This opinion will be unpublished and

may not be cited except as provided by

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






Robyn M. Foster,





Blue Cross Blue Shield of Minnesota,



Department of Employment and Economic Development,



Filed May 2, 2006


Shumaker, Judge


Department of Employment and Economic Development

File No. 12835 04



Sonja Dunnwald Peterson, Dunnwald & Peterson, P.A., Suite 1150E Grain Exchange Building, 412 South Fourth Street, Minneapolis, MN 55415 (for relator)


Tina Syring-Petrocchi, Amy C. Taber, Rider Bennett, LLP, 33 South Sixth Street, Suite 4900, Minneapolis, MN 55402 (for respondent employer)


Linda A. Holmes, First National Bank Building, 332 Minnesota Street, Suite E200, St. Paul, MN 55101-1351 (for respondent department)



            Considered and decided by Willis, Presiding Judge; Shumaker, Judge; and Stoneburner, Judge.


U N P U B L I S H E D   O P I N I O N


            Relator challenges the senior unemployment review judge’s determination that she is disqualified from receiving unemployment benefits because she was discharged for misconduct, claiming that the determination is not reasonably supported by the record and that her conduct did not clearly display a serious violation of standards for her employment.  Because the record reasonably supports the determination, we affirm.


Relator Robyn M. Foster was employed by respondent Blue Cross Blue Shield Minnesota (BCBSM) as a network management consultant from November 4, 1996, through June 24, 2004.  In May 2003, Foster was diagnosed with Postural Orthostatic Tachycardia Syndrome (POTS), a medical condition that includes symptoms of dizziness, nausea, and irregular blood pressure.  Symptoms of POTS are more likely to occur in the mornings, and, therefore, BCBSM agreed to adjust Foster’s work hours to accommodate her illness.  On December 15, 2003, Foster and her manager, Katherine Manar, discussed BCBSM’s attendance guidelines and agreed that Foster would need to work an eight-hour shift from 10:00 a.m. until 6:30 p.m.

Under BCBSM’s attendance guidelines, network-management consultants were allowed to take up to four hours off without prior approval as long as the hours were either reported as paid time off (PTO) or made up during the week.  BCBSM also expected employees to notify management of any changes to their work schedule. 

On March 9, 2004, Manar sent an e-mail to Foster summarizing the details of a discussion they had on February 24, 2004.  The e-mail stated that “[y]our standard work hours are 10-6:30—not skipping lunches on a regular basis.  If work hours are different, I need to know in advance and why.”  BCBSM’s Director of Provider Relations and Operations Improvement, Annette Fowler, testified that Foster failed to follow Manar’s directives and thereby violated BCBSM’s policy on six specific instances during May and June 2004. 

On May 20, 2004, Foster reported that she had worked five-and-one-half hours and had taken two-and-one-half hours of PTO.  But Foster failed to give Manar notice that she would be working outside of her regularly scheduled hours, and BCBSM could verify from time records that Foster worked only two hours. 

Foster also left early without prior notice on May 21, June 1, and June 4, 2004.  Foster testified that she worked through lunch on those days because of business needs.  She maintained that prior to June 7, 2004, she did not have to inform BCBSM in advance if she was going to adjust her end time or start time due to business reasons.

On June 2, 2004, Foster reported six-and-one-half hours of work and claimed one and one-half hours of PTO, when in fact it was vice versa.  She testified that she accidentally transposed the numbers on BCBSM’s time-record system.  She meant to claim only one-and one-half hours of work, but again no notice was given to BCBSM.  On June 3, 2004, Foster misreported her hours again.  She was at work for 33 minutes before going home sick, but she reported one hour of work.

On June 7, 2004, Foster met with Manar to discuss her attendance issues.  The record shows that Foster understood that if she left early she would have to let Manar know.  Foster testified that she had originally thought notice was needed only when her work hours changed because of her illness.  On June 17, 2004, Manar sent Foster another e-mail regarding BCBSM’s expectations of her attendance and work hours.  Foster contended that the e-mail from June 17, 2004, was a new time-keeping requirement.  On June 24, 2004, BCBSM terminated Foster for falsification of time records.

Foster applied to the Minnesota Department of Employment and Economic Development (MNDEED) for unemployment benefits.  After a telephone hearing with an unemployment law judge (ULJ), the ULJ found that Foster was discharged for reasons other than employment misconduct and that she was not disqualified from unemployment benefits.  BCBSM appealed the decision to the senior unemployment review judge (SURJ).  The SURJ found that Foster was discharged for employment misconduct because she misreported her work hours and falsified her time records on at least one occasion.  Based upon those findings, Foster was disqualified by MNDEED from eligibility for unemployment benefits.  This certiorari appeal followed.


