This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
STATE OF MINNESOTA
IN COURT OF APPEALS
Edgewood Management Inc.,
Department of Employment and Economic Development,
Filed January 30, 2007
Department of Employment and Economic Development
File No. 13221 05
Effie L. Patterson,
Edgewood Management Inc., Attn: Katy Langevin,
Lee B. Nelson, 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 Halbrooks, Presiding Judge; Randall, Judge; and Stoneburner, Judge.
Relator challenges the unemployment-law judge’s (ULJ) determination that she is disqualified from receiving unemployment benefits due to employee misconduct. Because we conclude that the ULJ properly applied the law and that the ULJ’s determination is supported by substantial evidence in the record, we affirm.
From October 2003 through June 2005, relator Effie L. Patterson worked part-time as a nursing assistant for respondent Edgewood Management, a long-term health-care facility and nursing home. Relator frequently worked double or overnight shifts; her total hours varied.
Management tracked each employee’s point total each pay period and had discretion to waive point deductions. An employee received an oral warning when her point balance reached four points or less and a written warning if the point balance reached two points or less. Employees were involuntarily terminated when their point balance reached zero.
Employees could also be terminated for failing to report an absence. In general, all absences had to be reported at least two hours prior to a shift. If an employee was absent and did not report the absence, the employee was deemed a “No Call/No Show” and was considered to have voluntarily resigned, regardless of her point total. While an employee could submit a written request to management for a “variance” excusing a “No Call/No Show,” the request had to be submitted within 24 hours and was granted at management’s discretion.
Relator had over 30 attendance
occurrences during her 1 1/2 years of employment with
Relator was discharged
because her attendance point total had reached zero. Following her discharge, relator applied for
and was denied unemployment benefits on the ground that she was discharged for misconduct.
She appealed to the ULJ, who held a de
novo review. The ULJ heard testimony
from relator and from Katy Langevin, the human-resources director at
Langevin testified that relator called in to report her absences for personal reasons on June 21 and 22 and that relator called again on June 22 to confirm that she was scheduled for a double shift on June 23, 2005. But Langevin testified that relator was a No Call/No Show on June 23. Langevin stated that on June 23, management left a voice-mail message at relator’s residence more than one hour after her shift began, and a male later returned the call to say that relator would be absent.
In contrast, relator
testified that she did call in on June 23.
Relator also testified that her absences on June 21 through June 23 were
caused by her recent discovery of disturbing information regarding a family
member. She acknowledged that she did
not disclose this information to
Following the hearing, the
ULJ determined that relator was “discharged from her employment due to
tardiness and absenteeism pursuant to
The evidence shows that some of [relator’s] absences were due to personal and family illness. However, some of them were due to other reasons. In addition, she was also tardy on a number of occasions. She received warnings and notices concerning her tardiness and absenteeism and the loss of attendance points. At the end of her employment, she was absent from work for three days for reasons other than illness.
We further conclude that on June 23, 2005 she did not call in that day. We find persuasive the testimony and evidence submitted by Edgewood showing that a representative of Edgewood called [relator’s] home on June 23, 2005 and left a message after [relator] had not reported for work as scheduled and later a man called Edgewood to report that [relator] would not be at work.
As a result, the ULJ concluded that relator “engaged in intentional, negligent, or indifferent conduct that displays clearly a serious violation of the standards of behavior the employer had the right to reasonably expect of the employee or that display clearly a substantial lack of concern for the employment” and that relator was discharged due to tardiness and absenteeism pursuant to Edgewood’s attendance policy. When relator sought reconsideration, the ULJ affirmed.
This certiorari appeal follows.
Relator brings this certiorari appeal to challenge the ULJ’s decision that she is disqualified from receiving unemployment benefits because of employee misconduct. On review of the ULJ’s decision, this court may affirm, remand for further proceedings, reverse, or modify the decision. Minn. Stat. § 268.105, subd. 7(d) (2006) (setting out standard of review for ULJ decisions issued on or after June 25, 2005). Reversal or modification is appropriate
if the substantial rights of the petitioner may have been prejudiced because the findings, inferences, conclusion, or decision are:
(6) arbitrary or capricious.
Determining whether an
employee actually committed specific acts alleged to be misconduct is a
question of fact. Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (
The determination of whether
employee conduct constitutes employee misconduct is a question of law that this
court reviews de novo. Schmidgall, 644 N.W.2d at 804; Ress v. Abbott Nw. Hosp., Inc., 448
N.W.2d 519, 523 (
Here, the ULJ determined
that relator was discharged for employee misconduct “due to tardiness and
absenteeism” that violated
But relator argues that her behavior did not rise to the level of employee misconduct for the following reasons: (1) her attendance points were incorrectly calculated; (2) management should have waived some absence points due to illness and extenuating circumstances; (3) contrary to policy, management did not inform her that she was getting close to termination based on her low point total; and (4) the evidence shows that she did call in to report her absence on June 23, 2005.
The record ultimately showed that relator had more than 30 attendance occurrences. Furthermore, an examination of the balance sheet shows that any errors appear to be in relator’s favor. For example, during the period between January 26, 2004, and February 8, 2004, relator should have had six points subtracted but only three were actually subtracted. During the period between February 9, 2004, and February 22, 2004, relator left early once, came in late once, and failed to punch out twice. Therefore, as many as three points could have been deducted during that period. Instead, one point was added. Relator conceded that if her points had been subtracted in full, she would have been terminated in May 2005.
Relator contends that, contrary to policy, management did not inform her that she was getting close to termination due to poor attendance. But the ULJ found that relator received warnings and notices when her points were low. Langevin testified that employees were responsible for the day-to-day management of their own points. And relator conceded that, as of May 24, she knew she had one point and was in danger of being terminated.
Relator argues that the evidence presented establishes that she called in to report her absence on June 23. But Langevin testified that the supervisor that was on call that morning never received such a call. Langevin also stated that “the staffing coordinator has this in writing, it says, [relator] wasn’t here at 6 a.m., I called her phone at 7 a.m., left a message, [and I received] a return call from a man stating she wouldn’t be in today, [at] 7:30 a.m.”
When parties present
conflicting evidence, we defer to the ULJ’s ability to weigh the evidence. Whitehead
v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (
 Two points are subtracted for an unplanned absence, even if the employee calls in. But only two points are subtracted for consecutive absences that are part of the same incident.
employee discharged for employee misconduct is disqualified from receiving
unemployment benefits under Minn. Stat. § 268.095, subds. 4, 6 (2004). Portions of the unemployment statute were
amended in 2005. But those changes did
not take effect until July 1, 2005. 2005
 As indicated on page 5, supra, the 2004 definition of misconduct applies here.