                          This opinion will be unpublished and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
                                     A14-0471

                                       Keith Travis,
                                         Relator,

                                            vs.

                                Wal-Mart Associates, Inc.,
                                     Respondent,

                 Department of Employment and Economic Development,
                                     Respondent.

                                Filed December 22, 2014
                                       Affirmed
                                    Schellhas, Judge

                 Department of Employment and Economic Development
                          File Nos. 31850322-3, 32118742-2

Keith Travis, St. Paul, Minnesota (pro se relator)

Wal-Mart Associates, Inc., c/o TALX UCM Services, Inc., St. Louis, Missouri
(respondent)

Lee B. Nelson, Department of Employment and Economic Development, St. Paul,
Minnesota (for respondent Department of Employment and Economic Development)

         Considered and decided by Ross, Presiding Judge; Schellhas, Judge; and Smith,

Judge.
                         UNPUBLISHED OPINION

SCHELLHAS, Judge

       Relator challenges an unemployment-law judge’s decision that he is ineligible to

receive unemployment benefits because he was discharged for employment misconduct

and because he was neither available for nor actively seeking employment. We affirm.

                                           FACTS

       Relator Keith Travis became employed by respondent Wal-Mart Associates Inc.

on February 19, 2003, working full time as a tire team lead at Sam’s Club. In March

2013, Travis suffered a serious injury to his right hand. Nothing in the record suggests

that the injury was work related. As a result of the injury, Travis took a medical leave of

absence (LOA) from work, beginning April 3, 2013, and ending June 17, 2013. When his

first LOA ended, Travis took a second LOA, beginning June 18, 2013, and ending

August 26, 2013. He subsequently took a third LOA, beginning August 26, 2013, and

ending September 23, 2013. Wal-Mart approved all three LOAs.

       Before the third LOA ended, Tara Lanigan, a Wal-Mart personnel training

coordinator, made unsuccessful attempts to contact Travis. Lanigan therefore sent Travis

a letter on September 25, 2013, stating:

              According to our records, your Leave of Absence expired on
              09/23/2013. If you need to request an extension of your leave
              of absence, please contact me as soon as possible. I have
              included a packet for you and your healthcare provider to
              complete and return. If you do not wish to extend your leave,
              please contact a salaried member of management within three
              days of receipt of this letter to discuss your return to work. If
              you do not return to work or contact myself or management,
              your employment may end.


                                             2
       On October 8, 2013, Lanigan spoke with Travis, who “said that he did receive the

letter and that he thought that he had faxed the request [for a fourth LOA] over on 9/27.”

Lanigan informed Travis that she had not received the LOA request or the medical

certification that was required to approve such a request. Later that day, Lanigan did

receive from Travis a faxed request for a fourth LOA, but she did not receive the medical

certification. On October 10, Lanigan informed Travis that she still had not received the

necessary certification and, at Travis’s request, faxed the blank certification paperwork to

his rehabilitation therapist. On October 11, Travis’s rehabilitation therapist informed

Lanigan “that she would give [Travis] the paperwork to give to a doctor.”

       On October 17, 2013, having heard nothing more from Travis or his healthcare

providers, Lanigan “left a message on both of [Travis’s] phone numbers.” On October 22,

still having heard nothing more from Travis or his healthcare providers, Lanigan

contacted her “market HR manager and explained the situation,” ultimately receiving

“permission to go ahead and . . . terminate.” That day Lanigan sent discharge papers to

Travis’s home address.

       Travis established an unemployment-benefits account effective November 3,

2013. On December 2, the Minnesota Department of Employment and Economic

Development (DEED) determined that Travis is ineligible to receive unemployment

benefits because he was discharged for employment misconduct—namely, “failing to

provide [Wal-Mart] with a medical statement” to excuse his continued absence.




