This opinion will be unpublished and

may not be cited except as provided by

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







Berdina A. Gordon,





Metropolitan Council,



Commissioner of Employment and Economic Development,




Filed August 19, 2003


Halbrooks, Judge



Department of Employment and Economic Development

File No. 10500 02



Richard W. Pins, Leonard, Street and Deinard, 150 South 5th Street, Suite 2300, Minneapolis, MN 55402 (for relator)


Diane M. Cornell, Metropolitan Council, 230 East 5th Street, St. Paul, MN 55101-1634 (for respondent Metropolitan Council)


Lee B. Nelson, Philip B. Byrne, 390 North Robert Street, St. Paul, MN 55101 (for respondent commissioner)




            Considered and decided by Anderson, Presiding Judge, Shumaker, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N


            Relator challenges the commissioner’s representative’s determination that relator is disqualified from receiving unemployment benefits because she was discharged from employment for reasons amounting to employment misconduct under Minn. Stat. § 268.095, subd. 6 (2002).  Because the record reasonably supports the commissioner’s representative’s decision, and we conclude that relator committed employment misconduct, we affirm.


            Relator was employed as a bus driver for the Metropolitan Council (Met Council) in 1998.  Prior to June 2000, she began working as a secretary/receptionist in the Met Council’s human resources department.  In November 2000, relator received a memo from her supervisor, Joe Richardson, in which Richardson expressed concern about relator’s poor attendance and absenteeism.  Richardson listed 17 occasions in roughly five months on which relator was either late or absent without a valid excuse.  Richardson specifically stated in the memo, “I expect your attendance to improve immediately.  * * *  Should it not improve, * * * you will be subject to disciplinary action up [to] and including discharge.”  

In February 2001, it was noted in relator’s performance summary that reporting to work on time and on a regular basis required “much attention and work on the part of [relator][,]” and that relator had been warned many times regarding her attendance but that the issue remained a “major concern and performance issue for [relator].”  Relator ultimately received a rating of “unsatisfactory” regarding her attendance and punctuality.  Relator was placed on a performance improvement plan (PIP) to improve her attendance. 

In December 2001, relator’s job performance was again reviewed.  Once again, relator’s poor attendance was noted.  In the review summary, it was stated that, rather than improving since her last performance review, relator’s attendance had worsened.  The importance of punctuality and regular attendance for relator’s position of secretary/receptionist, because her position was the “spotlight” of the department, was noted.

            On January 2, 2002, relator telephoned the Met Council and indicated that she would not be in to work that day.  Based on that absence and on her past record of absenteeism, relator was suspended for two days without pay.  Relator received a written “Initial Warning” dated January 3, 2002, concerning the suspension.  The warning outlined specific steps that relator was required to take to improve her attendance.  But relator’s attendance did not improve over the next several months, and on May 30, 2002, her employment with the Met Council was terminated.  The termination memo identified ten occasions, from January 2 to May 28, 2002, on which relator was either late to work or called in stating that she would not be in at all.  The memo outlined the measures taken to help relator improve her attendance, but concluded by stating that all measures had failed and relator was, therefore, terminated effective May 30, 2002.

            Relator applied for unemployment benefits in June 2002.  Her application was denied because the Minnesota Department of Employment and Economic Development determined that relator had been discharged for absenteeism amounting to employment misconduct under Minn. Stat. § 268.095, subds. 4, 6 (2002).  Relator then appealed her disqualification, and a hearing before an unemployment law judge (ULJ) was held on August 7, 2002.  The unemployment law judge affirmed the department’s determination.  On appeal to the department’s commissioner’s representative, the commissioner’s representative affirmed the ULJ’s determination.


            On appeal to this court, decisions of the commissioner’s representative are accorded particular deference.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  The commissioner’s determination that an employee is disqualified for reasons of misconduct involves a mixed question of fact and law.  Colburn v. Pine Portage Madden Bros., 346 N.W.2d 159, 161 (Minn. 1984).  We review the commissioner’s representative’s factual findings in the light most favorable to the decision and will not disturb them if the record reasonably tends to sustain them.  Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996).  Whether an employee’s acts constitute misconduct is a question of law upon which this court is free to exercise its independent judgment.  Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).  

An employee who was discharged for misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4(1) (2002).  Misconduct includes:

            (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.


Id., subd. 6(a) (2002).  But misconduct does not include “absence because of illness or injury with proper notice to the employer.”  Id., subd. 6(b).

An employer has the right “to establish and enforce reasonable work rules relating to absenteeism.”  Jones v. Rosemount, Inc., 361 N.W.2d 118, 120 (Minn. App. 1985) (citations omitted); see also Little v. Larson Bus Serv., 352 N.W.2d 813, 815 (Minn. App. 1984) (stating that employer has right to expect employee to work when scheduled).  Even if not deliberate or willful, chronic and excessive absenteeism may demonstrate a lack of concern for the employment.  Jones, 361 N.W.2d at 120; see also McLean v. Plastics, Inc., 378 N.W.2d 104, 107 (Minn. App. 1985) (stating that excessive tardiness constituted misconduct when employee was tardy 13 times in year and had received two warnings).

The record contains ample evidence that relator maintained a very poor attendance record.  Relator had been informed on numerous occasions that the personal reasons for her absences at work needed to be dealt with so that she could be at work on time and on a regular basis.  Although the commissioner’s representative noted that appellant’s latest absence, to babysit her grandchild, may have been unavoidable, it was part of a history of absences for personal reasons that detrimentally affected her employer.  Based on the statute and pertinent caselaw, we conclude as a matter of law that relator’s frequent tardiness and absences constituted employment misconduct and we affirm the commissioner’s representative’s determination that relator should be disqualified from receipt of unemployment benefits.