This opinion will be unpublished and

may not be cited except as provided by

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






Debra L. Rubbelke,





JASC Software, Inc.,



Department of Employment and

Economic Development,



Filed May 23, 2006

Crippen, Judge


Department of Employment and Economic Development

File No. 17882 04



Richard A. Williams, Jr., Williams & Iversen, PA, 1611 W. County Rd. B, Suite 208
Roseville, MN 55113 (for relator)


Daniel G. Prokott, 2200 Wells Fargo Center, 90 S. Seventh Street, Minneapolis, MN 55402 (for respondent JASC Software, Inc.)


Linda A. Holmes, Department of Employment and Economic Development, E200 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101 (for respondent Department)


            Considered and decided by Hudson, Presiding Judge, Klaphake, Judge, and Crippen, Judge.

U N P U B L I S H E D   O P I N I O N


            Relator Debra Rubbelke challenges the determination that she was disqualified from receiving unemployment benefits, claiming that the senior unemployment review judge (review judge) erred in failing to determine whether or not her medical condition explained her misconduct.  Because the record does not contain evidence tying relator’s conduct to her medical condition, we affirm. 


            On September 17, 2004, relator was discharged from her five-year job with respondent JASC Software. The review judge determined that relator was disqualified for unemployment benefits due to employment misconduct, including longstanding attitude and conduct problems toward coworkers, repeated tardiness, and disregard of warnings on these topics.

            In March 2003, relator was diagnosed with Graves’ disease.  Respondent was informed of relator’s medical condition by her counselor in December 2003, and the company requested additional information in order to accommodate her.  In April 2004, based on her doctor’s recommendation, respondent gave relator a six-hour-day schedule.

            At the beginning of August 2004, when relator received a counseling statement that asked for improvement of her attendance and teamwork problems, she was told that she needed to be in the office by 9:00 a.m.  On August 27, 2004, relator received an e-mail from her supervisor reminding her to be in the office by 9:00 a.m.  Contradicting this evidence, relator testified that she understood her hours required her to be at work by “9ish” until “3ish” each day. 

            In September 2004, relator refused to alter her timesheet to show the start times her supervisor had noted, and she similarly refused to hand over time cards that she said conformed to her timesheet.  When meeting with human resources staff on September 17, to discuss her time cards, she told staff that she did not believe it was a big deal if she was at work by 9:00 a.m. so long as she worked six hours in the day.  She explained that she was late due to traffic and construction in the area; at no point during the meeting did relator claim to be late due to her medical condition.  Relator was also asked about her failure to communicate with her supervisor, and she stated that she did not respond to her supervisor’s e-mails when she did not think they were worthy of a response.  Relator was discharged later the same day.

            A misconduct-discharge decision was made by the department and, following a hearing, by the unemployment law judge.  Affirming this decision in June 2005, the review judge found that relator was diagnosed with Graves’ disease and as a result experienced anxiety, fatigue, nervousness, and difficulty concentrating but that respondent accommodated the single medical recommendation for relator, that she needed to work fewer hours per day.  The review judge concluded that the 9:00 a.m. work start time did not violate the terms of relator’s medical restrictions. 


            The standard of review in unemployment-benefit cases is narrow.  McGowan v. Executive Express Transp. Enters., 420 N.W.2d 592, 594 (Minn. 1988).  The factual findings of the review judge are “viewed in the light most favorable to the decision, and if there is evidence reasonably tending to sustain them, they will not be disturbed.”  White v. Metro. Med. Ctr., 332 N.W.2d 25, 26 (Minn. 1983).  On questions of law, we are not bound by the review judge’s conclusions.  Markel v. City of Circle Pines, 479 N.W.2d 382, 384 (Minn. 1992).  Whether an employee committed a specific act is a question of fact, but whether specific acts constitute employment misconduct is a question of law, which we review de novo.  Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997). 

            The review judge made findings on the report from relator’s doctor and her understanding that her hours were to be flexible.  But the review judge found ample basis for a misconduct-discharge disqualification, noting warnings given to relator as late as August 2, 2004; the specific message on that date that relator needed to be in the office by 9:00 a.m.; relator’s tardiness on ten occasions immediately preceding her discharge; and relator’s uncooperative responses on timesheets and e-mail messages.  Relator argues to this court that her alleged misconduct was secondary to her medical condition and the review judge erred in not addressing the medical condition. 

            Under the circumstances of this record, there was no error.  There is no showing and little asserted by relator to dispute the review judge’s findings that misconduct occurred.  Relator summarily disputes findings that she was warned about tardiness, but the review judge’s findings are fully supported by the record.  And regarding relator’s essential argument before this court, a claim of medical excuse, there is nothing in the record that ties the diagnosis of relator’s Graves’ disease to her acts of misconduct.  The letter from relator’s doctor described her condition but noted only that she would need to work fewer hours.  Moreover, relator had been counseled on her conduct prior to her diagnosis of Graves’ disease.  The review judge had no occasion to address the notion that relator’s disease prompted her misconduct or that her employer failed to properly accommodate her condition.

            Relator specifically argues that she was late to work due to her medical condition.  But the record indicates, without dispute, that relator did not inform respondent that her tardiness was attributable to her medical condition, and the letter from her doctor did not indicate that tardiness would be a symptom of the condition.  Cf. Prescott v. Moorhead State Univ., 457 N.W.2d 270, 273 (Minn. App. 1990) (noting that an employer must have prior knowledge of illness in order for the serious illness exception to apply).  And relator did not give respondent notice on the days that she was tardy.  See Minn. Stat. § 268.095, subd. 6(a) (2004) (stating that absence due to illness with proper notice to employer is not employment misconduct).


* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.