This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-00-2119

 

Timothy D. McGrane,

Relator,

 

vs.

 

Midwest Publishing MN Inc.,

Respondent,

 

Commissioner of Economic Security,

Respondent.

 

Filed August 7, 2001

Affirmed

Randall, Judge

 

Department of Economic Security

File No. 660100

 

Timothy D. McGrane, 2672 Spruce Place, White Bear Lake, MN 55110-4954 (pro se relator)

 

Midwest Publishing MN, Inc., 10844 North 23rd Avenue, Phoenix, AZ 85029 (respondent employer)

 

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

 

Considered and decided by Schumacher, Presiding Judge, Randall, Judge, and Anderson, Judge.

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

R. A. RANDALL, Judge

Relator challenges the decision by the commissioner's representative that he was discharged for misconduct and thus disqualified from receiving unemployment benefits. He argues that the company did not have a written policy about tardiness or absenteeism; he was told he could make up time when he was late; he was not aware that he could be terminated for absenteeism and tardiness; he never exceeded the vacation/personal days he was allowed; and others were similarly absent and tardy. We affirm.

FACTS

The commissioner's representative found that relator Timothy McGrane was absent or late numerous times during his employment with Midwest Publishing MN, Inc. He received oral warnings during the early years of his employment. More recently, in 1999, relator received a written warning and was suspended for three days for unexcused tardiness on three prior occasions that month. Following excused absences for surgery, relator did not report to work on the day he indicated he would or for the next two days. After finally returning to work, relator left without authorization shortly after his arrival.

On June 13, 2000, relator did not report to work or call the employer. The employer suspended relator the following day. On June 15, the employer met with relator to discuss his absenteeism and tardiness. Again, on June 21, 2000, relator did not report to work and called two hours after his start time to report that he "just woke up." No further explanation was given, and relator was discharged for absenteeism and tardiness. The commissioner's representative found that relator committed misconduct, and relator was denied benefits. This appeal followed.

D E C I S I O N

An employee discharged for misconduct is disqualified from receiving unemployment benefits. Minn. Stat. 268.095, subd. 4(1) (2000). Even if not willful or deliberate, excessive absenteeism and tardiness may amount to misconduct. Jones v. Rosemount, Inc., 361 N.W.2d 118, 120 (Minn. App. 1985). Likewise, excessive tardiness or absences, particularly after warnings, may evidence an employee's disregard of an employer's interest. Evenson v. Omnetic's, 344 N.W.2d 881, 883 (Minn. App. 1984).

Relator first argues he should not be denied benefits because there was no written policy regarding absenteeism and tardiness, he was not aware he could be fired for being absent and tardy only for "write-ups," and he was told he could "make up" the time. We disagree. First, it is true that the employer did not have a written policy regarding absenteeism and tardiness, but relator was repeatedly warned orally and in writing that his absences and tardiness were a problem. Second, while relator argues that he believed he could be fired only for "write-ups," he does not deny that he did receive written as well as oral warnings and was suspended twice for absenteeism and tardiness. Third, relator's superior testified that he told relator he had to make the time up when he was late, and that he was "not excusing his lateness." This superior also told relator that "major absenteeism [was] unacceptable." Even relator acknowledged during testimony that his superior "did mention [that there was] a structure." An "employer has a right to expect an employee to work when scheduled." Little v. Larson Bus Serv., 352 N.W.2d 813, 815 (Minn. App. 1984) (citation omitted). Relator's arguments do not support his claim that he did not commit misconduct.

Next, relator argues he had unused vacation time to cover the absences, and other persons were similarly late. The argument is not persuasive. It is true that relator had sufficient vacation days to cover his absences, but he fails to account for his lack of proper notice to the employer prior to the absences. See Moeller v. Minnesota Dept of Transp., 281 N.W.2d 879, 882 (Minn. 1979) (stating employee's failure to properly notify employer of absence considered employment misconduct). Further, from a legal standpoint, "[v]iolation of an employer's rules by other employees is not a valid defense to a claim of misconduct." Dean v. Allied Aviation Fueling Co., 381 N.W.2d 80, 83 (Minn. App. 1986).

We find that on this record the commissioner's representative properly determined that relator's actions constituted misconduct. The findings of fact are supported by the evidence, and the findings support the conclusion of employee misconduct.

Affirmed.