This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






Theartis Neal, Jr.,





Pro Staff,



Department of Employment and Economic Development,



Filed December 6, 2005


Minge, Judge


Department of Employment and Economic Development

Agency File No. 16793 04


Theartis Neal, Jr., 2246 Clark Street, Eagan, MN 55112 (pro se relator)


Pro Staff, Dobbs Temporary Services, Inc., Maple Grove Location, 5215 North O’Connor Blvd., Suite 925, Irving, TX 75039-3736 (respondent)


Linda Alison Holmes, Department of Employment and Economic Development, 332 Minnesota Street, Suite E200, St. Paul, MN 55101-1351 (for respondent DEED)


            Considered and decided by Willis, Presiding Judge; Minge, Judge; and Worke, Judge.

U N P U B L I S H E D   O P I N I O N

MINGE, Judge


            Relator challenges the determination of the senior unemployment review judge (SURJ) that relator is disqualified from unemployment benefits because he was discharged for misconduct.  Because relator’s tardinesses and absences in violation of his employer’s attendance policy constituted misconduct, we affirm.


            On certiorari appeal, this court reviews the decision by the SURJ.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  Disqualification from receipt of unemployment benefits due to employment misconduct presents a mixed question of law and fact.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  Whether an employee committed the specific acts alleged to be misconduct is a question of fact for determination by the SURJ.  Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  The factfinder will weigh the evidence, determine credibility, and make a decision regarding the reasons for the discharge.  Id.  The findings of fact are viewed in the light most favorable to the SURJ’s decision, and will not be disturbed if the evidence reasonably tends to sustain the findings.  Ress v. Abbott Nw. Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).  Whether the employee’s acts constitute misconduct is a question of law that this court reviews de novo.  Schmidgall,644 N.W. 2d at 804. 

            Misconduct is defined as “any intentional, negligent, or indifferent conduct . . . (1) that displays clearly a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee, or (2) that displays clearly a substantial lack of concern for the employment.”  Minn. Stat. § 268.095, subd. 6 (a) (2004).  Historically, both absence and tardiness have been considered misconduct.  See, e.g., Del Dee Foods, Inc. v. Miller, 390 N.W.2d 415, 418 (Minn. App. 1986) (“[A]n employee engages in misconduct if he is absent even once without notifying his employer.”); Evenson v. Omnetic’s, 344 N.W.2d 881, 883 (Minn. App. 1984) (holding that repeated tardiness, particularly when combined with an employer’s warnings, is misconduct for the purposes of unemployment compensation).

            Relator Theartis Neal worked on the night shift for respondent Pro Staff for six weeks, when he was discharged for violations of respondent’s attendance policy.  A department adjudicator initially determined that relator had been discharged for misconduct; an unemployment law judge (ULJ), after a hearing, reversed that determination.  A SURJ, after conducting a de novo review, reversed the ULJ and concluded that because “[relator’s] indifferent attitude about his attendance clearly displayed a serious violation of the standards of behavior an employer has the right to reasonably expect of an employee and a substantial lack of concern for his employment, he was properly discharged for misconduct.”

Relator was aware of respondent’s attendance policy.  It provided that employees would be discharged after six “occurrences.”  Employees received half an occurrence if they were less than two hours late or if they left work with their supervisor’s approval.  They received a full occurrence if they were more than two hours late, left work without the approval of their supervisor, or were absent from work after calling in less than one hour before their shift.  They received two occurrences if they were absent and did not call in.

            Relator was discharged after the employer determined that he had six and one half occurrences.  He had received one and one half occurrences for three instances of being less than two hours late, and one full occurrence for being more than two hours late.  He received two occurrences for being absent and not calling in on September 11, 2004, and two occurrences for leaving work on September 25, 2004, and not returning during the assigned work period. 

            On October 6, 2004, the manager called relator to say that he was discharged due to tardiness and absences.  Since relator was not home, his manager left a phone message regarding the discharge.  Relator did not receive the message and went to work on October 7, arriving 35 minutes late.  This late arrival would constitute another half occurrence.

             Relator disputes two of the attendance violations.  First, he claims that, on September 11, he called in and left a message that he would not be at work for personal reasons.  However, the manager testified that relator did not give any explanation for his absence on that date and never called in.  This conflict over whether relator called is a factual dispute.  The SURJ’s determination that relator failed to call is supported by substantial evidence and this court accepts that finding.

            Relator asserts that, on September 25, he discussed his plan to leave work with his supervisor and was told that he would receive half an occurrence for leaving in violation of the attendance policy.  The employer claims, and the SURJ found, that there was not a representation that the situation would constitute only half an occurrence.  Based on our limited review, we accept the factual determination of the SURJ.  Under this analysis, relator would have whatever penalty or “occurrence” assessment is appropriate under the employer’s policy.  The employer states that it assessed one occurrence for leaving without permission and a second occurrence for not returning.  However, the employer’s written policy states that leaving without permission is one occurrence and states nothing about assessing a second occurrence for not returning.  The SURJ made no finding as to what is the policy.  Although leaving work may be significant, absent a policy provision for an extra occurrence, the penalty for leaving is covered in the policy as written.  Based on the undisputed record before us, we determine that the policy only provided for, and relator should have only received one, occurrence for leaving work on September 25.

            Relator claims that he did not have six occurrences at the time of his discharge, that the discharge was inconsistent with the attendance policy and that in any event, his value as an employee offset any attendance problem.  As we previously noted, determinations as to whether undisputed facts constituted employment misconduct are questions of law which we review de novo.  Schmidgall, 644 N.W.2d at 804.  In situations where an employer has a clear policy that defines what tardiness and absenteeism will be grounds for dismissal, that policy defines what is tolerated by an employer.  Absenteeism which is tolerated is presumably not misconduct.  See 76 Am. Jur.2d Unemployment Compensation § 92, at 831 (2005).

            In this proceeding, relator actually did have six occurrences by the time the employer successfully notified him of his discharge on October 7, because relator came to work over half an hour late on that date.  Thus, his discharge was proper under the policy and constituted misconduct.

            Relator also asserts that he was working hard to improve as an employee and should not have been discharged.  Although relator’s efforts at self-improvement are laudable, the state unemployment compensation system is not obligated to pay benefits to employees when their work situation constitutes misconduct and the employer has dismissed them.  Relator had to convince his employer to overlook the absenteeism and to accept his self-improvement.  This did not happen.