Mark M. Lazo, Relator v. Moguls F & B LLC, Department of Employment and Economic Development ( 2014 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2012).
STATE OF MINNESOTA
IN COURT OF APPEALS
A14-0230
Mark M. Lazo,
Relator,
vs.
Moguls F & B LLC,
Respondent,
Department of Employment and Economic Development,
Respondent.
Filed October 27, 2014
Affirmed
Kirk, Judge
Department of Employment and Economic Development
File No. 31782220-3
Mark M. Lazo, St. Louis Park, Minnesota (pro se relator)
Moguls F & B LLC, Duluth, Minnesota (respondent)
Lee B. Nelson, Department of Employment and Economic Development, St. Paul,
Minnesota (for respondent department)
Considered and decided by Kirk, Presiding Judge; Hudson, Judge; and
Stoneburner, Judge.

Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
UNPUBLISHED OPINION
KIRK, Judge
Relator Mark M. Lazo challenges an unemployment-law judge’s (ULJ)
determination that he is ineligible for unemployment benefits because he was discharged
for employment misconduct after he failed to report to work on two occasions. We
affirm.
DECISION
This court reviews a ULJ’s decision to determine whether a party’s substantial
rights were prejudiced because the findings, inferences, conclusion or decision are
unsupported by substantial evidence in view of the record as a whole or affected by an
error of law. 2014 Minn. Laws ch. 271, art. 1, § 1 (to be codified at Minn. Stat.
§ 268.105, subd. 7(d) (2014)). Substantial evidence means “(1) such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion; (2) more than a
scintilla of evidence; (3) more than some evidence; (4) more than any evidence; or (5) the
evidence considered in its entirety.” Minn. Ctr. for Envtl. Advocacy v. Minn. Pollution
Control Agency, 644 N.W.2d 457, 466 (Minn. 2002).
Whether Lazo engaged in conduct that disqualifies him from unemployment
benefits is a mixed question of fact and law. See Schmidgall v. FilmTec Corp., 644
N.W.2d 801, 804 (Minn. 2002). Whether a particular act constitutes employment
misconduct is a question of law, which this court reviews de novo. Scheunemann v.
Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997). But whether the employee
committed the particular act is a question of fact. Id. This court reviews the ULJ’s
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factual findings “in the light most favorable to the decision” and defers to the ULJ’s
credibility determinations. Skarhus v. Davanni’s Inc., 721 N.W.2d 340, 344 (Minn. App.
2006).
An employee who is discharged from employment for misconduct is ineligible to
receive unemployment benefits. Minn. Stat. § 268.095, subd. 4(1) (2012). Employment
misconduct means “any intentional, negligent, or indifferent conduct, on the job or off the
job that displays clearly: (1) a serious violation of the standards of behavior the employer
has the right to reasonably expect of the employee; or (2) a substantial lack of concern for
the employment.” Id., subd. 6(a) (2012). As a general rule, an employee’s refusal to
abide by an employer’s reasonable policies and requests amounts to disqualifying
misconduct. Schmidgall, 644 N.W.2d at 804. “Minnesota law allows an employer to
establish and enforce reasonable rules governing employee absences.” Cunningham v.
Wal-Mart Assocs., 809 N.W.2d 231, 235 (Minn. App. 2011).
This court “accords deference to a ULJ’s decision not to hold an additional
hearing and will reverse that decision only for an abuse of discretion.” Skarhus, 721
N.W.2d at 345. When deciding a request for reconsideration, the ULJ “must not . . .
consider any evidence that was not submitted at the evidentiary hearing,” but must order
an additional evidentiary hearing to consider new evidence if it “would likely change the
outcome of the decision and there was good cause for not having previously submitted
that evidence.” 2014 Minn. Laws ch. 251, art. 2, § 16 (to be codified at Minn. Stat.
§ 268.105, subd. 2(c) (2014)).
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Lazo was employed as the food and beverage manager at respondent Moguls
F & B LLC, doing business as Moguls Grille & Tap Room in Lutsen, until he was
discharged on October 24, 2013, after he failed to report to work on October 14 and 15.
After Lazo applied for unemployment benefits, a Minnesota Department of Employment
and Economic Development (DEED) clerk determined that he was ineligible for benefits
because he was discharged for employment misconduct.
