This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).







Morris Wilson,





Merrick Community Services,



Commissioner of Economic Security,



Filed September 12, 2000


Peterson, Judge


Department of Economic Security

Agency File No. 281199


Morris Wilson, 4111 Second Avenue South, Minneapolis, MN  55409-1607 (pro se relator)


Merrick Community Services, 715 Edgerton Street, St. Paul, MN  55101 (respondent)


Kent E. Todd, Minnesota Department of Economic Security, 390 North Robert Street, St. Paul, MN  55101 (for respondent Commissioner of Economic Security)


            Considered and decided by Peterson, Presiding Judge, Crippen, Judge, and Willis, Judge.

U N P U B L I S H E D    O P I N I O N


Relator Morris Wilson seeks review of the commissioner’s representative’s determination that he was disqualified from receiving reemployment compensation benefits because he was discharged from his employment for misconduct.  We affirm.


            Respondent Merrick Community Services employed Wilson as a youth/family worker from September 20, 1994, through August 20, 1999.  Merrick presented evidence that Wilson had ongoing tardiness problems, beginning more than two years before his termination.  Vince O’Connor, Wilson’s supervisor from 1994 until two or three months before Wilson’s termination, testified that Wilson was frequently late, particularly for staff meetings, and often late by a significant amount of time.  A performance appraisal prepared by O’Connor evaluating Wilson’s performance from July through December 1996 stated:

            A chronic problem has developed with [Wilson] in relationship to work and that is tardiness which may be a matter of a few minutes and not infrequently 15 minutes to a half an hour or more.  This has been addressed by me often and on two occasions with me and the interim executive director.  Improvement has occurred in relation to the agency and counseling/case management meetings.


            An area that needs further improvement is being on time at the schools we serve and for his appointments.  The schools have complained.


O’Connor testified that, about two years before Wilson’s discharge, he and another staff person met with Wilson and discussed Wilson’s tardiness and how other employees felt that Wilson was receiving special treatment because he was not disciplined for being late.  O’Connor also testified that he had received calls from five schools where Wilson performed work for Merrick regarding Wilson’s tardiness.

            In 1999, as a result of a car accident, Wilson was on a medical leave of absence from work for about four months; his return date was August 4, 1999.  On July 28, 1999, O’Connor sent Wilson a letter, which stated:

            Upon your return, your schedule will be from 12:00 p.m.-8:00 p.m., Monday through Friday.  You will start your day either at the East Side Community Center or Merrick Community Center to sign in and provide the office staff with your schedule.  Because of your past history regarding timeliness, it is necessary for me to remind you that you need to be on time for work, appointments, agency meetings and other scheduled responsibilities.  Failure to do so will result initially in a verbal reminder.  A second incident of tardiness will result in a written reprimand.  If you are tardy a third time, you will be suspended one or more days without pay.  If you continue to be tardy, termination will be the only option.


            You are scheduled to meet with Mary Nestingen on Wednesday, August 4th at 2:00 p.m. at Merrick Community Center.


            Wilson did not report to work at 12:00 p.m. on August 4, 1999, but rather came in for the 2:00 p.m. meeting with Nestingen.  He testified, and the commissioner’s representative found, that Wilson had misread the July 28 letter and assumed that he did not have to report for work at 12:00 p.m. but could start at 2:00 p.m., the time of the scheduled meeting with Nestingen.  Nestingen testified that she gave Wilson an oral warning for being tardy on August 4.  The record also contains a memorandum from Nestingen to Merrick’s executive director, Francis Ivory, documenting the warning.

            On August 11, 1999, Nestingen gave Wilson a written warning because on that day, he was ten minutes late for work, missed a supervisory meeting scheduled for 4:30 p.m., and failed to pick up a youth in his program.  On August 18, 1999, Wilson called to say that he would not be at work until 12:30 p.m. due to car problems.  He did not arrive at work until almost 2:00 p.m.  The following day, Nestingen sent Wilson a letter stating that the August 18 incident was the third incident of tardiness since he had returned to work on August 4 and that he would be suspended from work for two days, Friday, August 20, and Monday, August 23, without pay.

            At Wilson’s request, Nestingen changed the suspension dates to August 23 and August 24, so Wilson could attend a youth department staff meeting scheduled for 1:00 p.m. on August 20.  Wilson, however, missed the meeting.  Later that day, Nestingen asked Wilson why he missed the meeting.  When Wilson replied that he forgot about it, Nestingen gave him a termination letter and told him that his employment at Merrick was terminated effective immediately.   Wilson testified that he forgot about the meeting because he was involved in a video project with youth clients.


