This opinion will be unpublished and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
Stephanie T. Eaton,
Park and Recreation Board of
Department of Employment and Economic Development,
Filed March 27, 2007
Department of Employment and Economic Development
File No. 345 06
Stephanie T. Eaton,
Ann E. Walther, Karin E. Peterson, Rice, Michels & Walther, LLP, 10 Second Street N.E., Suite 206, Minneapolis, MN 55413 (for respondent Park and Recreation Board of Minneapolis)
Lee B. Nelson, Linda A. Holmes, Department of Employment and Economic Development, First National Bank Building, Suite E200, 332 Minnesota Street, St. Paul, MN 55101 (for respondent Department of Employment and Economic Development)
Considered and decided by Lansing, Presiding Judge; Peterson, Judge; and Worke, Judge.
U N P U B L I S H E D O P I N I O N
On certiorari appeal from the unemployment-law judge’s decision that relator was discharged for misconduct and, therefore, disqualified from receiving unemployment benefits, relator argues that the employer’s witnesses were not truthful and their testimony was contradictory, and that she had reasonable explanations for various incidents. We affirm.
D E C I S I O N
When reviewing the decision of an unemployment-law judge (ULJ), this court may affirm the decision, remand the case for further proceedings, or reverse or modify the decision if the substantial rights of the relator have been prejudiced because the findings, inferences, conclusion, or decision are “(1) in violation of constitutional provisions; (2) in excess of the statutory authority or jurisdiction of the department; (3) made upon unlawful procedure; (4) affected by other error of law; (5) unsupported by substantial evidence in view of the entire record as submitted; or (6) arbitrary or capricious.” Minn. Stat. § 268.105, subd. 7(d) (2006).
The ULJ determined that relator Stephanie
T. Eaton was discharged for employment misconduct. Whether an employee committed employment
misconduct is a mixed question of fact and law.
Schmidgall v. FilmTec Corp.,
644 N.W.2d 801, 804 (
Employment misconduct is “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).
Relator first argues that the witnesses who
testified on behalf of respondent Park and Recreation Board of Minneapolis (PRBM)
were not truthful and provided contradictory testimony. “When witness credibility and
conflicting evidence are at issue, we defer to the decision-maker’s ability to
weigh the evidence and make those determinations.” Nichols
v. Reliant Eng’g & Mfg., Inc., 720 N.W.2d 590, 594 (
Relator next argues that she did not engage in misconduct because she had reasonable explanations for the behavior that PRBM used to terminate her employment. The ULJ found that relator was terminated because of continued issues with her tardiness and absences, the accuracy of her timesheets, and her decision-making. The decision is supported by substantial evidence.
Relator argues that she was not absent or tardy and that her supervisor, Al Bangoura, did not testify truthfully because she knew that he “misdirected funding,” and he terminated her to keep her quiet. But relator never raised this issue before the ULJ, and the ULJ found that Bangoura was credible and that relator was often late for work.
An employer has a “right to establish and
enforce reasonable work rules relating to absenteeism.” Jones
v. Rosemount, Inc., 361 N.W.2d 118, 120 (Minn. App. 1985); see also McLean v. Plastics, Inc., 378
N.W.2d 104, 107 (Minn. App. 1985) (holding that excessive tardiness or
absenteeism that is unrelated to illness or injury demonstrates an employee’s
disregard of an employer’s interests and constitutes misconduct); Evenson v. Omnetic’s, 344 N.W.2d 881,
883 (Minn. App. 1984) (holding that repeated tardiness, particularly when
combined with an employer’s warnings, is misconduct for the purposes of
unemployment compensation). Similarly,
an employee’s failure to give proper notice of an absence may demonstrate a
lack of concern for employment that constitutes disqualifying misconduct. Edwards
v. Yellow Freight Sys., 342 N.W.2d 357, 359 (
Here, relator’s scheduled hours were 4:00 p.m. to 9:00/9:30 p.m. Bangoura testified that he explained to relator that because she worked at the front desk, her attendance and punctuality were critical. Bangoura told relator that if she could not make it to work to call and someone could fill in for her. On August 15, relator was 30 minutes late for work and failed to call. On September 28, relator was 30 minutes late for work, but she did call. On September 30, relator was 15 minutes late for work and failed to call. On October 12 and 13, relator was 30 minutes late and failed to call. Relator explained to Bangoura that she was late because she was picking up her child from school. On October 17, Bangoura adjusted relator’s start time to 4:30 p.m. But relator was still late for work without calling three times between October 20 and 28. Although relator denied ever being late, she agreed that Bangoura adjusted her start time, but offers no explanation for this change in her schedule. Thus, it was reasonable for the ULJ to find that relator was late for work. Bangoura’s request for punctuality and consistent attendance was reasonable, especially when he attempted to accommodate relator’s schedule, and relator’s failure to follow this request displayed a violation of her employer’s standards of behavior and constituted misconduct.
