Opinion
No. A09-1471.
Filed April 27, 2010.
Appeal from the Department of Employment and Economic Development, File No. 22130563-5.
Tsegaye Ayichew (pro se relator).
Guardsmark LLC, (respondent).
Lee B. Nelson, Amy R. Lawler, Minnesota Department of Employment and Economic Development, (respondent Department of Employment and Economic Development).
Considered and decided by Halbrooks, Presiding Judge; Lansing, Judge; and Schellhas, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2008).
UNPUBLISHED OPINION
Tsegaye Ayichew appeals, by writ of certiorari, an unemployment law judge's determination that he is ineligible for unemployment benefits because he was discharged for employment misconduct. Substantial evidence supports the finding that Ayichew was absent from his worksite for an extended vacation without his employer's authorization. Because the unauthorized absence amounts to employment misconduct, we affirm.
FACTS
Guardsmark LLC hired Tsegaye Ayichew as a full-time security guard in November 2004. In late December 2007 and early January 2008, Ayichew was absent from work for a period of time that exceeded two weeks. When he returned in January 2008, Guardsmark told him that his position had been filled. Ayichew applied for unemployment benefits, and in March 2009, the Minnesota Department of Employment and Economic Development issued an eligibility determination. Guardsmark appealed, and, after a hearing, an unemployment law judge (ULJ) determined that Ayichew is ineligible because he was discharged for employment misconduct.
The principal issue at the hearing was whether Ayichew complied with Guardsmark's vacation policies. Ayichew and Alex Duncan, a branch manager for Guardsmark, both testified. It was undisputed that, before Ayichew took the time off in December and January, he had accrued two weeks' paid vacation. It was also undisputed that Guardsmark's policy requires approval of requests to take paid vacation time. Although testimony conflicted about when Ayichew started his vacation, the evidence was uncontradicted that Ayichew was absent at least from December 17, 2007 through January 8, 2008.
Ayichew testified that Guardsmark knew of his vacation plans because he completed a vacation-request form in November, gave it to a field supervisor, and obtained approval. Ayichew provided a pay stub for the period ending December 15, which showed that he had been paid vacation time for two additional weeks and stated that they showed his vacation had been approved. Duncan testified that Guardsmark did not know in advance about Ayichew's vacation and provided a log entry and a written statement by Ayichew's direct supervisor that supported Duncan's statement. Duncan also said that, in any event, a request for more than two weeks' vacation would not have been approved. The record also indicated that when Ayichew left in December, he turned in his keys and said that he would not be back until January 15. Although Ayichew returned on January 8, the January 15 date far exceeded his accrued vacation time. Duncan testified that he tried to contact Ayichew to talk to him about his absence, but he received no response. Duncan concluded that Ayichew had abandoned his post and terminated his employment. Duncan stated that the vacation pay on Ayichew's December 15 pay stub was a required employment-termination payout of Ayichew's accrued vacation time.
The ULJ concluded that Ayichew is ineligible for unemployment compensation because of employment misconduct. The ULJ found that Ayichew "had not submitted a vacation request and had not obtained authorization from the branch manager." The ULJ credited Duncan's testimony and stated that Ayichew "offered no documentary or other legally sufficient evidence" to support his claim that he submitted a request and obtained approval. The ULJ further found that Ayichew's extended vacation without authorization "exhibited a lack of concern for his job and a substantial disregard of the standards of behavior that Guardsmark had the right to reasonably expect of him."
Before the ULJ issued the decision, and again after the decision, Ayichew provided additional argument and evidence in an attempt to show that Duncan was not being truthful at the hearing. The ULJ concluded that Ayichew had been given ample opportunity to present his case, that his evidence and argument had been considered, and that the decision reached was correct. Ayichew appeals by writ of certiorari.
DECISION
A person who is discharged for employment misconduct is ineligible to receive unemployment benefits. Minn. Stat. § 268.095, subd. 4(1) (2008). "Employment misconduct" is intentional, negligent, or indifferent conduct that clearly displays either "a serious violation of the standards of behavior the employer has the right to reasonably expect" or "a substantial lack of concern for the employment." Id., subd. 6(a) (2008). Whether an employee committed a particular act is a fact question, but whether the act constitutes employment misconduct is a question of law. Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).