At a telephonic evidentiary hearing, Lazo argued that his failure to report to work
did not constitute employment misconduct because he was not scheduled to work on
Monday, October 14, and that he notified his employer by text message that he would be
absent from work on October 15. The ULJ upheld DEED’s ineligibility determination,
finding that Lazo was discharged for misconduct for failing to report to work on October
14 and 15. The ULJ found that Lazo credibly testified that he would normally report to
work on Mondays in order to complete the food and beverage orders even if it was not
listed on his work schedule. The ULJ also credited Lazo’s testimony that he waited three
hours into his work shift on October 15 before notifying his employer that he was taking
the day off.
Lazo filed a request for reconsideration and submitted a copy of his monthly work
schedule documenting that he was not scheduled to work on October 14. The ULJ
affirmed her decision, finding that a copy of Lazo’s work schedule was irrelevant to her
decision because Lazo had credibly testified that he would report to work on Mondays
regardless of whether it was noted on his work schedule. The ULJ also concluded that
the failure of Lazo’s employer to respond to Lazo’s text message on October 15
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informing him of his absence from work did not mean that his employer was indifferent
to Lazo’s work attendance. The ULJ noted that Lazo had previously received a final
written warning from his employer regarding other absences from work and was on
notice that future issues with attendance, specifically failing to call or come into work,
would lead to his discharge from employment.
On certiorari appeal, Lazo argues that his actions do not constitute employment
misconduct because: (1) he was not scheduled to work on Monday, October 14; (2) his
work schedule was merely a guideline, and he planned to make up his absence from work
on October 15 by working on October 17; and (3) his failure to report to work on October
14 and 15 did not constitute a pattern of unexcused absences, and he was unfairly
discharged without warning.
There is substantial evidence in the record to support the ULJ’s findings that Lazo
committed employment misconduct when he failed to appear for work on October 14 and
15. The record establishes that Moguls has an absenteeism and tardiness policy that Lazo
was aware of and expected to follow. Lazo had previously received a final warning
notice from Moguls in November 2012 that outlined the procedures he must follow in
completing his work schedule and reporting to work. The warning stated that Lazo must
fill in the dates and times of his work shifts in his work schedule and submit the work
schedule to his employer for approval. Lazo was also required to immediately notify his
employer if he would be late or unable to come to work.
The ULJ found Lazo’s testimony about some events to be self-serving and
inconsistent. The ULJ did not find Lazo’s testimony that he was not scheduled to work
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on Monday, October 14, to be credible in light of his testimony that he would normally
report for work on Mondays even if it wasn’t noted on his written schedule. See Minn.
Stat. § 268.031, subd. 1 (2012) (“All issues of fact under the Minnesota Unemployment
Insurance Law are determined by a preponderance of the evidence.”). In making factual
findings, this court defers to the ULJ’s credibility determinations. Skarhus, 721 N.W.2d
at 344.
Lazo failed to notify his employer of his absence on October 15 until three hours
after the work shift was scheduled to start. “[E]xcept in certain limited circumstances, an
employee engages in misconduct if he is absent even once without notifying his
employer.” Del Dee Foods, Inc. v. Miller, 390 N.W.2d 415, 418 (Minn. App. 1986).
Lazo’s argument that his employer was indifferent to his absence on October 15 because
he did not respond to Lazo’s text message is without merit because notifying an employer
of an absence does not equate to receiving permission for that absence. See Psihos v. R
& M Mfg., 352 N.W.2d 849, 850 (Minn. App. 1984) (concluding that employee who
“announced his departure [from work] and left without permission” committed
employment misconduct because he did not request or receive permission to leave work).
Here, Lazo was required to report to work on October 15 and notify his employer in
advance of any absence, which he failed to do. Thus, the ULJ did not err in finding that
Lazo committed employment misconduct when he failed to report to work on October 15.
Finally, Lazo argues that his absences on October 14 and 15 do not constitute a
pattern of unexcused absences and that he was unfairly discharged without warning. The
ULJ noted that Lazo had been previously disciplined for the same type of offense by his
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employer and that he was aware that he needed to call Moguls in advance of any absence
or inability to report to work. A pattern of absenteeism can constitute employment
misconduct because it demonstrates a lack of concern by the employee for the job. Jones
v. Rosemount, Inc., 361 N.W.2d 118, 120 (Minn. App. 1985). Here, the record shows
that Lazo failed to follow Mogul’s notification policy on at least eight previous
occasions. Such a record demonstrates a serious violation of the standards of behavior
that an employer has the right to reasonably expect. See Stagg v. Vintage Place Inc., 796
N.W.2d 312, 317 (Minn. 2011) (holding that relator was discharged for excessive
absenteeism and tardiness when he failed to follow employer’s tardiness policy on at
least five occasions). We conclude that there is substantial evidence to support the ULJ’s
findings.
Affirmed.
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