                                             3
       Travis appealed DEED’s determination of ineligibility, and an unemployment-law

judge (ULJ) conducted an appeal hearing. The ULJ heard testimony from Lanigan,

another Wal-Mart employee, and Travis. The ULJ continued the hearing to permit Travis

“to get verification that the doctor sent in the [certification paperwork].” When the

hearing continued, the ULJ primarily reviewed and elicited testimony regarding

documents that Travis produced. The ULJ heard testimony from Lanigan, Travis, and

Travis’s wife, including testimony regarding the impact of Travis’s hand injury on his

ability and intent to work. Following the hearing, the ULJ decided that Travis is ineligible

to receive unemployment benefits because he was discharged for employment

misconduct and because he was neither available for nor actively seeking employment.

Travis requested reconsideration of the decision, and the ULJ affirmed the decision.

       This certiorari appeal follows.

                                     DECISION

       The purpose of chapter 268, Minnesota’s unemployment-insurance program, is to

assist those who are unemployed through no fault of their own. Minn. Stat. § 268.03,

subd. 1 (2012). The chapter is remedial in nature and must be applied in favor of

awarding benefits, and any provision precluding receipt of benefits must be narrowly

construed. Minn. Stat. § 268.031, subd. 2 (2012).

       “In unemployment benefit cases, the appellate court is to review the ULJ’s factual

findings in the light most favorable to the decision and should not disturb those findings

as long as there is evidence in the record that reasonably tends to sustain them.” Stagg v.

Vintage Place Inc., 796 N.W.2d 312, 315 (Minn. 2011) (quotation omitted). The supreme


                                             4
court has stated repeatedly that appellate courts “will narrowly construe the

disqualification provisions of the statute in light of their remedial nature, as well as the

policy that unemployment compensation is paid only to those persons unemployed

through no fault of their own.” Id. (quotations omitted). An applicant is ineligible for

unemployment benefits if “the applicant was discharged because of employment

misconduct,” defined as “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.” Minn. Stat. § 268.095, subd. 4(1) (2012); 2014 Minn.

Laws ch. 239, art. 2, § 5, at 772 (to be codified at Minn. Stat. § 268.095, subd. 6(a)).

       Whether an employee committed employment misconduct is a mixed question of

fact and law. Stagg, 796 N.W.2d at 315. “Whether the employee committed a particular

act is a question of fact.” Peterson v. Nw. Airlines Inc., 753 N.W.2d 771, 774 (Minn.

App. 2008), review denied (Minn. Oct. 1, 2008). We defer to the ULJ’s credibility

determinations. Neumann v. Dep’t of Emp’t & Econ. Dev., 844 N.W.2d 736, 738 (Minn.

App. 2014). “[W]hether a particular act constitutes disqualifying misconduct is a question

of law that we review de novo.” Stagg, 796 N.W.2d at 315. We review de novo a ULJ’s

determination that an applicant is ineligible for unemployment benefits. Neumann, 844

N.W.2d at 738.

       In this case, the ULJ found Lanigan’s testimony to be “credible in all respects”

and that Travis failed to provide Wal-Mart with medical certification for a fourth LOA,

even after he was informed that such certification was required and given nearly a month


                                              5
to provide it. The ULJ further found that Wal-Mart discharged Travis because he failed

either to return to work or to provide medical certification for a fourth LOA. These

factual findings are amply supported by record evidence and are not disputed by Travis

on appeal.

       The question in this case is whether Travis’s failure either to return to work or to

provide certification for a fourth LOA was “employment misconduct” within the

meaning of section 268.095. “[A]bsence because of illness or injury of the applicant, with

proper notice to the employer,” is not employment misconduct. 2014 Minn. Laws ch.

239, art. 2, § 5, at 772–73 (to be codified at Minn. Stat. § 268.095, subd. 6(b)(7)). But an

employee’s “deliberate and direct contravention of the employer’s directive to return to

work” after a medical LOA ends, coupled with a “failure of [the employee] to seek

additional medical leave,” may constitute employment misconduct. Fresonke v. St.

Mary’s Hosp., 363 N.W.2d 328, 330 (Minn. App. 1985).

