This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




Shannon R. Plaster,



Filmtec Corporation,


Commissioner of Economic Security,


Filed May 11, 1999


Foley, Judge[*]

Department of Economic Security

File No. 5379 UC 98

Peter B. Knapp, Anne C. Huntley, Certified Student Attorney, William Mitchell Law Clinic, 875 Summit Ave., St. Paul, MN 55105 (for relator)

Kent E. Todd, 390 North Robert Street, St. Paul, MN 55101 (for respondent commissioner)

Considered and decided by Halbrooks, Presiding Judge, Peterson, Judge, and Foley, Judge.

U N P U B L I S H E D   O P I N I O N

FOLEY, Judge

Relator challenges the denial of her application for reemployment insurance benefits. She argues that the final instance in a series of tardy arrivals at work did not constitute "misconduct" as defined by Minn. Stat. § 268.095, subd. 6 (1998),[1] because it was due to circumstances beyond her control. We affirm.


Relator Shannon R. Plaster worked full time for respondent Filmtec Corporation from May 19, 1997, until she was terminated on June 16, 1998. During the course of her employment, relator was late to work about seven times. Filmtec supervisors repeatedly told relator that she needed to correct her tardiness problem.

After relator arrived to work late on May 3, 1998, respondent warned her that any further incidents of unexcused tardiness would result in termination of her employment. On June 16, relator arrived at work late because she was caught in a traffic jam. She was discharged the same day for her tardiness.

Relator's application for reemployment insurance benefits was denied. A reemployment insurance judge reversed the denial of benefits, but the commissioner's representative reversed the decision of the reemployment insurance judge. This appeal followed.


This court reviews the decision of the commissioner's representative rather than that of the reemployment insurance judge. Weaver v. Minnesota Valley Lab., Inc., 470 N.W.2d 131, 133 (Minn. App. 1991). The findings of the commissioner's representative will not be disturbed if the evidence reasonably tends to support them. White v. Metropolitan Med. Ctr., 332 N.W.2d 25, 26 (Minn. 1983). But determination of whether the established facts constitute misconduct is a question of law subject to independent review on appeal. Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).

Relator argues that because her tardiness on May 3 was due to circumstances beyond her control, her termination was not for misconduct. But the commissioner's representative found that she was discharged for her continuing tardiness.

Minn. Stat. § 268.095, subd. 6 (1998), defines misconduct as intentional conduct showing a disregard of:

(1) the employer's interest;

(2) the standards of behavior that an employer has the right to expect of the employee; or

(3) the employee's duties and obligations to the employer. Misconduct also includes negligent conduct by an employee demonstrating a substantial lack of concern for the employment. Inefficiency, inadvertence, simple unsatisfactory conduct, or poor performance as a result of inability or incapacity are not misconduct.

Excessive tardiness after repeated warnings may evidence a disregard of an employer's interests and constitute misconduct. Evenson v. Omnetic's, 344 N.W.2d 881, 883 (Minn. App. 1984). Relator does not argue that her previous instances of tardiness were not misconduct. Rather, she argues that, because she was fired after a tardy arrival that was caused by circumstances beyond her control, she was not fired for misconduct.

But, in Jones v. Rosemount, Inc., 361 N.W.2d 118 (Minn. App. 1985), this court held that "[r]egardless of the reason for her absence on her last day," Jones was fired for misconduct because she had already demonstrated a pattern of persistent absence that constituted "negligent behavior toward her employer, justifying termination and justifying withholding unemployment compensation benefits." Id. at 120. Similarly, although relator's final tardiness was not negligent or intentional, she had already demonstrated a persisting pattern of tardiness that could be termed misconduct. Applying Jones to this case, we hold that relator was terminated for misconduct because her prior pattern of tardiness showed negligent disregard for her employer's interests regardless of the reason for her final tardiness.


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

[1] Minn. Stat. § 268.09, subd. 12 (Supp. 1997), was renumbered to Minn. Stat. § 268.095, subd. 6 (1998), but there was no change to the substance of the section. 1998 Minn. Laws ch. 265, § 45.