This opinion will be unpublished and

may not be cited except as provided by

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







Valerie A. Brewster,





Community Memorial Hospital,



Commissioner of Employment

and Economic Development,




Filed March 2, 2004

Klaphake, Judge


Department of Employment and Economic Development

File No. 18803 02


John M. Baker, H. Allen Blair III, Greene Espel, P.L.L.P., 200 South Sixth Street, Suite 1200, Minneapolis, MN  55402 (for relator)


Community Memorial Hospital, Winona Community Memorial Hospital, Attn:  William Gould, P.O. Box 5600, Winona, MN  55987-0600 (respondent employer)


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 Klaphake, Presiding Judge, Randall, Judge, and Harten, Judge.

U N P U B L I S H E D   O P I N I O N


            Relator Valerie Brewster challenges a decision by a representative of the respondent Commissioner of Employment and Economic Development that disqualified her from receiving unemployment benefits.  The commissioner’s representative determined that relator was disqualified because she was discharged from her employment with respondent Community Memorial Hospital for employment misconduct.  In this certiorari appeal, relator argues that because she was unable to find childcare and so informed her employer, her final absences on November 16 and 17 were beyond her control and did not amount to misconduct. 

            Because the evidence reasonably shows that in the 12 months prior to her discharge, relator was repeatedly late or absent, despite numerous warnings, we affirm the decision of the commissioner’s representative that relator’s behavior evinced an intentional disregard of her duties and obligations to her employer and a substantial lack of concern for her employment.


            Our review of unemployment insurance cases is limited to determining whether the record reasonably supports the decision of the commissioner’s representative.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995); Markel v. City of Circle Pines, 479 N.W.2d 382, 383-84 (Minn. 1992); Cent. Specs., Inc. v. Comm’r of Econ. Sec., 622 N.W.2d 833, 835 (Minn. App. 2001), review denied (Minn. May 15, 2001).

            An employee who is discharged for employment misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4(1) (2002).  Employment misconduct is defined to mean:

(1)  any intentional conduct, on 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) (2002).

            Here, over a 12-month period, relator was absent or late for work approximately 10 times; while she sometimes cited a reason for her absence or tardiness, such as family emergency or illness, she often offered no reason or disputed her employer’s claim that she had been absent on a particular day.  Her employer gave her at least one oral warning, three written warnings, and a suspension.  In August 2002, relator became aware that her childcare provider would not be available after November 14, 2002.  Although relator claims that she informed her employer and diligently looked for another childcare provider, she admitted that she stopped looking at the end of October.  She was discharged from employment after she failed to report for her scheduled shifts on November 16 and 17.

            At the hearing before the unemployment insurance judge, a representative of the employer testified that relator’s discharge did not stem “from any one particular incident but a pattern of incidents focused primarily around absenteeism and failure to follow hospital policy regarding call-ins for scheduled shifts when she wasn’t able to get there.”  The director explained that it was important for an employee to show up when scheduled to work or to call in at least two hours before if unable to work because in the “health care business it’s critical that we have the staff necessary to provide meals to both our patients and our residents[.]”  The director testified that hospital policy was clearly explained to relator on a number of occasions and that he personally met with relator to make sure she understood the hospital’s disciplinary process and the consequences of her failure to follow hospital policies regarding absences and reporting late for a shift.

An employee’s absence due to his or her inability to find childcare despite good faith efforts to locate care may not amount to misconduct in certain circumstances.  Prickett v. Circuit Science, Inc., 518 N.W.2d 602, 604-05 (Minn. 1994) (holding that employee’s failure to report for new shift assignment due to inability to find childcare does not constitute misconduct when employee demonstrated that he made good-faith effort, but was unable to find care, and maintained contact with employer); McCourtney v. Imprimis Tech., Inc., 465 N.W.2d 721, 724-25 (Minn. App. 1991) (holding that employee’s inability to obtain childcare for sick infant, which resulted in frequent and excused absences, did not constitute misconduct where employee made good faith efforts and each absence was due to circumstances beyond her control). 

Nevertheless, 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).  Thus, even if not willful or deliberate, a pattern of chronic and excessive absenteeism and tardiness may constitute misconduct.  Jones v. Rosemount, Inc., 361 N.W.2d 118, 120 (Minn. App. 1985).  Such conduct on the part of an employee, particularly after repeated warnings, is strong evidence of an employee’s disregard of an employer’s interest or lack of concern for the employment.  See, e.g., McLean v. Plastics, Inc., 378 N.W.2d 104, 107 (Minn. 1985); Little, 352 N.W.2d at 815; Jones, 361 N.W.2d at 120; Evenson v. Omnetic’s, 344 N.W.2d 881, 883 (Minn. App. 1984).

Here, the evidence establishes that relator was discharged not solely for her final two absences in November, but for her pattern of absences and tardiness, despite repeated warnings from her employer.  Because relator’s conduct demonstrated an intentional or indifferent disregard for her employer’s interests or a lack of concern for her employment, we affirm the decision of the commissioner’s representative that relator was discharged for employment misconduct.