This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
Wrecker Services, Inc.,
Commissioner of Employment
and Economic Development,
Filed March 30, 2004
Department of Employment
and Economic Development
File No. 1198 03
Michael Bowman, 1142 – 14th Avenue Southeast, Minneapolis, Minnesota 55414 (pro se relator)
Wrecker Services, Inc., 200 East Lyndale Avenue North, Suite 100, Minneapolis, Minnesota 55405-1501 (respondent)
Lee B. Nelson, Katrina I. Smith, Minnesota Department of Employment and Economic Development, 390 North Robert Street, St. Paul, Minnesota 55101 (for respondent commissioner)
Considered and decided by Stoneburner, Presiding Judge; Anderson, Judge; and Hudson, Judge.
U N P U B L I S H E D O P I N I O N
On appeal from the commissioner’s representative’s finding of employment misconduct, relator contends he did not intentionally ignore his employment duties or violate the standards of conduct expected by his employer because he was never warned that his employment could be terminated for arriving to work late. Because the record reasonably tends to support the findings of the commissioner’s representative, we affirm.
Even after relator’s suspension ended, he continued to arrive to work late. On October 11, 2001, Rose testified that she warned relator that if he continued to arrive to work late it could result in suspension or termination. Despite this warning relator was reprimanded again on November 30, 2001, for arriving to work late four out of five days during that week. On December 22, 2001, relator missed a mandatory training meeting. Relator admits that he knew about the meeting, but he testified that he did not attend the meeting because he was visiting his grandfather in the hospital. After arriving late again on December 23, 24, and 25, relator’s employment was terminated on December 26, 2001. The Department of Employment and Economic Development (the department) determined that relator was ineligible for benefits, and the unemployment law judge affirmed this determination. Relator appealed the unemployment law judge’s determination, and the commissioner’s representative affirmed the unemployment law judge’s determination. 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., Inc., 470 N.W.2d 131, 133 (Minn. App. 1991). We must defer to the commissioner’s representative’s findings of fact if the evidence reasonably supports them, but we exercise independent review over 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 S. Hotel, 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.
Relator argues that he did not intentionally commit employment misconduct because he was never warned that Wrecker would dismiss him for arriving to work late. He contends that Wrecker made up the reprimands that it brought to the unemployment hearing. Wrecker contends that relator was verbally warned on numerous occasions that continued tardiness was unacceptable.
When there is inconsistent testimony in the record, we defer to the credibility determinations of the commissioner’s representative. Nyberg v. R.N. Cardozo & Brother Inc., 243 Minn. 361, 364, 67 N.W.2d 821, 823 (1954); Heitman v. Cronstroms Mfg., Inc., 401 N.W.2d 425, 427 (Minn. App. 1987). Here, the commissioner’s representative found the testimony of Wrecker’s representatives more credible than that of relator by concluding that Wrecker discharged relator for employment misconduct because he was consistently tardy for work, received several warnings about his tardiness, continued to be tardy after receiving warnings and a suspension, and intentionally missed a mandatory training meeting. The record supports the commissioner’s representative’s findings. Wrecker produced copies of multiple documents from the employee file that described instances where relator was verbally warned about being tardy. In addition, Wrecker provided copies of relator’s time cards for the end of October 2001 through the end of December 2001, which showed that relator was late several times during this period. Moreover, relator testified that he may have been warned once or twice about arriving to work late. Finally, relator testified that he knew about the mandatory training meeting on December 22, 2001, but did not attend the meeting.
Based on the commissioner’s representative’s findings, we conclude that relator’s actions constituted employment misconduct. “Employment misconduct” is defined as any intentional conduct that “disregards the standards of behavior that an employer has the right to expect of the employee” or any negligent conduct that “demonstrates a substantial lack of concern for the employment.” Minn. Stat. § 268.095, subd. 6(a) (2002). “The 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) (citation omitted). Evenson v. Omnetic’s, 344 N.W.2d 881, 883 (Minn. App. 1984) (violating policy manual by reporting late without explanation constituted misconduct); McLean v. Plastics, Inc., 378 N.W.2d 104, 106-07 (Minn. App. 1985) (arriving late 13 times in 12 months after receiving two warnings constituted misconduct). Excessive tardiness or absences, particularly after warnings, may evidence an employee’s disregard of an employer’s interest or lack of concern for the employment. Evenson, 344 N.W.2d at 883.
Relator’s chronic tardiness, even after receiving numerous warnings, evinces an intent to disregard the wishes of his employer. Such conduct represents his lack of concern for the job and disregard for his employer’s interest.