This opinion will be unpublished and

may not be cited except as provided by

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







Robert L. Schlemmer,





Minneapolis Institute of Arts,



Commissioner of Employment and Economic Development,



Filed January 20, 2004


Willis, Judge


Department of Employment and Economic Development

File No. 14914 02


Peter B. Knapp, William Mitchell Law Clinic, Katherine Bischoff (certified student attorney), 875 Summit Avenue, St. Paul, MN  55105 (for relator)


Minneapolis Institute of Arts, c/o Personnel Office, 2400 Third Avenue South, Minneapolis, MN  55404-3506 (respondent)


Katrina Smith, Lee B. Nelson, Philip B. Byrne, 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 appeals from the decision of the Commissioner of Economic Security’s representative that relator’s discharge was the result of employment misconduct and that, therefore, he is ineligible for unemployment compensation.  Because the evidence reasonably supports the decision of the commissioner’s representative, and because relator engaged in employment misconduct, we affirm. 


Relator Robert L. Schlemmer was employed as a security guard at the Minneapolis Institute of Arts (MIA) from 1987 until August 2002.  In 1992, Schlemmer was diagnosed with depression and was treated with medication that caused him to suffer from insomnia.  Schlemmer regularly and voluntarily worked overtime, and he never requested to change his work schedule as the result of his depression or insomnia. 

The MIA considers an employee absent if, without prior notification, the employee is more than 30 minutes late for the scheduled start of a shift.  Between May 2002 and July 2002, Schlemmer was more than 30 minutes late for the start of his shift on five occasions.  At a July 9 meeting, Schlemmer’s supervisor told him that he would be suspended for one week without pay as a consequence for his absences.  Schlemmer responded by giving his supervisor documentation of his depression and explaining that he often overslept because of his insomnia.  Instead of suspending Schlemmer, the MIA entered into a “Last Chance Agreement” with him, whereby Schlemmer agreed that a further absence without proper notification within one year would result in his termination.

On August 10, 2002, Schlemmer worked from 9:44 a.m. until 6:15 p.m.  After a 30-minute break, Schlemmer began a voluntary overtime shift and remained at work until 12:39 a.m. on August 11.  He returned home, intending to report back to work for his scheduled shift at 8:00 a.m. that morning.  But Schlemmer overslept, and the MIA recorded an unexcused absence for August 11.  Schlemmer’s employment was terminated, and he was later denied unemployment benefits.  The commissioner’s representative upheld the denial, finding that Schlemmer’s conduct “evinced negligence of such a degree as to demonstrate a substantial lack of concern for his employment” and that the termination of his employment for employment misconduct made him ineligible for benefits.  This certiorari appeal follows.


This court reviews the decision of the commissioner’s representative rather than that of the unemployment-law judge.  See Weaver v. Minnesota Valley Labs., 470 N.W.2d 131, 133 (Minn. App. 1991).  We must defer to the representative’s findings of fact if the evidence reasonably supports them, but we exercise independent review of questions of law.  Smith v. Employers’ Overload Co., 314 N.W.2d 220, 221 (Minn. 1981).  Whether an employee committed the specific act or acts alleged to be misconduct is a question of fact for determination by the commissioner’s representative.  Scheunemann v. Radisson Hotel South, 562 N.W.2d 32, 34 (Minn. App. 1997).  Whether the specific act or acts constitute misconduct is a question of law, which this court reviews de novo.  Id.

            Schlemmer argues that he should not have been terminated for misconduct because his failure to show up was not intentional and he did not demonstrate a substantial lack of concern for his job.  “Employment misconduct” includes “any intentional conduct . . . that disregards the standards of behavior that an employer has the right to expect” and “negligent or indifferent conduct . . . that demonstrates a substantial lack of concern for the employment.”  Minn. Stat. § 268.095, subd. 6(a)(1)-(2) (2002).  A pattern of failing to follow procedures and ignoring directions demonstrates a substantial lack of concern for the employer’s interests.  Gilkeson v. Indus. Parts & Serv., Inc., 383 N.W.2d 448, 452 (Minn. App. 1986); see also Jones v. Rosemount, Inc., 361 N.W.2d 118, 120 (Minn. App. 1985) (citing “chronic and excessive” absenteeism as evidence of an employee’s lack of concern).

The commissioner’s representative did not find that Schlemmer’s failure to show up for his scheduled shift on August 11 was intentional, nor does the commissioner argue this on appeal.  Schlemmer contends that his conduct was not negligent or indifferent because a reasonably prudent person would have been as tired as he was on August 10 and also would have overslept.  He points to the fact that he set two alarm clocks as evidence that he was not negligent.  But Schlemmer demonstrated a pattern of failing to show up for work without giving appropriate notice, and he failed to comply with the “Last Chance Agreement” that resulted from this pattern.  Schlemmer did not take reasonable steps to avoid being late for work, such as working fewer or different hours or arranging for someone to telephone him or knock on his door to ensure that he woke up on time.  Indeed, he admitted in his testimony that he knew that his past attendance problems were in part the result of working too many hours.  We conclude, therefore, that Schlemmer’s conduct was negligent and demonstrated a substantial lack of concern for his employment.

            Schlemmer also argues that he is entitled to receive unemployment benefits because he was unable to work because of a serious illness.  Quitting employment will not disqualify an applicant from receiving unemployment benefits if “the applicant quit the employment because the applicant’s serious illness or injury made it medically necessary that the applicant quit.”  Minn. Stat. § 268.095, subd. 1(7) (2002).  While Schlemmer cites subdivision 1(7), nothing in the record indicates that he quit his job.  Rather, he was discharged for misconduct, and subdivision 6 contains no exception for misconduct related to illness.

Further, subdivision 1(7) requires that Schlemmer would have needed to make “reasonable efforts to remain [employed] in spite of the serious illness or injury.”  Id.  “Reasonable efforts” are those that “a reasonable individual would make if interested in remaining with the employer and require that the applicant . . . request accommodation.”  Id.  While Schlemmer informed his employer of his illness and his related insomnia, he did not request a schedule change, and he continued to work voluntary overtime.  We conclude, therefore, that Schlemmer did not make reasonable efforts to remain employed in spite of his illness.