On certiorari appeal, the question of whether a discharged employee has engaged in employment misconduct is a mixed question of fact and law.  Schmidgall v. FilmTec
644 N.W.2d 801, 804 (Minn. 2002).  The SURJ[1] determines the fact question of whether an employee committed the alleged acts of misconduct.  Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  This court reviews de novo, as a question of law, whether those particular acts constitute employment misconduct and disqualify the employee from receiving unemployment benefits.  Schmidgall, 644 N.W.2d at 804.

Foster contends that she was not given instructions by Manar that she had to give advance notice of any change in start and end times prior to June 7, 2004.  She claims that the March 9 e-mail that directed her to give BCBSM advance notice of any changes to her schedule only pertained to changes due to her illness.

On appeal, this court reviews and gives “particular deference” to the decision of the SURJ.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  We will not disturb the SURJ’s findings if there is evidence that reasonably tends to sustain them, and we must view the SURJ’s findings in the light most favorable to the decision.  Schmidgall, 644 N.W.2d at 804.  This court defers to the SURJ’s ability to weigh the evidence and make credibility assessments and will not consider the weight of conflicting evidence on review.  Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995).

Here, the SURJ determined that, despite Foster’s illness, her employer had the right to expect that she would work her scheduled hours.  The SURJ emphasized that Foster was told repeatedly what BCBSM’s expectations were regarding her attendance.  

There is substantial evidence that Foster was told at least as of March 9, 2004, by e-mail that she had to report any changes in her work hours.  The e-mail put into writing BCBSM directives given to Foster in a February 24 meeting.  The SURJ determined that Foster was told at that meeting that she had to report changes in her work hours “whenever” they occurred, regardless of her illness.  The e-mail made clear that Foster was to work from 10:00 a.m. to 6:30 p.m., and if these work hours changed, she had to notify BCBSM.  Nothing in that e-mail referred to any particular reason for Foster to think otherwise.

The evidence clearly shows that BCBSM wanted Foster to report any difference in her work hours, regardless of the reason.  Because we defer to the SURJ’s ability to weigh the evidence and make credibility assessments, we conclude that the record adequately supports the SURJ’s findings of employment misconduct.

Foster also contends that the SURJ erred in determining that her behavior constituted employee misconduct.  Whether or not an employee committed an act alleged to be misconduct is a fact question, but whether that act is employment misconduct is a question of law.  Scheunemann, 562 N.W.2d at 34.  An applicant who is discharged from employment is disqualified from benefits only if the conduct for which the applicant was discharged amounts to employment misconduct.  Minn. Stat. § 268.095, subd. 4(1) (2004).

            Minnesota defines employment misconduct as “any intentional, negligent, or indifferent conduct, on the job or off the job (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).

The evidence clearly shows that Foster left before 6:30 p.m. on May 21, June 1, and June 4, 2004, without giving notice to BCBSM.  She either intentionally or negligently disregarded her manager’s directions that she stay until 6:30 p.m. or provide notice if she was leaving early.

The evidence also shows that on May 20, June 2, and June 3, 2004, Foster misrepresented her work hours on BCBSM’s time records.  The court has held that falsifying timecards is employment misconduct.  See Ruzynski v. Cub Foods, Inc., 378 N.W.2d 660 (Minn. App. 1985).  The record supports the SURJ’s determination that Foster’s misrepresentation of work hours displayed a serious violation of BCBSM’s expectations.

We will affirm the SURJ’s determination if the findings are supported by the evidence and the conclusion based on those facts is consistent with the statutory mandate.  See Colburn v. Pine Portage Madden Bros. Inc., 346 N.W.2d 159, 161 (Minn. 1984).  Here, the SURJ’s findings with respect to Foster’s violations of the BCBSM’s attendance policy are reasonably supported by the evidence.  Furthermore, Foster’s repeated misrepresentation of work hours and failure to provide notice of any schedule changes meet the standards of employment misconduct.  The SURJ properly determined that the relator was disqualified from obtaining unemployment benefits.


[1] Under a recent change by the legislature, an evidentiary hearing is held by an unemployment law judge and an appeal of that decision is reviewed de novo by a senior unemployment review judge. Minn. Stat. § 268.105 subds. 1, 2 (2004).  The SURJ replaces the prior “commissioner’s representative” terminology.  2004 Minn. Laws ch. 183, § 71.  There is no indication that our standard of review has changed.