Hussein Elseweissy, Relator,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0887

Hussein Elseweissy,
Relator,

vs.

Gasthof Zur Gemutlichkeit,
Respondent,

Department of Employment and Economic Development,
Respondent.

Filed February 5, 2018
Affirmed
Rodenberg, Judge

Department of Employment and Economic Development
File No. 35034791

Hussein Elseweissy, Blaine, Minnesota (pro se relator)

Gasthof Zur Gemutlichkeit, Minneapolis, Minnesota (respondent employer)

Lee B. Nelson, Craig M. Gustafson, De partment of Employment and Economic
Development, St. Paul, Minnesota (for respondent department)

Considered and decided by Bjorkman, Presiding Judge; Rodenberg, Judge; and
Smith, Tracy M., Judge.

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U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
Relator Hussein Elseweissy appeals from an unemployment law judge’s finding that
relator was terminated from his job as a fu ll-time restaurant manager for employment
misconduct, rendering him ineligible for unemployment benefits. We affirm.
FACTS
Relator worked at the Gasthof Zur Gemutlichkeit restaurant from August 25, 2015
to January 4, 2017, most re cently as a full-time manager. On January 4, 2017, the
restaurant terminated relator’s employment after three incidents of claimed employment
misconduct.
First, on November 3, 2016, relator closed the restaurant early without permission.
The restaurant owner initially gave relator a verbal warnin g about this incident. On
December 18, the general manager completed a written disciplinary action form about the
November 3 incident. This written warning was given to relator on December 23. Upon
receiving the written warning, relator left work without approval or permission. Relator
admitted that when he was given the written warn ing, he got “really, really mad” and left
before his shift had ended. Additionally, relator was approved to have the night of
December 31 off of work on the condition that he come in to help with closing the
restaurant. Relator came to work after 11:00 p.m. on December 31 with some friends and
“was in no shape to work that night.” Finally, on January 1, 2017, Relator was scheduled
to be the closing manager but did not show up for work. Relator admitted that he was “no

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call/no show.” After these incidents, the re staurant terminated relator’s employment on
January 4, 2017.
Relator applied for unemployment benefits, and respondent Minnesota Department
of Employment and Economic Deve lopment initially found relato r eligible for benefits.
The restaurant appealed the e ligibility determination, stating that it believed that relator
“was trying to get fired to claim unemploymen t.” A telephone heari ng was held with an
unemployment law judge (ULJ) after which the ULJ found that relator had been discharged
because of employment misconduct and was therefore ineligible for unemployment
benefits. Relator requested reconsideration and the ULJ affirmed the initial decision.
This appeal followed.
D E C I S I O N
We may only “reverse or modify the [ULJ’s] decision if the substantial rights of the
[relator] may have been prejudiced because the findings, inferences, conclusion, or
decision” violate constitutional provisions, ex ceed the department’s statutory authority,
were made after an unlawful procedure, are ba sed on an error of la w, are unsupported by
the record evidence, or are arbitrary or capricious. Minn. Stat. § 268.105, subd. 7(d) (Supp.
2017). An employee who is discharged for employment misconduct is ineligible to receive
unemployment benefits. Minn. Stat. § 268.095, subd. 4(1) (Supp. 2017). “The question
of whether an employee engaged in cond uct that disqualifies him or her from
unemployment benefits is a mixed question of fact and law.” Wilson v. Mortg. Res. Ctr.,
Inc., 888 N.W.2d 452, 460 (Mi nn. 2016). Whether an empl oyee committed a particular
act is a question of fact. Skarhus v. Davanni’s Inc. , 721 N.W.2d 340, 344 (Minn. App.