            In a reemployment compensation proceeding, all fact issues shall be determined by a preponderance of the evidence, meaning

evidence in substantiation of a fact that, when weighed against the evidence opposing the fact, is more convincing and has a greater probability of truth.


Minn. Stat. § 268.03, subd. 2 (1998).  The commissioner’s representative’s fact findings must be viewed in the light most favorable to the decision and will be sustained on appeal if there is evidence reasonably supporting them.    Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995); McGowan v. Executive Express Transp. Enters., Inc., 420 N.W.2d 592, 594 (Minn. 1988).  This court, however, is not bound by the commissioner’s representative’s conclusions of law and may exercise its independent judgment on questions of law.  Id.

            An employee who is discharged from employment for “employment misconduct” is disqualified from receiving reemployment compensation benefits.  Minn. Stat. § 268.095, subd. 4(1) (Supp. 1999).  Whether an employee committed disqualifying misconduct is a mixed question of fact and law.  Colburn v. Pine Portage Madden Bros., Inc., 346 N.W.2d 159, 161 (Minn. 1984).  The determination whether the employee committed a particular act or acts is a question of fact.  Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  Whether those acts constituted misconduct is a question of law.  Id.

Employment misconduct means:

            (1) any intentional conduct, on the job or off the job, that disregards the standards of behavior that an employer has the right to expect of the employee or disregards the employee’s duties and obligations to the employer;  or

            (2) negligent or indifferent conduct, on the job or off the job, that demonstrates a substantial lack of concern for the employment.


Minn. Stat. § 268.095, subd. 6(a) (Supp. 1999).

Inefficiency, inadvertence, simple unsatisfactory conduct, poor performance because of inability or incapacity, or absence because of illness or injury with proper notice to the employer, are not employment misconduct.


Id., subd. 6(b) (Supp. 1999).

            Wilson argues that the July 28, 1999, letter incorrectly stated that he had previously had a problem with tardiness.  Wilson cites the absence of evidence that he had previously received written warnings or been placed on a probationary status as support for his claim.  But the commissioner’s representative found that before Wilson was on medical leave during the summer of 1999, he had a history of arriving late for work and for staff and case management meetings, that other staff members had complained to Merrick about the matter, and that Wilson had been warned more than once about his tardiness and missing meetings.  The evidence, specifically O’Connor’s testimony and the 1996 performance appraisal, supports these findings.

            Wilson also argues that Merrick failed to follow the disciplinary procedure set forth in the July 28 letter.  The letter stated that Wilson would receive an oral warning for the first incident of tardiness, a written warning for the second, and a two-day suspension without pay from work for the third.  The letter stated that if Wilson continued to be tardy, Merrick’s only option would be to terminate his employment.

            The evidence supports the commissioner’s findings that Wilson was late for work on August 4, was late for work and missed a meeting on August 11, and was late for work again on August 18.  Wilson denies that he received an oral warning.  But Nestingen’s testimony and her memorandum to Ivory support the commissioner’s representative’s finding that Wilson received an oral warning for being tardy on August 4.  Wilson received a written warning for being tardy on August 11.

            Wilson contends that Merrick failed to comply with the provision in the July 28 letter that he would be suspended before he was discharged.  On August 19, Wilson received a letter stating that his being late for work on August 18 was the third incident of tardiness and that he would be suspended from work without pay on Friday, August 20, and Monday, August 23.  The suspension was delayed until August 23 and 24 at Wilson’s request.  On August 20, after Wilson missed a scheduled staff meeting, Merrick terminated his employment effective immediately.

            Although Wilson was discharged before he served the suspension, the suspension had been delayed at his request.  The July 28 letter stated that Merrick could terminate Wilson’s employment upon a fourth incident of tardiness, and the August 19 letter expressly warned him that his being late for work on August 18 was the third incident of tardiness.  Therefore, as the commissioner’s representative found, after receiving the August 19 letter, Wilson “knew or should have known that one more incident of tardiness or missed meetings could result in immediate termination.”

            The evidence supports the commissioner’s representative’s findings, and those findings support the conclusion that Wilson was discharged from employment for employment misconduct.  See Jones v. Rosemount, Inc., 361 N.W.2d 118, 120 (Minn. App. 1985) (chronic and excessive absenteeism demonstrated a lack of concern by employee for her job and constituted misconduct, even though there was no showing that absenteeism was willful or deliberate); Evenson v. Omnetic’s, 344 N.W.2d 881, 883 (Minn. App. 1984) (employee’s continued tardiness after several warnings constituted misconduct).