This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Department of Employment and Economic Development,
Filed March 28, 2006
Rosalie K. Gray,
Robert M.A. Johnson,
Linda A. Holmes, Department
of Employment and Economic Development, 332 Minnesota Street, Suite E200, St.
U N P U B L I S H E D O P I N I O N
Gray challenges the determination of the senior unemployment review judge
(SURJ) that she was discharged from respondent
Gray was a senior
clerk-typist for respondent
Gray had a history
of tardiness with
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.
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.
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.”
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 (
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
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 (
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.