This opinion will be unpublished and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
Patricia A. Almlie,
United Healthcare Services, Inc.,
Commissioner of Employment and Economic Development,
Department of Employment and Economic Development
File No. 20115-03
United Healthcare Services, Inc., c/o Talx UCM Services Inc., P.O. Box 283, St. Louis, MO 63166-0283 (respondent)
Lee B. Nelson, Department of Employment and Economic Development, E200 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101 (for respondent commissioner)
Considered and decided by Toussaint, Chief Judge; Huspeni, Judge; and Crippen, Judge.*
U N P U B L I S H E D O P I N I O N
On certiorari appeal, relator challenges the decision of the commissioner’s representative that she was discharged for employment misconduct and is, therefore, disqualified from receiving unemployment benefits. Because we conclude that the commissioner’s representative’s findings of fact have reasonable evidentiary support and that those findings support his conclusion that relator was discharged for employment misconduct, we affirm.
Relator Patricia Ann Almlie began working as an intake coordinator for respondent United Healthcare Services, Inc., in December 2000. On May 1, 2003, the employer implemented a new company-wide attendance policy, which called for more serious disciplinary measures resulting from accumulated “occurrences in a six month growing period.” Under the policy, any absence without 48 hours prior notice to the employer would equal one occurrence. Two instances of arriving late or leaving early would also equal one occurrence, but absences of less than two hours could be made up the same workday, thereby avoiding an occurrence. The policy called for an oral warning after four occurrences, a written warning after five occurrences, a final written warning after six occurrences, and consideration of discharge after the seventh occurrence. Occurrences prior to May 1 were not to be counted against the employees under the new policy.
Relator accumulated seven occurrences under the new policy, for which she was ultimately discharged. On May 12, 2003, she had an unplanned absence, which counted as her first occurrence. Her second occurrence was on June 2, 2003, based on her tardiness on May 14 and leaving early on June 2. Her third occurrence was on June 3, 2003, due to another unplanned absence. Her fourth occurrence was on June 16, 2003, caused by tardiness on June 9 and June 16. A fifth occurrence was on June 23, 2003, due to another unplanned absence. Between occurrences, there was “a lot of dialogue” between the employer and relator about her attendance; on June 26, 2003, she was issued a written warning, and the employer suggested at that time that if relator’s absences were for medical reasons she should look into intermittent Family Medical Leave of Absence (FMLA) assistance to cover those absences. Despite the written warning, relator had a sixth occurrence on September 11, 2003, due to another unplanned absence. She was issued a final written warning the next day. Relator was then tardy on September 23, 2003, and again on October 15, 2003. Because these acts constituted relator’s seventh occurrence, the employer discharged relator on October 20, 2003 for “poor attendance.”
Relator subsequently established a benefits account with the Department of Employment and Economic Development. A department adjudicator initially determined that relator was not disqualified from receiving unemployment benefits, and the employer appealed. At the hearing before the unemployment law judge (ULJ), relator testified that all her occurrences were due to various health problems, except that she was tardy on June 9 because of car trouble and was absent on September 23 because her cat knocked over her alarm clock. Relator also testified that she was actually on time on June 16 and had problems logging in, but the employer disputed this contention. A representative of the employer testified that even if an employee calls in sick or gets permission to leave early, the absence still counts as an occurrence under the policy unless 48 hours’ notice is given. Relator acknowledged that she had failed to give 48 hours’ notice for her absences. Following the hearing, the ULJ concluded that relator was discharged for misconduct and was disqualified from receiving unemployment benefits. On appeal from that decision, the commissioner’s representative affirmed.
On appeal, we accord particular deference to the decision of the commissioner’s representative. Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995). Whether an employee committed a specific act of misconduct is a question of fact. Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997). We review the commissioner’s representative’s factual findings in the light most favorable to the decision, and we will not disturb those findings if the record reasonably tends to sustain them. Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996). Further, this court defers to the commissioner’s representative’s ability to weigh conflicting evidence and to make credibility determinations about proffered testimony. Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995); see also Jenson v. Dep’t of Econ. Sec., 617 N.W.2d 627, 631 (Minn. App. 2000), review denied (Minn. Dec. 20, 2000). But whether an employee’s acts constitute misconduct is a question of law, which we review de novo. Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).
