This opinion will be unpublished and

may not be cited except as provided by

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






Carlos M. Valdez,





Adecco USA Inc.,



Commissioner of Employment and Economic Development,



Filed May 3, 2005


Toussaint, Chief Judge


Agency File No. 4059 04


Carlos M. Valdez, 2604 Grand Street, Bettendorf, IA 52722 (pro se relator)


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


Adecco USA, Inc., 900 Second Avenue South, Suite 270, Minneapolis, MN 55402 (respondent)


            Considered and decided by Toussaint, Chief Judge; Klaphake, Judge; and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

            Relator Carlos M. Valdez challenges the commissioner’s representative’s decision that he was discharged for employment misconduct and is, therefore, disqualified from receiving unemployment benefits.  Because we conclude that the record supports the commissioner’s representative’s findings, and that those findings support the decision, we affirm.    


Whether a discharged employee has engaged in 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, see Colburn v. Pine Portage Madden Bros., Inc., 346 N.W.2d 159, 161 (Minn. 1984), and this court defers to the commissioner’s representative’s factual findings if the record reasonably sustains them.  Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996).  But whether an act constitutes employment misconduct is a question of law, which we review de novo.  Id.

A person discharged because of employment misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4 (Supp. 2003).[1]  Employment misconduct is “any intentional, negligent, or indifferent conduct, on the job or off the job (1) that evinces a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee, or (2) that demonstrates a substantial lack of concern for the employment.”  Minn. Stat. § 268.095, subd. 6(a) (Supp. 2003); see also Bray v. Dogs & Cats Ltd. (1997), 679 N.W.2d 182, 186 (Minn. App. 2004) (recognizing that amended definition applies to cases in which employee was discharged after August 1, 2003). 

Here, the commissioner’s representative made several findings supporting its decision, including that (1) relator was “frequently” tardy while working for the employer’s client; (2) although relator was scheduled to work at 3:30 p.m., he would arrive closer to 4:00 p.m.; (3) despite his tardiness, relator would sign-in as if he had arrived at 3:30 p.m.; (4) the client had counseled relator about his tardiness and had contacted the employer about its desire to discharge him due to tardiness; and (5) during the employer’s investigation, relator gave conflicting reasons for his tardiness and became “upset, belligerent, and raised his voice and frequently interrupted” his supervisor. 

We conclude that the commissioner’s representative’s findings are supported by the record.  At the hearing before the unemployment law judge, relator’s supervisor, DeeAnna Omtvedt, testified that the client had complained that relator was “consistently arriving 30 minutes late to his assignment” and was “arriving at work at 4:00 in the afternoon yet signing in to the group time sheet at 3:30.”  Omtvedt testified that although relator had told the client that he was late due to “transportation issues,” he told Omtvedt that he was late because he had reported to a different floor at the start of his shift.  When Omtvedt attempted to clarify these inconsistencies, Omtvedt testified that relator became “argumentative” and “insubordinate” by yelling at her and interrupting her.  Omtvedt also testified that relator’s behavior violated company policy, which required relator to “behave in a professional manner,” meaning that his “personal conduct, including conversations in the workplace, must be free of behavior that violates [the employer’s] policies.” 

Although relator disputed some of the allegations, portions of his testimony support the commissioner’s representative’s findings.  For example, relator admitted that he would generally sign in at 3:45 p.m., but would nevertheless write 3:30 p.m. as his start time.  Relator also admitted that he was not “working” by 3:30 p.m., as required by his employer.  And while relator denied raising his voice or getting upset during his conversation with Omtvedt, he did admit that “[m]aybe she believed that [he] was raising [his] voice” because he was on a cellular phone.  Because we defer to the commissioner’s representative’s ability to weigh the evidence and make credibility determinations, we conclude that the record supports the findings.  See Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995).       

Furthermore, we conclude that the findings support the commissioner’s representative’s decision that relator was discharged for employment misconduct.  This court has held that an employee’s insubordinate behavior can constitute employment misconduct.  Snodgrass v. Oxford Props., Inc., 354 N.W.2d 79, 80 (Minn. App. 1984).  An employee’s failure to cooperate in an employer’s investigation into inappropriate behavior may also constitute misconduct.  See Drellack v. Inter-County Cmty. Council, Inc., 366 N.W.2d 671, 674 (Minn. App. 1985); Cherveny v. 10,000 Auto Parts, 353 N.W.2d 685, 688 (Minn. App. 1984).  Furthermore, an employee’s knowing violation of an employer’s reasonable policy is misconduct.  Schmidgall, 644 N.W.2d at 806.  Finally, because an employer has a right to expect its employees will work when scheduled, Little v. Larson Bus Serv., 352 N.W.2d 813, 815 (Minn. App. 1984), chronic and excessive absenteeism and tardiness, even if not willful or deliberate, may constitute 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; cf. Little, 352 N.W.2d at 815 (holding that single incident of unexcused one-week absence was misconduct). 

We agree with the commissioner’s representative that “[t]he employer had a right to expect that [relator] would return to work on time[,] . . . punch in for work when he arrived on the job, and that he would cooperate with the employer in its investigation.”  The record indicates that relator continued to be late even after the client had counseled him on the issue, and that when the employer investigated these allegations, relator gave conflicting explanations, became argumentative and insubordinate in violation of the employer’s policy, and failed to cooperate with the investigation.  Therefore, we conclude that relator was properly discharged for employment misconduct.


[1] 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 term “disqualified from” to “ineligible for” only in Minn. Stat. § 268.095, subd. 12, and then to renumber subsection to Minn. Stat. § 268.085, subd. 13b).