This opinion will be unpublished and

may not be cited except as provided by

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






Cheryl A. Cleven,





Marvin Windows,



Department of Employment and Economic Development,



Filed May 24, 2005


Halbrooks, Judge



Department of Employment and Economic Development

File No. 10046 04



Cheryl A. Cleven, 30750 630th Avenue, Warroad, MN 56763 (pro se relator)


Elizabeth A. Papacek, Leonard Street and Deinard, 150 South 5th Street, Suite 2300, Minneapolis, MN 55402 (for respondent Marvin Windows)


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 commissioner)




            Considered and decided by Lansing, Presiding Judge; Toussaint, Chief Judge; and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N


By writ of certiorari, relator challenges the order of the Department of Employment and Economic Development’s senior unemployment-review judge disqualifying her from receiving unemployment benefits.  Because the record reasonably supports the decision of the senior unemployment-review judge that relator committed misconduct, we affirm. 


            Relator Cheryl A. Cleven was employed by respondent Marvin Lumber & Cedar Co. from December 11, 1996, through May 25, 2004.  Cleven was absent from work on April 8, 16, 26, 27, and 28, 2004.  She initially requested that her absences be treated as leave under the Family Medical Leave Act (FMLA).  Respondent asked Cleven to complete the necessary paperwork to qualify her absences for FMLA leave, which would require her to obtain a doctor’s certification of a serious, chronic health condition.  Cleven did not return the completed paperwork to respondent and decided to use paid time off to cover the absences. 

On May 5, 2004, Cleven again requested FMLA leave.  On May 6, 2004, Cleven did not call respondent or report for work.  Cleven was absent and requested FMLA leave for the dates of May 12, 13, 14, and 15, 2004.  On May 13, 2004, Cleven provided respondent with a form filled out by a workability evaluator stating that Cleven should work part-time and that she would be able to work full-time again “once symptoms subside,” but Cleven did not provide respondent with any of the FMLA paperwork.  On May 25, 2004, she missed part of the workday for an appointment.  Respondent discharged Cleven on May 25, 2004, because of her poor attendance record. 

Cleven subsequently established a benefits account with the Department of Employment and Economic Development.  A department adjudicator determined that Cleven was disqualified from receiving unemployment benefits, and Cleven appealed. 

At a hearing before the unemployment-law judge (ULJ), Cleven admitted that she knew that the form filled out by the workability evaluator was not part of the FMLA paperwork required by respondent.  But she explained that she failed to complete the FMLA paperwork because she thought the form from the workability evaluator would be sufficient, and she was concerned that her doctor would write his recommendation that Cleven work part-time.  Cleven stated that she thought that in order to change to part-time status she would have to quit and reapply for a job.  Cleven also asserted that respondent did not follow the progressive-discipline policy set forth in its employee handbook.  The ULJ concluded that Cleven was disqualified from unemployment benefits for committing employment misconduct.  The ULJ determined that respondent followed its discipline policy because the policy reserved the right for the company to “follow a different schedule [of discipline] when appropriate” and Cleven’s numerous unexcused absences created an appropriate occasion for use of the reserved right by respondent. 

Cleven appealed the decision to the senior unemployment-review judge.  Because the determinative facts were not in dispute, the senior unemployment-review judge declined to conduct further proceedings and ordered that the ULJ’s findings of fact and decision be adopted as the department’s final findings of fact and decision.  This appeal follows.


On appeal, we accord particular deference to the decision of the senior unemployment-review judge.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  The determination of whether an employee committed a specific act of misconduct is a question of fact.  Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  We review findings of fact made by the senior unemployment-review judge in the light most favorable to the decision, and we will not reverse such findings if they are reasonably supported by the record.  Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996).  But whether specific acts constitute misconduct is a question of law that we review de novo.  Scheunemann, 562 N.W.2d at 34.

When employees are discharged for employment misconduct, they are disqualified from receiving unemployment benefits.[1]  Minn. Stat. § 268.095, subd. 4 (Supp. 2003).  Minnesota law defines employment misconduct as “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.”  Id., subd. 6(a) (Supp. 2003).  Absence caused by illness is not employment misconduct if the employee provides the employer with proper notice.  Id.

Employers have the right to create and enforce reasonable rules relating to absenteeism.  Jones v. Rosemount, Inc., 361 N.W.2d 118, 120 (Minn. App. 1985).  Repeated violations of reasonable work rules generally constitute misconduct.  McGowan v. Executive Express Transp. Enters., Inc., 420 N.W.2d 592, 596 (Minn. 1988).  Failing to comply with attendance policies demonstrates a lack of concern for the employment and generally amounts to disqualifying misconduct.  See Edwards v. Yellow Freight Sys., 342 N.W.2d 357, 359 (Minn. App. 1984) (holding that an employee committed misconduct by repeatedly failing to provide two hours’ notice of absences as required by employer).

Cleven argues that she was discharged in violation of respondent’s policies.  But the ULJ and senior unemployment-review judge each found that respondent reasonably requested that Cleven turn in FMLA paperwork within 15 days after requesting FMLA leave and missing work.  Because Cleven did not ask her doctor to fill out the paperwork, Cleven intentionally violated the employer’s reasonable policy.  Additionally, the ULJ and senior unemployment-review judge found that, after Cleven accumulated numerous unexcused absences, respondent’s decision to exercise its reserved right to deviate from the usual discipline schedule was reasonable.

Cleven missed five days of work in May 2004 and requested FMLA leave but failed to provide any documentation of her illness or injury to respondent.  Even when respondent extended the time for Cleven to provide medical documentation, Cleven failed to ask her doctor for any such documentation.  She also missed an additional day of work in May and failed to call in and report her absence, and she missed part of another day in May to attend a non-medical appointment.  We conclude that Cleven’s repeated failure to comply with respondent’s reasonable requests for documentation of any health problems, coupled with Cleven’s continued absences, constitute misconduct that disqualifies Cleven from receiving unemployment benefits.  The record supports the senior unemployment-review judge’s findings and establishes that Cleven 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 the term “disqualified from” to “ineligible for” only in Minn. Stat. § 268.095, subd. 12, and then to renumber the subsection to Minn. Stat. § 268.085, subd. 13b).