An employee who is discharged for employment misconduct is disqualified from receiving unemployment benefits. Minn. Stat. § 268.095, subd. 4 (Supp. 2003). Employment misconduct is defined as “any intentional, negligent or indifferent conduct, on the job or off the job (1) that evinces a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee, or (2) that demonstrates a substantial lack of concern for the employment.” Minn. Stat. § 268.095, subd. 6(a) (Supp. 2003); see also Bray v. Dogs & Cats Ltd. (1997), 679 N.W.2d 182, 186 (Minn. App. 2004) (recognizing that in “cases arising from conduct that occurred after August 1, 2003, the August 1, 2003 changes will be applied”). Absence because of illness or injury is not considered misconduct, but only if “proper notice” is given to the employer. Minn. Stat. § 268.095, subd. 6(a).
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). Even if not willful or deliberate, chronic and excessive absenteeism and tardiness may amount to misconduct. Id. Such conduct on the part of an employee, particularly after repeated warnings, is strong evidence that the employee disregards the employer’s interests or lacks concern for the employment. See, e.g., McLean v. Plastics, Inc., 378 N.W.2d 104, 107 (Minn. App. 1985); Jones, 361 N.W.2d at 120; Little v. Larson Bus Serv., 352 N.W.2d 813, 815 (Minn. App. 1984); Evenson v. Omnetic’s, 344 N.W.2d 881, 883 (Minn. App. 1984). Likewise, an employee who fails to properly notify an employer of intended absences and fails to comply with policies regarding attendance demonstrates a lack of concern for the employment and commits disqualifying misconduct. See Edwards v. Yellow Freight Sys., 342 N.W.2d 357, 359 (Minn. App. 1984) (holding that employee committed misconduct by repeatedly failing to comply with employers regulation to provide two-hours advance notice when unable to report for work).
Here, the commissioner’s representative found that within six months of the new attendance policy being implemented, relator was absent on four occasions and was tardy or left early on six occasions. He also found that relator was warned on at least two occasions about her excessive absenteeism prior to her discharge, and that the employer suggested that relator apply for intermittent FMLA if her absences were for medical reasons, but relator did not do so. Ultimately, the commissioner’s representative concluded that relator had “developed a pattern of chronic and frequent absenteeism” and that while “[s]everal of her absences and late arrivals appear to have been due in some degree to medical reasons . . . several . . . were due to other reasons within [her] control.”
We conclude that the record supports the commissioner’s representative’s findings and demonstrates that relator was properly discharged for employment misconduct. At the hearing, a representative of the employer testified in detail about the terms of the attendance policy, which explicitly stated that employees would be terminated after seven occurrences within a six-month period. The evidence established that relator was aware of the policy and expressed concern in several emails over whether she would be fired due to her absences, but continued to be absent or tardy despite several warnings.
Furthermore, while relator may have had ongoing medical issues to some degree, not all her absences were definitively related to those issues. Relator admits that she was late on one occasion because of car trouble and on another occasion was absent because her cat knocked over her alarm clock. She also claimed that she was late on one occasion because of difficulties logging into the computer system, though her employer disputed this contention. In fact, relator points to only one date where her tardiness was due to dizziness from new medication, and one date where her absence was “probably due to migraines.” Further, relator failed to explain why she chose not to make up time lost by leaving early or arriving late in order to avoid an occurrence, or to apply for FMLA leave as suggested by the employer when medical problems prevented attendance at work.
Therefore, we conclude that the commissioner’s representative properly determined that relator had “demonstrated a substantial lack of concern for her employment” and was, therefore, disqualified from receiving unemployment benefits.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 The revisor’s office inadvertently substituted the term “ineligible for” for the term “disqualified from” in Minn. Stat. § 268.095, subds. 1, 4, 7, 8(a) (Supp. 2003). See Minn. Stat. § 268.095, subds. 1, 4, 7, 8(a) (2002) (using term “disqualified from”); 2003 Minn. Laws 1st Spec. Sess. ch. 3, art. 2, § 11 (making other changes to Minn. Stat. § 268.095, subd. 1, but retaining term “disqualified from”); 2003 Minn. Laws 1st Spec. Sess. ch. 3, art. 2, § 20(j), (k) (directing revisor to change the term “disqualified from” to “ineligible for” only in Minn. Stat. § 268.095, subd. 12, and then to renumber the subsection to Minn. Stat. § 268.085, subd. 13b).