This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).








Suzanne M. Payne,





U S Bancorp Information,



Commissioner of Economic Security,




Filed May 29, 2001


Schumacher, Judge


Department of Economic Security

File No. 300300



Suzanne M. Payne, 1292 Avon Street North, St. Paul, MN 55117-4004 (pro se relator)


U S Bancorp Information Services, Inc., Attention Robin Green, Minneapolis Location #0010, Post Office Box 6007, Omaha, NE 68106 (respondent)


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


            Considered and decided by Schumacher, Presiding Judge, Anderson, Judge, and Foley, Judge.*

U N P U B L I S H E D   O P I N I O N


            Relator Suzanne M. Payne challenges the commissioner's representative's decision that she was discharged for employment misconduct and thereby disqualified from receiving reemployment compensation benefits.  We affirm.


            Payne was employed by respondent U S Bancorp Information as an account specialist.  In March 1999 Payne suffered a grand mal seizure and was placed on medication.  Payne's medication caused her to have short-term memory problems, fatigue, and difficulty getting up in the morning.  As a result, she was late for work on several occasions.  U S Bancorp warned Payne about her tardiness verbally and in writing, and asked her to call her supervisor if she was going to be late.  Payne said she preferred to go directly to work and explain when she got there rather than take the time to call.  U S Bancorp also offered to change Payne's schedule, but Payne refused because she did not want to have a later starting time.

Payne was 10 to 30 minutes late for work 14 times between December 15, 1999 and January 31, 2000.  She was given a final warning on February 2, 2000 that stated "[a]ny additional tardiness occurrences will result in further disciplinary action, up to and including termination, without additional warning periods."  Payne arrived 20 minutes late for work on February 16, 2000, without calling, and she was discharged on February 23, 2000.

The Department of Economic Security disqualified Payne from receiving benefits based on employment misconduct.  Payne appealed the decision, and the disqualification was reversed.  U S Bancorp appealed to the commissioner's representative, who reversed and reinstated the disqualification.


            In economic security cases, the commissioner's representative's findings of fact are viewed in the light most favorable to the decision and will not be disturbed if there is reasonable evidence to support them.  McGowan v. Executive Express Transp. Enters., 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 such issues.  Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989); McGowan, 420 N.W.2d at 594.

            An employee discharged for misconduct is disqualified from receiving reemployment compensation benefits.  Minn. Stat. § 268.095, subd. 4(1) (Supp. 1999).  The statute defines disqualifying misconduct as

            (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).

            Excessive tardiness has been held to constitute disqualifying employment misconduct.  See Evenson v. Omnetic's, 344 N.W.2d 881, 883 (Minn. App. 1984) (continued tardiness combined with warnings violates standards of behavior the   employer had a right to expect).

            Payne insisted her actions were unintentional and did not show a lack of concern for her job, and she was attempting to improve the situation.  Payne, however, was offered the opportunity to change her work hours to a later start time and she declined.  Even unintentional tardiness has been held to constitute employment misconduct.  See McLean v. Plastics, Inc., 378 N.W.2d 104, 106-07 (Minn. App. 1985) (chronic and excessive tardiness, though not willful or deliberate, showed lack of concern for job); Jones v. Rosemount, Inc., 361 N.W.2d 118, 120 (Minn. App. 1985) (pattern of persistent absences showed negligent behavior toward employer regardless of reason for absences). 

Absence caused  by illness or injury is not employment misconduct if proper notice is provided to the employer.  Minn. Stat. § 268.095, subd. 6(b) (Supp. 1999).  Payne, however, failed to call in on the days she was running late, despite the employer's requests.  See Gustafson v. IRC Indus., 374 N.W.2d 594, 597 (Minn. App. 1985) (failure to notify employer of expected absences or tardiness constitutes employment misconduct).  Payne's repeated tardiness, failure to notify the employer in advance, and unwillingness to change her schedule all show "negligent or indifferent conduct * * * that demonstrates a substantial lack of concern for the employment."  Minn. Stat. § 268.095, subd. 6(a) (Supp. 1999).

The commissioner's representative did not err in determining that Payne was discharged for employment misconduct and was disqualified from receiving reemployment compensation benefits.


* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.