14, 2005, relator and the DVA entered into a "last chance agreement" (LCA). The provisions of the agreement permitted relator to continue working at the DVA as long as she complied with certain requirements listed in the LCA. The relevant portion of the LCA reads:
I agree to be in regular attendance for the one year duration of this agreement. Regular attendance is defined as using no more than 24 hours of unplanned annual leave. Annual leave requested and approved at least one week in advance of the leave will not be counted against the 24 hour limit. It is understood that all annual leave is subject to prior approval by my leave approving official. I understand that tardiness, and/or unauthorized breaks may result in charges of AWOL. I understand that I may be charged AWOL if I fail to provide timely and acceptable medical documentation for any absence due to illness or injury, in cases where such documentation is required.
. . . .
I agree that a single instance of AWOL and/or a single instance of any other violation of this agreement will be grounds for the issuance of a Decision of Removal from the Federal Service. Such a decision will be based on the charges identified in the proposal, and will be triggered by breach of this agreement.
On August 7, 2005, relator's grandmother died. Relator took annual leave from August 8 until August 12, 2005, which exhausted all of her available leave, and she was expected to return to work on Monday, August 15, 2005. On August 15, relator called the DVA at 7:39 a.m. to report that she would be absent from work that day. She left a voice message indicating that she needed to meet with a lawyer and to take care of other matters relating to her grandmother's death. She also indicated that she would call back later that same day, but she did not. Relator did not mention that she had seen a health professional or that she was having health problems. At 9:25 a.m. the next day, August 16, relator again called her supervisor to report that she would be absent from work. At approximately 4:00 p.m. on that same day, relator's supervisor informed relator that she was going to be removed from employment with the DVA. On August 17, relator called into work at 1:00 p.m. to report that she would not be coming in to work. The DVA issued a letter on August 17 notifying relator that she was being charged AWOL and would be removed. Relator produced a note from HealthPartners dated August 19, 2005, and signed by a nurse practitioner, which reads: "[Relator] was unable to attend work from 8-13-05 through 8-19-05."
After her discharge, a Minnesota Department of Employment and Economic Development (DEED) adjudicator determined that she was not removed because of employment misconduct and was qualified to receive unemployment benefits. The DVA appealed the decision and on September 30, 2005, a hearing was held by telephone conference call before an unemployment-law judge (ULJ). Relator received notice of the hearing on September 14, 2005, but she could not be reached by phone at the time of the hearing and did not participate. The ULJ decided that relator was discharged because of employment misconduct, and, therefore, she was disqualified from receiving unemployment benefits. Relator submitted a request for reconsideration to the ULJ on October 6, 2005. The ULJ determined that relator did not show "good cause" for failing to participate in the September 30 hearing and, therefore, no additional evidentiary hearing was required. The ULJ affirmed his September 30, 2005 findings of fact and decision. This certiorari appeal follows.
DECISION
An employee discharged for employee misconduct is disqualified from receiving unemployment benefits. Minn. Stat. § 268.095, subd. 4 (Supp. 2005). "Misconduct" is defined as:
[A]ny intentional, negligent, or indifferent conduct, on the job or off the job (1) that displays clearly a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee, or (2) that displays clearly a substantial lack of concern for the employment.
Inefficiency, inadvertence, simple unsatisfactory conduct, a single incident that does not have a significant adverse impact on the employer, conduct an average reasonable employee would have engaged in under the circumstances, poor performance because of inability or incapacity, good faith errors in judgment if judgment was required, or absence because of illness or injury with proper notice to the employer, are not employment misconduct.
Minn. Stat. § 268.095, subd. 6(a) (2004). An employer has a right to "establish and enforce reasonable work rules relating to absenteeism." Jones v. Rosemount, Inc., 361 N.W.2d 118, 120 (Minn.App. 1985). "As a general rule, refusing to abide by an employer's reasonable policies and requests amounts to disqualifying misconduct." Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).
On review of the ULJ's decision, we may affirm, remand for further proceedings, or reverse or modify the decision. Minn. Stat. § 268.105, subd. 7(d) (Supp. 2005). Reversal or modification is appropriate when relator's substantial rights were prejudiced because the findings, inferences, conclusion, or decision are affected by error of law or unsupported by substantial evidence. Id. (setting out standard of review for ULJ decisions issued on or after June 25, 2005).
This statute was amended in 2005 and became effective as to ULJ decisions issued on or after June 25, 2005. 2005 Minn. Laws ch. 112, art. 2, § 34, at 704, 710, 714. The new language mirrors the judicial review standard of quasi-judicial decisions under the Administrative Procedure Act. See Minn. Stat. § 14.69(a)-(f) (2004).
Here, relator entered into a last-chance agreement with the DVA which clearly indicated that even one instance of AWOL would result in termination. Relator signed the agreement and initialed next to a paragraph, which states: "I fully understand and accept the terms of the above Last Chance Agreement." A provision in the agreement required timely and adequate medical documentation for any absences due to illness or injury. Relator maintains that an illness made her unable to report to work on August 15 and 16, 2005. The record demonstrates, however, that she did not submit timely and acceptable medical documentation of her illness. Relator did not mention illness as the reason for either of her absences when she called into work. Only after her removal did relator produce a note signed by a nurse practitioner indicating that she was unable to attend work from August 13 to August 19, 2005. The note is signed by the nurse practitioner, but it does not give any explanation of the type or extent of relator's illness, does not indicate why relator was unable to work, and appears to have been created on August 19, 2005. Relator also supplied a copy of two prescriptions, both of which were apparently issued on August 19, 2005. Neither document indicates when relator was seen by a medical professional. Relator did not submit any other documentation to her employer supporting her contention that she was ill and unable to work on August 15 and 16, 2005.
Substantial evidence exists in the record to sustain the factual findings of the ULJ, and, based on these findings, we conclude that relator committed a serious violation of an attendance standard that her employer had a right to expect and displayed a substantial lack of concern for the employment. Relator's behavior constituted misconduct under Minn. Stat. § 268.095, subd. 6(a).
Relator also claims that she suffered discrimination in violation of the Americans with Disabilities Act (ADA), arguing that reasonable accommodations were not made for her and that the DVA mishandled her application for leave under the Family Medical Leave Act. Relator did not raise these issues before the ULJ, and we will not consider them for the first time on appeal. Gonsior v. Alternative Staffing, Inc., 390 N.W.2d 801, 806 (Minn.App. 1986), review denied (Minn. Aug. 27, 1986).