This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







Arthur B. Lewis, Jr.,





Novartis Nutrition Corp.,



Commissioner of Economic Security,



Filed March 25, 2003


Hudson, Judge


Department of Economic Security

File No. 6443 02


Arthur B. Lewis, Jr., 1201 – 12th Avenue North, #311, Minneapolis, Minnesota 55411 (pro se relator)


Novartis Nutrition Corp., 5100 Gamble Drive, Minneapolis, Minnesota 55416 (respondent)


Linda A. Holmes, Department of Economic Security, 390 North Robert Street, St. Paul, Minnesota 55101 (for respondent Commissioner)


            Considered and decided by Kalitowski, Presiding Judge, Minge, Judge, and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N


Relator Arthur B. Lewis, Jr., challenges the decision by the commissioner’s representative that he was discharged from employment for repeated absenteeism and was disqualified from receiving unemployment benefits.  He contends that he did not commit misconduct.  He argues primarily that (a) he did not receive a fair hearing or appeal pursuant to the “hearing guide” published by the Minnesota Department of Economic Security because the unemployment law judge failed to assist him and to control the hearing, and (b) the employer’s witness was newly hired and knew nothing about the case, so that the judge had no evidence to assess. He contends that the commissioner’s representative therefore could not issue a fair decision.  Because the record reasonably supports the decision of the commissioner’s representative, we affirm.


            On October 10, 2001, Novartis Nutrition Corp., a medical-nutrition company, hired Arthur B. Lewis, Jr. (Lewis), as an order-filler in its warehouse.  The company attendance policy, which was communicated to Lewis, provides that an employee receives two points for every absence and 6 points for a “no-call, no-show.”  A total of 16 accumulated points constitutes grounds for termination.  Lewis was absent from work on October 20, October 27, November 1, November 10, and December 5, 2001.  He was given a written warning about his attendance on November 9, 2001.  On December 6, 2001, he had a “no-call, no-show.”  He was in jail that day because of an altercation with his wife and an ensuing argument with police.  Because Lewis had accumulated 16 points after the December 6 absence, the company discharged him. 

Lewis established a benefits account with the Minnesota Department of Economic Security, which denied his request for unemployment benefits.  At a hearing before an unemployment law judge, Lewis admitted that he had missed work on the days of his recorded absences, but stated that he was angry with his wife because she failed to let him know that his daughter had died in Chicago.  Lewis inquired whether the record reflected several days he had missed because of his daughter’s death.  The employer’s representative, who was not working for the employer at the time of the discharge, testified that the points for those absences had been removed from Lewis’s record and thus did not count toward the points accumulated for his discharge.

The unemployment law judge affirmed the department’s determination, finding that Lewis, by his repeated absenteeism, had violated the standard of behavior that the employer had a right to expect of him and concluding that Lewis had been discharged for employment misconduct.  The commissioner’s representative affirmed the decision, and this appeal followed.


This court’s review of unemployment-insurance cases is narrow and limited to determining whether the record reasonably supports the decision of the commissioner’s representative.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995); Cent. Specialties, Inc. v. Comm’r of Econ. Sec., 622 N.W.2d 833, 835 (Minn. App. 2001), review denied (Minn. May 15, 2001).  We review the commissioner’s representative’s factual findings in the light most favorable to the decision.  Ress v. Abbott N.W. Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).  Whether an employee has committed disqualifying misconduct is a mixed question of fact and law.  Colburn v. Pine Portage Madden Bros., Inc., 346 N.W.2d 159, 161 (Minn. 1984).  Whether the employee committed a particular act is a factual question, but the interpretation of that act as misconduct is a question of law.  Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  This court may exercise its independent judgment on legal issues.  Ress, 448 N.W.2d at 523.

An employee discharged for misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4 (2002).  According to the relevant statute, disqualifying misconduct means:

(1)       any intentional conduct, on the job or off the job, that disregards the standards of behavior that an employer has the right to expect of the employee or disregards the employee’s duties and obligations to the employer; or


(2)       negligent or indifferent conduct, on the job or off the job, that demonstrates a substantial lack of concern for the employment. 


Minn. Stat. § 268.095, subd. 6(a)(1), (2) (2002). 

In this case, the commissioner’s representative concluded that the evidence demonstrated that Lewis was discharged because his absenteeism disregarded the standards of behavior the employer had the right to expect and because his actions constituted indifferent conduct demonstrating a substantial lack of concern for his employment.  We have recognized an employer’s right to establish and enforce reasonable work rules relating to absenteeism.  Jones v. Rosemount, Inc., 361 N.W.2d 118, 120 (Minn. App. 1985).  The violation of such rules can constitute misconduct.  Duc Van Luu v. Carley Foundry Co., 374 N.W.2d 582, 584 (Minn. App. 1985).  Even without a showing that an employee’s absenteeism was willful or deliberate, it may be sufficiently chronic and excessive to demonstrate a lack of concern for the job.  See McLean v. Plastics, Inc., 378 N.W.2d 104 (Minn. App. 1985); Duc Van Luu, 374 N.W.2d at 584. 

Lewis acknowledges his accumulated absences and that he knew about the attendance policy.  He argues, however, that he did not receive a fair hearing because (1) the employer’s representative who testified at the hearing was not working for the employer at the time Lewis was discharged and so did not know the relevant facts, and (2) the unemployment law judge did not follow the guidelines listed in the hearing brochure because he did not give Lewis a fair chance to answer questions before asking “[I]s there anything else?” 

At the hearing, the parties may examine and cross-examine witnesses and present and object to exhibits.  Minn. R. 3310.2921 (2001).  The unemployment law judge should assist unrepresented parties in the presentation of evidence, control the hearing so as to protect the party’s rights to a fair hearing, and ensure that the relevant facts are clearly and fully developed.  Id.  We have further noted that the unemployment law judge has an obligation to help a pro se party “to recognize and interpret the party’s claims.”  Miller v. Int’l Express Corp., 495 N.W.2d 616, 618 (Minn. App. 1993); see, e.g., Scheunemann, 562 N.W.2d at 34 (remanding where unemployment law judge refused to allow relator to testify as to sexual harassment, where she asserted her discharge was based on sexual harassment rather than absenteeism). 

Here, the unemployment law judge did assist Lewis by asking him several times whether he had further information to present.  Lewis called no witnesses on his own behalf and did not challenge the record establishing the factual basis for his disqualification.  He appeared confused about whether the absences surrounding his daughter’s death counted towards the absence points accumulated for his discharge.  But the company representative told him at the hearing that those absences did not count towards the limit.  Further, although the company representative was not employed at Novartis when Lewis was discharged, she had full access to his personnel file, which documented the uncontroverted absences.  We conclude that Lewis received a fair hearing and that the record reasonably supports the conclusion of the commissioner’s representative that Lewis’s pattern of absenteeism constituted employment misconduct so as to disqualify him from receiving unemployment benefits.