On review, we will affirm the determination of a ULJ unless it is unsupported by substantial evidence, relies on an error of law, or reflects other specified errors. Minn. Stat. § 268.105, subd. 7(d) (2008). We defer to the ULJ's assessment of credibility and resolution of conflicting testimony. Skarhus v. Davanni's, Inc., 721 N.W.2d 340, 344 (Minn. App. 2006); see also Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995) (addressing earlier version of applicable statute).
An employer has the right to establish and enforce reasonable rules governing absences from work. Jones v. Rosemount, Inc., 361 N.W.2d 118, 120 (Minn. App. 1985). Refusal to abide by an employer's reasonable policies and requests ordinarily amounts to employment misconduct. McGowan v. Executive Express Transp. Enters., 420 N.W.2d 592, 596 (Minn. 1988).
Ayichew's challenge to the ULJ's decision is directed to the ULJ's credibility determination. He maintains that, contrary to the ULJ's finding, he submitted a vacation request to his supervisor and obtained approval. The ULJ expressly credited Duncan's account over Ayichew's. The ULJ noted that the supervisor's documentation indicated that Ayichew had not submitted a vacation request and that Duncan stated that he would not have given approval for a vacation request that exceeded two weeks.
The record shows that only three staff people were employed at Ayichew's worksite; Duncan noted that any absence would therefore cause staffing problems. The evidence also shows that Ayichew's absence from December 17 through January 8 exceeded a two-week vacation period. Even allowing two days off for both the Christmas and New Year's holidays, Ayichew would have missed thirteen work days. The ULJ discredited Ayichew's argument that his absence had been approved because Ayichew offered no convincing evidence that he had submitted the request form. The supervisor Ayichew claimed he gave the request form to no longer worked for Guardsmark, and Ayichew did not present a statement or evidence from the former supervisor. Ayichew was unable to provide a copy of the form that he said he had submitted, and Duncan offered a plausible explanation of why Ayichew's December 15 pay stub included vacation pay. The ULJ's credibility determination is plainly stated in the findings and to the degree it relies on testimony, it is supported by the record. We defer to that determination.
On this evidence we conclude, for two reasons, that it was not an abuse of discretion for the ULJ to determine that Ayichew's absence constituted employment misconduct. First, Guardsmark's vacation policy was reasonable. Guardsmark provided security to its clients and, as Duncan noted, unauthorized absences from a worksite undermines the client's confidence. The need to reassign other employees requires that absences must be scheduled in advance.
Second, disregard for the policy shows a serious violation of expected standards of behavior, because it risks the possibility of leaving the client without security coverage. Accordingly, Guardsmark's policies provide that employment may be terminated for abandoning the worksite. In light of the worksite policy, an employee who takes an unauthorized vacation knows the risk of discharge, and therefore, shows a substantial lack of concern for employment by not being present when scheduled to work. Ayichew's extended absence without his employer's approval or knowledge showed a serious violation of the employer's reasonable expectations. See Little v. Larson Bus Serv., 352 N.W.2d 813, 814-15 (Minn. App. 1984) (holding that employee committed misconduct by missing work after vacation request was denied), superseded by statute on other grounds, Minn. Stat. § 268.095, subd. 6(e) (Supp. 2007).
Finally, Ayichew argues that it is unfair to require him to repay $7,358, the full amount of the resulting overpayment, because fourteen months passed before the department issued the eligibility determination that triggered the employer's appeal to the ULJ. He asks this court to reduce the overpayment amount. Once a person is found ineligible, any benefit amounts that have previously been paid constitute an overpayment. Minn. Stat. § 268.105, subd. 3a(b) (2008). Overpayments are subject to collection procedures. Minn. Stat. § 268.18, subd. 1(a)-(b) (2008). We agree that the substantial overpayment is unfortunate and imposes a heavy obligation on an individual who may still be unemployed. But nothing in the record suggests that the commissioner was responsible for the undue delay in Ayichew's eligibility determination. Instead, the delay was caused by an error that Ayichew made in the submission papers when he initially applied. In any event, we are unable to grant relief because the unemployment statutes divest the courts of authority to alter benefits based on equitable or common-law theory. Minn. Stat. § 268.069, subd. 3 (2008) (stating that "[t]here is no equitable or common law denial or allowance of unemployment benefits").
Affirmed.