This opinion will be unpublished and

may not be cited except as provided by

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






Rosalie K. Gray,





Anoka County,



Department of Employment and Economic Development,



Filed March 28, 2006


Shumaker, Judge


Department of Employment and Economic Development

File No. 2403 05




Rosalie K. Gray, 20730 Gladiola Street Northwest, Oak Grove, MN 55011 (pro se relator)


Robert M.A. Johnson, Anoka County Attorney, Marcy S. Crain, Assistant County Attorney,

Anoka County Government Center, 2100 Third Avenue, Anoka, MN 55303 (for respondent employer)


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




            Considered and decided by Lansing, Presiding Judge; Shumaker, Judge; and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N


Relator Rosalie Gray challenges the determination of the senior unemployment review judge (SURJ) that she was discharged from respondent Anoka County for misconduct.  Because the SURJ’s determination that relator committed disqualifying misconduct is supported by the evidence and not contrary to the statutory mandate, we affirm.


Gray was a senior clerk-typist for respondent Anoka County from September 14, 1998, until she was discharged on January 4, 2005.  Her position was full time, with regular hours of 8:00 a.m. to 4:30 p.m., Monday through Friday.  Her physician stated in a letter dated after her separation from employment with Anoka County that Gray has a long history of depression, has been treated by him since April 2002, and is on two medications.

Gray had a history of tardiness with Anoka County since she received a written reprimand in December 2000.  She was warned in November 2003 that further action would be taken if she did not follow directions to arrive at work on time.  Gray’s supervisor, Susan Carolan, met with Gray monthly in early 2004.  Carolan had received complaints from Gray’s co-employees regarding her chronic tardiness.  Gray explained that it was difficult for her to wake up in the morning, but she was trying.  She understood that her employer was concerned about her tardiness and that Carolan would begin evaluating her tardiness in May.

Gray received a May 17, 2004 written reprimand.  In it, Carolan described Gray’s tardiness issues as: late arrivals at work with no notice, extra time taken at lunch, late arrival at a meeting, and consistently late arrival to cover the phones.  After the reprimand, it was determined that Gray would begin reporting her arrival at work by voicemail. 

On June 21, Gray was reprimanded orally because she had not improved her arrival time at work.  Gray and Carolan talked about Gray returning to the regular 8:00 a.m. start time.  (The employer had been accommodating her with an 8:45 a.m. start time.)  They decided that Gray’s new start time would be 8:30 a.m. “as long as [she was] on time.”  Because Gray continued to arrive late, she was suspended for one day on October 5 and then told to report at 8:00 a.m. beginning October 7.  She continued to arrive late and requested reconsideration of the 8:30 a.m. start time.  There were two more communications about tardiness in October, a five-day suspension at the end of November, and then a notice of intent to discharge on December 27, 2004.  Anoka County’s records indicated that Gray arrived at work 1-20 minutes late every day that she worked from May 27 to December 27.  The employer also testified that Gray took an additional 5-15 minutes for lunch three to four times per week.  After a hearing, Gray’s discharge became effective on January 4, 2005.


The issue raised in this petition for a writ of certiorari is whether Gray was discharged for employment misconduct.  The adjudicator, the unemployment law judge, and the SURJ concluded that Gray’s excessive tardiness constituted disqualifying misconduct under the statute.

            An employee who is discharged for employment misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4(1) (2004).  The relevant statutory definition defines employment misconduct 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.” Id., subd. 6(a) (2004). 

            Our standard of review in unemployment-insurance cases is very narrow and is limited to determining whether the evidence reasonably sustains the decision of the SURJ. Markel v. City of Circle Pines, 479 N.W.2d 382, 383-84 (Minn. 1992); Ress v. Abbott Nw. Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).  “Whether an employee engaged in conduct that disqualifies the employee from unemployment benefits is a mixed question of fact and law.”  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  Factual findings will not be reversed if there is evidence in the record reasonably supporting them.  Id.  But whether a particular act constitutes disqualifying misconduct is a question of law reviewed de novo.  Id.

Gray testified, and the SURJ found, that Gray was tardy two to three times per week during the period May 26 to December 27, 2004, despite the accommodation of later start times provided by Anoka County.  Gray testified that she had “difficulty in the morning” because she was on an antidepressant medication.  She testified that she tried to set the alarm earlier, she tried to get her son ready for school the night before she worked, and she talked with her husband and son to get their cooperation, but she conceded that her tardiness occurred because she was not getting up on time.  But Gray did not produce evidence that her medication or condition caused her tardiness.  The record showed that no matter what time Gray was expected at work, 8:00, 8:30, or 8:45 a.m., she generally arrived about ten minutes late, suggesting that Gray did have control over her arrival time and that she was not incapable of changing her arrival time due to the medication. 

Gray understood that her employer was concerned about her tardiness, and she had received multiple warnings and opportunities to correct the problem over at least a six-month period before she was discharged.  She also received accommodations with later starts of 8:45 and 8:30 a.m.  Nevertheless, Gray regularly failed to report to work at the designated time.

It is well established in the caselaw that 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).  “The critical factor is whether the employee's behavior caused [her] failure to report to work.”  Winkler v. Park Refuse Serv., Inc., 361 N.W.2d 120, 124 (Minn. App. 1985).  In general, absences resulting from "circumstances within the control of the employee" are misconduct.  Id.  The record reflects substantial evidence of Gray’s knowledge of the employer’s reasonable start time and hours of work and her regular violations thereof. 

Gray argues that she was not allowed to present relevant evidence, that the hearing was confusing, that the employer misled her into accepting a discharge, and that her performance was very good.  We see no error in the conduct of the ULJ’s hearing.  First, the ULJ properly ruled that evidence must be relevant to the discharge and generally evidence older than two years prior to the discharge was not relevant.  The ULJ properly considered the evidence offered by the parties that was relevant to the discharge.  Second, Gray failed to produce the evidence that she claimed would exonerate her.  Third, our review of the transcript also indicates that the hearing before the ULJ was orderly and not unduly confusing.  Fourth, there is no support for Gray’s allegations that she was misled by the employer about unemployment benefits, but even if her allegations were true, Gray could not reasonably rely on her employer to advise her on unemployment law.  Finally, Gray insists that she was a good employee and had very good performance reviews, but there was no allegation that she had performed badly.  Gray knew that tardiness was both the reason for her discharge and the reason that she was denied benefits.