This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).







Vadia Smith-White,


Allina Health System,

Department of Employment and Economic Development,


Filed May 1, 2007


Wright, Judge


Department of Employment and Economic Development

File No. 798 06



Vadia Smith-White, 3624 Bloomington Avenue South, Minneapolis, MN  55407 (pro se relator)


Allina Health System, 800 East 28th Street, Minneapolis, MN  55407 (respondent)


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 Minge, Presiding Judge; Stoneburner, Judge; and Wright, Judge.


U N P U B L I S H E D  O P I N I O N




Relator challenges the unemployment law judge’s decision on reconsideration that relator was discharged for employment misconduct and is, therefore, disqualified from receiving unemployment benefits.  We affirm.



Relator Vadia Smith-White worked as a film librarian for respondent Abbott‑Northwestern Hospital[1] from May 2005 until December 1, 2005.  Throughout her six-month tenure, Smith-White was late or absent from work on numerous occasions.  Abbott‑Northwestern’s film-librarian supervisor, Dawn Nelson, issued Smith-White a written warning on July 29 advising Smith-White that if she failed to maintain good attendance she would be terminated.  The warning indicated that Smith-White arrived late for work on June 3, June 7, July 13, and July 22; that Smith-White failed to attend employee orientation on June 20; and that, on July 28, Smith-White was absent from work for five hours without notice. 

After receiving the written warning, Smith-White was late or absent from work on approximately five additional occasions.  On October 31, Smith-White was again counseled regarding her poor attendance.  Abbott-Northwestern discharged Smith-White on December 1 because of excessive absenteeism and tardiness. 

Smith-White applied for unemployment benefits, and a Department of Employment and Economic Development adjudicator determined that Smith-White was discharged for employment misconduct and, therefore, is disqualified from receiving unemployment benefits.  Smith-White appealed, and a telephonic hearing was held before an unemployment law judge (ULJ).  In her findings of fact and decision, the ULJ determined that Smith-White is disqualified from receiving unemployment benefits because she was discharged for employment misconduct.  After reconsideration, the ULJ affirmed her earlier decision.  This certiorari appeal followed.



We review the decision of a ULJ to determine whether 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) (Supp. 2005).

            Whether an employee committed employment misconduct is a mixed question of fact and law.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  Whether the employee committed a particular act is a question of fact.  Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  On review, we consider the ULJ’s factual findings in the light most favorable to the decision, Skarhus v. Davanni’s Inc., 721 N.W.2d 340, 344 (Minn. App. 2006), and will not disturb them when they are supported by substantial evidence, Minn. Stat. § 268.105, subd. 7(d).  Because credibility determinations are the province of the ULJ, we accord them deference on appeal.  Nichols v. Reliant Eng’g & Mfg., Inc., 720 N.W.2d 590, 594 (Minn. App. 2006).  But whether the act committed by the employee constitutes employment misconduct is a question of law, which we review de novo.  Scheunemann, 562 N.W.2d at 34. 

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).  An employee who is discharged for employment misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4(1) (Supp. 2005). 

The ULJ determined that Smith-White was discharged for employment misconduct because she was “excessively absent and tardy to 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).  A knowing violation of these rules constitutes employment misconduct because it demonstrates a substantial lack of concern for the employer’s interests.  Schmidgall, 644 N.W.2d at 804.  Excessive, unexcused tardiness and absenteeism have been recognized as employment misconduct.  See, e.g., Evenson v. Omnetic’s, 344 N.W.2d 881, 883 (Minn. App. 1984) (holding that repeated tardiness, particularly when accompanied by employer’s warnings, is employment misconduct for purposes of unemployment benefits).  But “absence because of illness or injury with proper notice to the employer” is not disqualifying employment misconduct.  Minn. Stat. § 268.095, subd. 6(a).

The record demonstrates that Smith-White was absent from or tardy to work on several occasions for reasons other than illness or injury.  For example, Smith-White was absent from orientation twice because she forgot to attend.  Smith-White was five hours late to work on July 28 without notice, and she was two hours late on October 31 because she was moving.  On November 30, Smith-White also failed to comply with her employer’s policy requiring her to page her supervisor in advance of being tardy.  In addition, Smith‑White was absent or tardy on several other occasions during her six months of employment. 

Although Smith-White contends that many of her absences and the occasions on which she was tardy were attributable to medical, emergency, or other good-cause reasons, the ULJ rejected these arguments as lacking credibility and evidentiary support.  Smith-White also maintains that she was informed that she was being discharged for incompetency, rather than for poor attendance.  But at the hearing, Smith-White admitted that the reason given at the time of discharge was poor attendance.  Because credibility determinations are the province of the ULJ, findings based on these determinations are not disturbed on appeal. Nichols, 720 N.W.2d at 594.[2] Thus, the ULJ’s determination that Smith-White committed employment misconduct by being excessively absent and tardy is supported by substantial evidence in the record and unaffected by legal error.

Smith-White also argues that the ULJ’s decision should be reversed because Smith-White was not discharged in accordance with Abbott-Northwestern’s disciplinary procedures.  Smith-White contends that, based on her tenure, she should have been suspended after receiving a written warning, rather than discharged.  On reconsideration, the ULJ determined that “[t]here is no evidence that Abbott-Northwestern Hospital was in violation of any contract, promise or agreement in discharging Smith-White for attendance” or that it “agreed to follow procedural steps before discharging Smith-White after the warning of July 29, 2005.”  Our review of the record supports this determination.  The record is devoid of any evidence of Abbott-Northwestern’s disciplinary procedure that supports Smith‑White’s argument.  Indeed, Smith-White’s supervisor testified that suspension was not required under the disciplinary procedures, particularly in light of the numerous warnings Smith‑White received, including written notification on July 29 that failure to improve her attendance could result in termination.  Accordingly, Smith-White is not entitled to relief on this ground.

In sum, substantial evidence exists in the record to sustain the ULJ’s factual findings, and the ULJ correctly applied the law.  Because Smith-White engaged in employment misconduct under Minn. Stat. § 268.095, subd. 6(a), she is disqualified from receiving unemployment benefits.


[1] Respondent Allina Health System doing business as Abbott-Northwestern Hospital will be referred to as Abbott-Northwestern. 

[2] Smith-White also claims for the first time on appeal that she was discharged in retaliation for applying “for a transport.”  This argument is not properly before us.  See Thiele v. Stich, 425 N.W.2d 580, 583 (Minn. 1988) (holding that appellate courts “may not consider matters not produced and received in evidence below”).  And the record contains no evidentiary support for Smith-White’s assertions that Abbott-Northwestern retaliated against her for requesting a transport.  See Powers v. State, 695 N.W.2d 371, 374 (Minn. 2005) (requiring allegations be supported with more than mere argumentative assertions that lack factual support).