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2006). We review factual findings “in the light most favorable to the decision and will not
disturb those findings as long as there is ev idence in the record that reasonably tends to
sustain them.” Wilson, 888 N.W.2d at 460 (quotations omitted). “Whether a particular act
constitutes disqualifying conduct is a question of law we review de novo.” Id. “Credibility
determinations are the exclusive province of the ULJ and will not be disturbed on appeal.”
Skarhus, 721 N.W.2d at 345.
The ULJ found that, on November 3, 2016, relator closed the business early; that on
December 23, 2016, relator left his shift early without permission after receiving a warning
for the November 3 incident; that on De cember 31, 2016, relator arrived to work
“intoxicated and . . . unable to help closing duties” after previously agreeing to help with
closing; and that on January 1, 2017, relator did not show up for his scheduled shift at the
restaurant. The ULJ went on to conclude that relator was discharged based on a “pattern
of conduct over a short period of time [that] displayed clearly a seri ous violation of the
standards of behavior the employer has the right to reasonably expect of the employee,”
constituting employment misconduct. Therefor e, the ULJ conclude d that relator is
ineligible for unemployment benefits.
During the hearing, relator admitted that he closed the restaurant early on
November 3, 2016, received a warning for this on December 23, 2016, left work early on
December 23, and was “no call/no show” for his shift on January 1, 2017. Regarding the
December 31 incident, relator testified that he came to work late that night but left because
the restaurant was slow and his help was no t needed. The restaurant’s general manager
testified that relator came in around 11:00 p.m. on December 31, but “was in no shape to

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work that night,” “wasn’t going to be much of assistance w ith the demeanor he was in,”
and “was just there to hang out with his fri ends.” The ULJ found the general manager’s
testimony regarding Decem ber 31 to be more credible th an relator’s testimony, “as it
referenced time records and . . . provided a detailed recollection of the night from a sober
perspective.”
The ULJ’s factual findings regarding relator’s conduct are reasonably supported by
the record. In fact, relator admitted to most of what the ULJ found. While there was some
dispute over what happened on December 31, we defer to the ULJ’s credibility
determinations. Skarhus, 721 N.W.2d at 344. The reco rd evidence supports the ULJ’s
factual findings.
We next review whether relator’s cond uct constitutes employment misconduct.
Employment misconduct is “any in tentional, 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. 6(a) (Supp. 2017). “[W]hether
the act committed by the employee constitute s employment misconduct is a question of
law, which we review de novo.” Skarhus, 721 N.W.2d at 344.
An employer has the right to establish reasonable work attendance rules for its
employees. Jones v. Rosemount, Inc., 361 N.W.2d 118, 120 (Minn. App. 1985). “Whether
an employee’s absenteeism and tardiness amounts to a serious violation of the standards of
behavior an employer has a right to expect depends on the circumstances of each case.”
Stagg v. Vintage Place Inc., 796 N.W.2d 312, 316 (Minn. 2011). Employers have the right

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to expect their employees to work when scheduled. Smith v. Am. Indian Chem.
Dependency Diversion Project, 343 N.W.2d 43, 45 (Minn. App. 1984). We have held “that
except in certain limited circumstances, an employee engages in misconduct if he is absent
even once withou t notifying his employer.” Del Dee Foods, Inc. v. Miller , 390 N.W.2d
415, 418 (Minn. App. 1986). Moreover, the supreme court has held that “an employee’s
expectation that the employer will follow its disciplinary procedures has no bearing on
whether the employee’s conduct violated the standards the employer has a reasonable right
to expect or whether any such violation is serious.” Stagg, 796 N.W.2d at 316.
Relator argues that the ULJ erred in find ing that his termination was because of
employment misconduct for three reasons. First, he argues that he di d not come to work
drunk on December 31, but rath er had the day off and there were two other managers on
duty that night. Second, relator argues that he had permission to close the restaurant early
on November 3 because the owner had said th at they could close early on days when
business is slow and that it was common to cl ose early. Third, relator argues that it was
improper to give him a written warning tw o months after the November 3 incident,
especially since the person issuing the warning was not the general manager at the time of
the incident. Relator’s arguments do not pers uade us that his conduct did not amount to
employment misconduct. Relator admitted to being “no call/no show” for his shift on
January 1, 2017, even after he had been told that he was not approved to have that day off.
Under Del Dee, that absence alone constitutes employ ment misconduct. 390 N.W.2d at
418. The ULJ found as a fact that relator closed the restaurant early on November 3 without
permission, left work early on December 23 without permission, and showed up “in no

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shape to work” on December 31 . These repeated incidents are such as to evidence a
disregard of the employer’s reasonable expectations. The fact that the written warning for
the November 3 incident was delayed by almost two months does not affect our analysis
of whether relator committe d employment misconduct. Stagg, 796 N.W.2d at 316. The
ULJ did not err in concludi ng that relator committed em ployment misconduct and is
therefore ineligible for unemployment benefits.
Affirmed.