This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






John M. Huston,





Mystic Lake Casino,



Commissioner of Employment and Economic Department,



Filed April 5, 2005


Randall, Judge


Department of Employment and Economic Development

File No. 4804 04


James L. Berg, 1059 Stoughton Avenue, P.O. Box 85, Chaska, MN  55318 (for relator)


Mystic Lake Casino, Little Six Inc., ATTN:  Divisional HR, 2400 Mystic Lake Boulevard NW, Prior Lake, MN  55372-9004 (for respondent employer)


Lee B. Nelson, Linda A. Holmes, Minnesota Department of Employment and Economic Development, E200 First National Bank Building, 332 Minnesota Street, St. Paul, MN  55101 (for respondent commissioner)

            Considered and decided by Minge, Presiding Judge, Randall, Judge, and Wright, Judge.


U N P U B L I S H E D   O P I N I O N


            On appeal from the decision by the commissioner’s representative that he was discharged for misconduct after reporting late for work and was disqualified from receiving unemployment benefits, relator argues that the discharge was wrongful because it was not in compliance with the employer’s written policy.  We affirm.


            Relator John Huston was employed by Mystic Lake Casino as a slot technician and shift manager from January 19, 1999, until February 19, 2004.  During his tenure at Mystic Lake, relator was subject to the casino’s attendance policy, which states that employees are required to contact a supervisor if they are not going to be at work as scheduled.  The policy also sets forth a five-step disciplinary process that is generally conducted before an employee is terminated.  These steps include:  (1) a verbal warning, (2) a documented verbal warning, (3) a written warning, (4) a one-day suspension, and (5) a three-day suspension.  According to the policy, certain steps are allotted point values, and when an employee reaches ten points, the employee is terminated.  The policy further provides that the first time an employee reaches termination during his or her employment, the employee is offered a condition of employment that states “[y]ou must not acquire one additional point for the next 90 days.  If you acquire one point, you will be subject to termination.” 

            On March 12, 2002, relator was verbally warned for failing to provide proper notice of an absence.  A few months later, relator was again verbally warned, this time for failing to comply with instructions and insubordination.  On November 18, 2003, relator received a written warning, for failing to comply with instructions and insubordination.  The warning stated that “any future similar occurrences would result in disciplinary action, up to and including termination.”  The next day, relator was given a written warning for failing to address the work rule violations committed by his subordinates.   

            On December 12, 2003, relator was suspended for three days for failing to prevent a subordinate from engaging in the sale of illegal satellite television cards on company property.  Later that month, relator was late for work on three different occasions.  On January 5, 2004, relator was advised in writing of the need to set a good example for his subordinates, and that any deviations from his work schedule must be approved by the department manager.  For the next few weeks, relator worked with another manager on the night shift for support.  On February 16, 2004, his first day back on his own as night manager, relator came to work three hours late without notifying a superior that he would be late.  Three days later, relator’s employment at Mystic Lake Casino was terminated. 

            Relator established a benefit account with the Department of Employment and Economic Development.  A department adjudicator initially determined that relator was discharged from employment with Mystic Lake Casino for employment misconduct, and, thus, disqualified from receiving benefits.  Relator appealed, and a department unemployment law judge affirmed the initial determination.  Upon further appeal by relator, a representative of the commissioner issued the final agency decision, concluding that relator was discharged because of employment misconduct, and was therefore disqualified from receiving unemployment benefits.  This certiorari appeal followed.


            This courtexamines the decision of the commissioner’s representative rather than the decision of the unemployment law judge.  Kalberg v. Park & Recreation Bd., 563 N.W.2d 275, 276 (Minn. App. 1997).  Considerable deference is given to a decision by the commissioner’s representative.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  Appellate courts defer to the commissioner’s representative’s findings of fact if they are reasonably supported by the evidence in the record.  Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).  The findings will only be disturbed if the record could not reasonably tend to support them.  Schmidgall v. Filmtec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  However, whether an employee’s acts constitute misconduct is a question of law reviewed de novo by this court.  Ress, 448 N.W.2d at 523.