       Here, Travis allowed the third LOA to end without making arrangements to return

to work, requesting a fourth LOA, or even contacting anyone at Wal-Mart to discuss his

situation. As a result, Lanigan wrote to Travis and directed him either to “contact a

salaried member of management . . . to discuss [his] return to work” or to contact her to

“request an extension of [his LOA].” In the same letter, Lanigan indicated that “[Travis]

and [his] healthcare provider” would have to “complete and return” an enclosed “packet”

in connection with a request to extend his LOA and warned Travis that a failure to

“return to work or contact [Lanigan] or management” could “end” his employment.

Travis’s responses were unsatisfactory and ineffective, resulting in his discharge.


                                             6
       Travis argues on appeal that he was not at fault for his healthcare providers’

failure to timely complete and return the certification paperwork. But as noted by the

ULJ, “[a]n employer has the right to reasonably expect that an employee requesting a

medical [LOA] will provide certification from a doctor.” Cf. 29 U.S.C. § 2613(a) (2012)

(providing that “[a]n employer may require that a[n employee’s] request for leave” due to

the employee’s own serious health condition or that of the employee’s family member

“be supported by a certification issued by the health care provider of the eligible

employee or of the [family member] of the employee” and that “[t]he employee shall

provide, in a timely manner, a copy of such certification to the employer”). Travis’s

attempts to induce his healthcare providers to deliver the certification directly to Wal-

Mart, coupled with his lack of prompt follow-up when the healthcare providers did not do

so, was “negligent[] or indifferent conduct . . . 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”—i.e.,

employment misconduct that disqualifies Travis from receiving unemployment benefits.

See Minn. Stat. § 268.095, subd. 4(1); 2014 Minn. Laws ch. 239, art. 2, § 5, at 772 (to be

codified at Minn. Stat. § 268.095, subd. 6(a)).

       In addition to his disqualification for employment misconduct, Travis is ineligible

to receive unemployment benefits on independent grounds. To be eligible for benefits, an

applicant must be “available for suitable employment,” defined as “ready, willing, and

able to accept suitable employment.” Minn. Stat. § 268.085, subds. 1(4), 15(a) (2012).

The applicant’s “attachment to the work force must be genuine. [The] applicant may


                                             7
restrict availability to suitable employment, but there must be no other restrictions, either

self-imposed or created by circumstances, temporary or permanent, that prevent

accepting suitable employment.” Minn. Stat. § 268.085, subd. 15(a). An applicant whose

physical condition negatively impacts his ability to work is not thereby exempt from the

requirement of availability for suitable employment. See Mueller v. Comm’r of Econ.

Sec., 633 N.W.2d 91, 92–94 (Minn. App. 2001) (concluding that determination that

relator was not available for suitable employment was reasonably supported by evidence

that, “because of [relator]’s medical restriction, she could not work the hours that are

normal for her usual occupation or other employment”). Whether a person is available for

suitable employment is a question of fact. Semanko v. Dep’t of Emp’t Servs., 309 Minn.

425, 428, 244 N.W.2d 663, 665 (1976).

       The applicant also must be “actively seeking suitable employment,” defined as

making “those reasonable, diligent efforts an individual in similar circumstances would

make if genuinely interested in obtaining suitable employment under the existing

conditions in the labor market area,” to be eligible for benefits. Minn. Stat. § 268.085,

subds. 1(5), 16(a) (2012). Whether a person is actively seeking suitable employment is a

question of fact. Goodman v. Minn. Dep’t of Emp’t Servs., 312 Minn. 551, 553, 255

N.W.2d 222, 223 (1977).

       In this case, the ULJ elicited testimony from Travis that his hand injury was still

bothering him and that he did not think that he was capable of working at the time of the

hearing. He testified that he therefore had not been looking for work. His wife testified

that he could not do anything. The testimony of Travis and his wife is “evidence in the


                                             8
record that reasonably tends to sustain” the ULJ’s factual findings that Travis is neither

available for nor actively seeking suitable employment. See Stagg, 796 N.W.2d at 315.

Travis therefore is ineligible to receive benefits due to his unavailability for and failure to

actively seek suitable employment.

       Affirmed.




                                              9
