This opinion will be unpublished and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

A03-899

 

Eddie L. Davis,

Relator,

 

vs.

 

Stainlez Inc.,

Respondent,

 

Commissioner of Employment and Economic Development,

Respondent.

 

Filed April 6, 2004

Affirmed

Lansing, Judge

 

Department of Employment and Economic Development

File No. 1220 03

 

 

Eddie L. Davis, 3515 – 2nd Avenue South, Apartment 104, Minneapolis, MN 55408 (pro se appellant)

 

Stainlez, Inc., 7679 Archer Lane North, Maple Grove, MN 55311-2723 (respondent)

 

Lee B. Nelson, Katrina I. Gulstad, Minnesota Department of Employment and Economic Development, 390 North Robert Street, St. Paul, MN 55101 (for respondent Commissioner of Employment and Economic Development)

 

            Considered and decided by Halbrooks, Presiding Judge, Lansing, Judge, and Peterson, Judge.

 

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            Eddie L. Davis, by writ of certiorari, appeals an order of the Commissioner of Employment and Economic Development disqualifying him from receiving unemployment benefits.  The evidence reasonably supports the decision of the commissioner’s representative that Davis’s violations of the employer’s attendance policies constituted employment misconduct within the meaning of Minn. Stat. § 268.095, subd. 6(a) (2002), and we affirm.

F A C T S

            Stainlez Inc., a chemical tank valve rebuilder, employed Eddie Davis as a general laborer from October 19, 2001, through December 12, 2002.  Davis was regularly scheduled to work forty hours a week.  Stainlez provided Davis a copy of the attendance policy in force during Davis’s employment which stated that an “employee may not have more than five days of unexcused absences” in any given 365-day period, and that “a [l]ate show will be counted as one third of a sick day.”  The policy also stated that seven days of unexcused absences would result in termination.

            Within the first two-and-one-half months of employment Davis was late four times—twice one hour late and twice two hours late.  The chronic lateness continued; Davis reported late to work fifty-two times and was absent one day from March 11, 2002, to December 12, 2002.  On September 10, 2002, Davis signed a “Continued Employment Agreement” under which he agreed, in part, “to maintain a strict attendance regimen.”  Despite this agreement and oral warnings from his supervisor about tardiness, Davis was tardy twenty-six times after the warning before he was discharged.  Stainlez discharged Davis on December 12, 2002, for failure to wear safe footwear and for chronic lateness in violation of the attendance policy.

D E C I S I O N

            A person who is discharged for employment misconduct is not entitled to receive unemployment benefits.  Minn. Stat. § 268.095, subd. 4(1) (2002).  Employment misconduct is “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.”  Minn. Stat. § 268.095, subd. 6(a)(1) (2002).  Employment misconduct is also “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)(2) (2002).

Whether a former employee is disqualified from receiving unemployment benefits is a mixed question of fact and law.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  The determination of whether the employee committed a particular act or a series of acts is a determination of fact.  See Colburn v. Pine Portage Madden Bros., Inc., 346 N.W.2d 159, 161 (Minn. 1984).  Whether actions constitute unemployment misconduct is a legal determination.  Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996).  This court defers to the factual determinations of the commissioner’s representative if they are reasonably supported by evidence in the record, but we exercise independent judgment with respect to questions of law.  Id.

            Refusal to abide by an employer’s reasonable polices and requests ordinarily amounts to disqualifying misconduct.  McGowan v. Executive Express Transp. Enters., 420 N.W.2d 592, 596 (Minn. 1988).  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) (employer has right to expect employee to work when scheduled).  Excessive tardiness or absence, particularly after a warning, demonstrates an employee’s disregard of an employer’s interests.  McLean v. Plastics, Inc., 378 N.W.2d 104, 107 (Minn. App. 1985); Evenson v. Omnetic’s, 344 N.W.2d 881, 883 (Minn. App. 1984).

            Davis does not dispute that Stainlez’s attendance policy was reasonable or that he knew about the policy.  Instead, he disputes that he had fixed hours or that he was warned of his violations.  The commissioner’s representative found otherwise, and the record tends to support those findings.  The commissioner’s representative found that Davis had a set work schedule, that he was chronically tardy, that Stainlez’s operations manager warned Davis about his tardiness more than once, and that on September 10, 2002, Davis signed an agreement that stated he was to maintain a strict attendance regimen.  The agreement also stated that it superseded any other agreement, understanding, and communication.  Davis failed to comply with the agreement and was tardy twenty-six times between September 10, 2002, and December 12, 2002, when he was discharged.

            Davis also argues that his attendance record could not provide a basis for termination or misconduct because he rode to work with another employee who was not terminated for lateness or failure to comply with the attendance policy.  This argument is not persuasive because (1) Davis testified that he used this commuting arrangement ninety percent but not one hundred percent of the time, (2) the coworker testified that his employment was terminated about one month after Davis’s for, among other problems, failure to comply with the attendance policy, and (3) an employer’s selective enforcement of its rules is not a defense to a finding of unemployment misconduct.  Sivertson v. Sims Sec. Inc., 390 N.W.2d 868, 871 (Minn. App. 1986), review denied (Minn. Aug. 20, 1986).

            Stainlez reasonably expected Davis to follow its attendance policy and his agreement to maintain a strict attendance regimen.  Stainlez’s president testified that Davis’s lateness affected the company’s production because the “production is based off of several different stages and if one person isn’t there, then it stops the rest of the employees from being productive, too.”  Davis’s chronic lateness following warnings violates reasonable employer expectations and amounts to employment misconduct.

            Even if the failure to follow the attendance policy results from negligence or carelessness, rather than specific intention, it meets the second statutory definition of employment misconduct—“negligent or indifferent conduct . . . that demonstrates a substantial lack of concern for the employment.”  Minn. Stat. § 268.095, subd. 6(a)(2); see Jones, 361 N.W.2d at 120 (concluding that even if not deliberate or willful, chronic and excessive absenteeism demonstrated lack of concern for employment); McLean, 378 N.W.2d at 107 (excessive tardiness that may have been negligent rather than intentional constituted misconduct when employee was tardy thirteen times in year and received two warnings).

The evidence sufficiently supports the determination by the commissioner’s representative that Davis’s chronic lateness amounted to a failure to abide by Stainlez’s reasonable employment polices.  Because failure to abide by reasonable employment policies constitutes employment misconduct as a matter of law, we affirm the disqualification from benefits.

            Affirmed.