This opinion will be unpublished and

may not be cited except as provided by

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







Christopher D. Bauer,





One Call Concepts, Inc.,


Commissioner of Employment and Economic Development,




Filed December 30, 2003


Anderson, Judge


Department of Employment and Economic Development

File No. 18339 02


Christopher D. Bauer, 14630 Garrett Avenue, # 606, Apple Valley, MN  55124 (pro se relator)


One Call Concepts, Inc., 2020 Centre Pointe Boulevard, Suite 310, Mendota Heights, MN  55120-1259 (respondent)


Lee B. Nelson, Philip B. Byrne, Minnesota Department of Employment and Economic Development, 390 Robert Street North, St. Paul, MN  55101 (for respondent commissioner)


            Considered and decided by Willis, Presiding Judge; Klaphake, Judge; and Anderson, Judge.


U N P U B L I S H E D  O P I N I O N




            Relator Christopher Bauer challenges the commissioner’s representative’s decision that he was discharged for employment misconduct due to his tardiness, arguing that his late arrivals were due to his medical disability and his inability to gain access to a computer.  We affirm.



            Bauer worked for One Call Concepts, Inc. (“One Call”) for approximately one year, and was late to work more than 90 times.  According to One Call policy, any individual who is late for work 12 times receives an oral warning, 16 times receives a written warning, 20 times receives a second written warning, and if late 24 times in a calendar year, the employee can be discharged.  During the course of the year, Bauer received two oral warnings and two written warnings for excessive tardiness.  Then, after being late to work approximately 40 times in a three-month period, Bauer was given a final warning that stated he had already accrued more than the maximum number of allowable tardy occurrences and was told that if he was late two more times during the remainder of the year he would be terminated.  After two more such events, One Call discharged Bauer because of Bauer’s repetitive tardiness pattern.  One Call’s documentation shows that while 41 of Bauer’s late arrivals were related to medical issues, 52 of his tardy occurrences were not related to medical issues.

            Bauer claims he was tardy (1) because he suffers from epilepsy, which was documented under the Family and Medical Leave Act of 1993 (“FMLA”) and submitted to One Call, and (2) because of the lack of office space and proper work equipment to both perform his job duties and to punch-in/log-on.

            After his employment was terminated, Bauer established a benefit account with the Minnesota Department of Employment and Economic Development.  In November 2002, the department disqualified Bauer from receiving unemployment benefits because Bauer was terminated for employment misconduct.  Bauer appealed; on appeal a department unemployment law judge reversed the initial determination.  One Call appealed that decision, and in May 2003 the agency issued its final decision concluding that Bauer was discharged for employment misconduct.  The commissioner’s representative found Bauer was late to work because he failed to manage his morning activities, not because of a medical condition.  This appeal followed.



            An employee discharged for misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4(1) (2002).  Bauer argues he should not be disqualified from unemployment benefits for misconduct because his tardiness resulted from a medical condition, which, under Minn. Stat. § 268.095, subd. 6(b) is not employment misconduct.[1]  Decisions of the commissioner’s representative are accorded particular deference.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  Whether an employee has engaged in conduct that disqualifies him from unemployment benefits is a mixed question of fact and law.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  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).  A determination of the commissioner’s representative regarding the reasons for an employee’s separation is a factual determination.  See, e.g., Markel v. City of Circle Pines, 479 N.W.2d 382, 383-84 (Minn. 1992).  We defer to the commissioner’s representative’s ability to weigh conflicting evidence.  Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995).  But whether the actions constitute misconduct is a question of law reviewable de novo on appeal.  Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).

            The commissioner’s representative determined, and Bauer concedes, that the reason for Bauer’s discharge was excessive tardiness.  Therefore, the only issue before this court is whether Bauer’s actions constitute misconduct.

            Employment misconduct is defined as conduct that “must (1) be intentional and (2) disregard standards of behavior the employer has a right to expect or [disregard] the employee’s duties and obligations to the employer.”  Houston v. Int’l Data Transfer Corp., 645 N.W.2d 144, 149 (Minn. 2002).[2]  Conduct is intentional if it is deliberate and not accidental.  Id.  “[T]he word ‘disregard’ includes intent that is separate and distinct from the intent to engage in the conduct in question.”  Id. at 150.  Therefore, in order to be disqualified on grounds of employment misconduct, there must be a sufficient showing in the record that the employee intended to engage in, or actually engaged in conduct that “evinced an intent to” ignore the employee’s duties and obligations or the standards of behavior the employer had a right to expect.  Id. 

            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).  Continued and repeated violations of an employer’s policy show a disregard for the employer’s standards.  See, e.g., Sivertson v. Sims Sec., Inc., 390 N.W.2d 868, 870-71 (Minn. App. 1986), review denied (Minn. Aug. 20, 1986).  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 a year and had received two warnings). 

            The record reflects Bauer had a very extensive history of tardiness.  The record also indicates that Bauer did have some medical conditions.  But there is little to no evidence indicating that the chronic nature of Bauer’s tardiness was linked to his medical conditions.  While arguably some of his excessive tardiness was caused by Bauer’s medical conditions, even when all of the medically related events are taken out of consideration, Bauer still was late far beyond company policy limits—limits which can only be characterized as generous.

Here, One Call’s policy on tardiness was very reasonable.  The policy required at least three warnings and allowed for 24 tardies before termination.  One Call warned Bauer on several occasions for excessive tardiness, stating Bauer “must understand that it is extremely important that he arrive for his scheduled shifts and arrive for them on time.”  One Call also warned Bauer that he risked termination of employment if he continued to violate the policies.  Despite these warnings, Bauer continued his pattern of tardiness.  Because Bauer’s actions constitute intentional disregard for One Call’s policies, warnings, and standards of behavior, his actions constitute disqualifying misconduct.


[1] Bauer also claims the FMLA and the Americans with Disabilities Act apply here.  But there are more than enough tardy notices unrelated to any medical condition, and therefore the two statutes do not apply.  Bauer also asserts his performance and attendance were affected by One Call’s unreasonable accommodations, which were in violation of Minn. Stat. § 363.03, subd. 1 (2002).  But Bauer did not make a request to One Call for accommodations that would relate to a medical issue or disability.  He did not ask for a later starting time, or for any action related to seizures, anxiety, depression, migraines, or any other medical condition.  His only complaint on record seems to be as to the malfunctioning computers and his co-workers.  Thus, his claim for relief under this statute also fails.

[2] At the time of the agency decision, “employment misconduct” was statutorily defined as follows:

(1)  [A]ny 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).  This definition was subsequently amended, effective August 1, 2003.