An employee discharged for employment misconduct is disqualified from receiving unemployment benefits.[1]  Minn. Stat. § 268.095, subd. 4 (Supp. 2003).  Minn. Stat. § 268.095, subd. 6(a) provides the definition for employment misconduct:

Employment misconduct means 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.[2] 

Even if not willful or deliberate, chronic and excessive absenteeism and tardiness may amount to misconduct.  Jones v. Rosemount, Inc., 361 N.W.2d 118, 120 (Minn. App. 1985).  Such conduct on the part of an employee, particularly after repeated warnings, is strong evidence that the employee disregards the employer’s interests or lacks concern for the employment.  See, e.g., McLean v. Plastics, Inc., 378 N.W.2d 104, 107 (Minn. App. 1985); Jones, 361 N.W.2d at 120; Little v. Larson Bus Serv., 352 N.W.2d 813, 815 (Minn. App. 1984); Evenson v. Omnetic’s, 344 N.W.2d 881, 883 (Minn. App. 1984).  Likewise, an employee who fails to properly notify an employer of intended absences and fails to comply with policies regarding attendance demonstrates a lack of concern for the employment and commits disqualifying misconduct.  See Edwards v. Yellow Freight Sys., 342 N.W.2d 357, 359 (Minn. App. 1984) (holding that employee committed misconduct by repeatedly failing to comply with the employer’s regulation to provide two-hours advance notice when unable to report for work).

            Relator contends that the commissioner’s representative erred in denying him unemployment benefits on the basis that he committed employment misconduct.  Relator asserts that despite his tardiness, his discharge from employment was not in compliance with the employer’s written policy because (1) the employer had not given him written notice that one additional point in the next 90 days would result in termination, and (2) relator had acquired only 7.5 points at the time of the termination and was short of the ten points required by the policy to justify termination.  Thus, relator contends that he is eligible for unemployment benefits because he was wrongfully discharged.

            We disagree.  The record reflects that after having been verbally warned twice for failing to comply with instructions, relator was given a written warning on November 18, 2003, that continued violations would result in disciplinary action, “up to and including termination.”  The following day, relator was given a written warning for failing to effectively supervise his employees.  In December 2003, relator was suspended for three days for the same reason.  On January 5, 2004, relator was given a letter reminding him to set an example for his crew.  Relator then spent the next six weeks on a different shift with a “babysitter.”  That did not help.  On his first shift back on his own as night manager, relator came to work three hours late without notifying his employer.  Three days later, relator’s employment was terminated. 

            As a general rule, refusing to abide by an employer’s reasonable policies and requests amounts to disqualifying misconduct.  Schmidgall, 644 N.W.2d at 804.  Here, relator was in a position of responsibility as the only manager on duty in his work area.  Relator’s behavior was not an isolated incident, but was the culmination of a series of disciplinary problems.  The record reflects that relator had been counseled multiple times for failing to follow his employer’s rules and instructions.  The record reflects that relator was on notice that he was at a stage in his employer’s disciplinary process where another violation would likely result in termination from employment.  Although relator had not accumulated ten points under the policy, there were other grounds for misconduct.  The record shows that relator was fired because (1) he was consistently tardy, (2) he ignored repeated admonishments about the importance of arriving at work on time and notifying others if he would be late, and (3) he failed to manage his team appropriately despite multiple warnings.  We conclude that relator’s repeated refusal to abide by his employer’s reasonable policies regarding showing up for work meets the definition of misconduct under Minn. Stat. § 268.095, subd. 6(a). 


[1]  This court includes the following footnote in all unemployment cases citing to Minn. Stat. § 268.095, subds. 1, 4, 7, and 8(a) (Supp. 2003): The revisor’s office inadvertently substituted the term “ineligible for” for the term “disqualified from” in Minn. Stat. § 268.095, subds. 1, 4, 7, 8(a) (Supp. 2003).  See Minn. Stat. § 268.095, subds. 1, 4, 7, 8(a) (2002) (using term “disqualified from”); 2003 Minn. Laws 1st Spec. Sess. ch. 3, art. 2, § 11 (making other changes to Minn. Stat. § 268.095, subd. 1, but retaining term “disqualified from”); 2003 Minn. Laws 1st Spec. Sess. ch. 3, art. 2, § 20(j), (k) (directing revisor to change the term “disqualified from” to “ineligible for” only in Minn. Stat. § 268.095, subd. 12, and then to renumber to Minn. Stat. § 268.085, subd. 13b).

[2]  The statutory definition in effect at the time of the discharge is the definition that controls.  See Brown v. Nat’l Am. Univ., 686 N.W.2d 329, 332 (Minn. App. 2004), review denied (Minn. Nov. 16, 2004).