Relator also argues that she simply made
mistakes with her timesheet. Relator
claims that no PRBM employee completed his or her timesheet as instructed. But a violation of an employer’s policies by
others, or an employer’s selective enforcement of its rules, is not a defense
to a charge of employment misconduct. Dean v. Allied Aviation Fueling Co., 381
N.W.2d 80, 83 (Minn. App. 1986); see also
Sivertson v. Sims Sec., Inc., 390 N.W.2d 868, 871 (Minn. App. 1986)
(holding that employer’s alleged selective enforcement of rules was not a
defense to a finding of employee misconduct), review denied (
Here, on two days that relator indicated on her timesheet that she worked, she should not have recorded working any hours because she had volunteered her time. Relator testified that she should not have recorded the hours on her timesheet, but explained that she forgot that she volunteered when she completed her timesheet. On two other days, relator did not work at all, but recorded working seven hours each day. Relator testified that she completed her timesheets in advance. But Bangoura testified that he repeatedly told employees to complete their timesheets daily and that he told relator that falsifying hours or not correcting timesheets was grounds for termination. Thus, even if relator is correct in stating that nobody followed the instructions to complete timesheets daily, that does not justify her actions. And the failure to correctly record her actual hours worked displays conduct that violates her employer’s standards of reasonable behavior and constitutes misconduct.
Finally, relator argues that although she made a mistake by leaving children at a water park, she has already been suspended for that incident. Bangoura testified that he considered the water-park incident when he decided to terminate relator’s employment. But Bangoura testified that in addition to the water-park incident, relator made other critical decisions that factored into his decision, such as relator leaving her desk and “just being gone” for 40 minutes to an hour.
A “single incident that does not have a
significant adverse impact on the employer” is not employment misconduct. Minn. Stat. § 268.095, subd. 6(a); see, e.g., Pierce v. DiMa Corp., 721
N.W.2d 627, 630 (Minn. App. 2006) (holding that a single violation of
employer’s cash-register policy that does not involve theft or mishandling
money and has no adverse impact on employer is not employment misconduct); but cf. Skarhus v. Davanni’s Inc., 721
N.W.2d 340, 344 (Minn. App. 2006) (holding that a cashier’s single incident of
theft from employer of items of minimal value has significant adverse impact on
employer and constitutes employment misconduct because it undermines employer’s
ability to assign essential job functions to employee). A single incident when an employee
deliberately chooses a course of action adverse to the employer can constitute
misconduct. Colburn v. Pine Portage Madden Bros., Inc., 346 N.W.2d 159, 161 (Minn. 1984). In determining whether an employee’s actions
rise to the level of misconduct, this court considers whether the conduct adversely
affected the business. See Auger, 303 N.W.2d at 257.
If the employee’s conduct shows disregard for the interests
of the employer, the employee may be disqualified from unemployment
Additionally, Bangoura testified that even after he discussed with relator the importance of her being at her desk doing her job, relator would leave without permission for extended periods of time. For example, relator was permitted to go walking with the walking club, but she did not return with the club. A PRBM employee testified that relator was gone an additional 15-20 minutes after the walking club returned. Relator testified that she only left between 5:00 p.m. and 6:00 p.m. because the park closed during that hour and that she always returned with the walking club. But the ULJ did not find relator credible.
Relator was terminated after her employer had problems with her tardiness and absences, timesheet entries, and her failure to follow instructions. The ULJ did not err in determining that relator was terminated for misconduct and, therefore, disqualified from receiving unemployment benefits.