This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






Gregory R. Johnson,





Gauthier Industries, Inc.,



Commissioner of Economic Security,



Filed May 6, 2003


Kalitowski, Judge


Department of Economic Security

File No. 310102


Gregory R. Johnson, P.O. Box 313, Preston, MN 55965-0313 (pro se relator)


Gauthier Industries, Inc., P.O. Box 6700, Rochester, MN 55903 (respondent)


Lee B. Nelson, M. Kate Chaffee, Department of Economic Security, 390 North Robert Street, St. Paul, MN 55101 (for respondent Commissioner of Economic Security)


            Considered and decided by Hudson, Presiding Judge, Kalitowski, Judge, and Minge, Judge.

U N P U B L I S H E D   O P I N I O N


            Relator Gregory Johnson challenges the finding of the commissioner’s representative that he was terminated for employment misconduct for repeated tardiness, arguing that (1) his tardiness was caused by a medical condition; (2) the employer did not follow its handbook discipline policy; (3) he was improving his tardiness each day; (4) the findings of fact were not supported by the record; and (5) the unemployment law judge did not adequately assist him in developing the facts about his medical needs.  We affirm.



            An individual who is discharged for misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4(1) (2002).  Whether an employee committed the acts in question is a question of fact.  Tilseth v. Midwest Lumber Co., 295 Minn. 371, 375, 204 N.W.2d 644, 645-46 (1973).  The representative’s findings are viewed in the light most favorable to the decision and will not be disturbed if evidence in the record reasonably tends to sustain those findings.  Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996).  Whether an employee’s acts constitute misconduct is a question of law on which we exercise our independent judgment.  Ress v. Abbot Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989). 

            Here, the commissioner’s representative found that relator had reported to work late five times, each time receiving a warning that the next incident of tardiness would lead to increased discipline.  See Jones v. Rosemount, Inc., 361 N.W.2d 118, 120 (stating that chronic and excessive absenteeism and tardiness, even if not deliberate or willful, may constitute misconduct).  Relator was clearly informed that he would receive two oral warnings, then a written warning, a three-day suspension, and then he would be terminated.  While this is not exactly the policy outlined in the company’s employee handbook, that handbook does not claim to be exclusive, and the record shows that relator was aware of the steps the company intended to pursue in his case. 

            On appeal, relator claims that he could not arrive at work on time because he had to take his thyroid medicine an hour before eating and that this medication made it impossible for him to rapidly adjust his schedule as requested by the employer.  But the record indicates that relator:  (1) did not specifically inform his employer that he was medically unable to perform the requested act; (2) did not seek any accommodation under  the Americans with Disabilities Act or the Minnesota Human Rights Act; and (3) did not seek medical documentation of his alleged illness until after he had been terminated.  Because relator failed to give proper notice to his employer, relator’s illness does not excuse his tardiness.  See Minn. Stat. § 268.095, subd. 6(2)(b) (2002) (employment misconduct does not include “absence because of illness or injury with proper notice to the employer.”).

            Relator also claims that he did not commit employment misconduct because he was improving his timeliness each day.  But being less late and being on time are not the same thing, and the employer had a reasonable expectation that relator would arrive on time.  Because relator failed to arrive on time, despite repeated warnings, and because relator failed to provide his employer with a medical reason for his tardiness, relator’s tardiness constituted employment misconduct.  See Jones, 361 N.W.2d at 120 (excessive lateness demonstrates employee’s disregard of the employer’s interest or lack of concern for the position). 

            Finally, relator claims that the unemployment law judge failed to help him develop the facts at his hearing.  As a pro se petitioner, relator claims the unemployment law judge had a duty to assist him in fully setting out his claim.  See Minn. R. 3310.2921 (2001) (stating that in economic security hearings, the referee “should assist unrepresented parties in the presentation of evidence.”).  But the record shows that the unemployment law judge engaged relator in a question-and-answer session at the hearing, gave relator ample opportunity to present the facts of his medical condition, and even helped develop those facts through questions.  Relator simply failed to show that he provided his employer with a substantiated medical explanation for his tardiness.  

            The record supports the findings of the commissioner’s representative.  Based on this record, we conclude that the commissioner’s representative did not err in determining that relator engaged in employment misconduct by repeatedly arriving late to work despite being warned that his tardiness could lead to termination.