This opinion will be unpublished and

may not be cited except as provided by

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






David J. Clements,





Roots & Fruits Cooperative Produce,



Department of Employment and Economic Development,



Filed November 29, 2005


Halbrooks, Judge



Department of Employment and Economic Development

File No. 16909 04



David J. Clements, 9136 Blaisdell Avenue South, Bloomington, MN  55420 (pro se relator)


Steven P. Hegranes, Stebbins & Hegranes, 877 Jefferson Avenue, Suite D, St. Paul, MN  55102 (for respondent Roots & Fruits Cooperative Produce)


Linda A. Holmes, Department of Employment and Economic Development, 332 Minnesota Street, Suite E200, St. Paul, MN  55101 (for respondent Department of Employment and Economic Development)



            Considered and decided by Klaphake, Presiding Judge; Halbrooks, Judge; and Wright, 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 decision of the senior unemployment review judge (SURJ), who ruled that relator had been discharged from his employment for misconduct and was disqualified from receiving unemployment benefits.  Because the record reasonably supports the decision of the SURJ and because the decision is correct as a matter of law, we affirm.


            Relator David J. Clements was employed as a delivery driver with respondent Roots & Fruits Cooperative Produce from May 12, 2003, through September 10, 2004.  Pursuant to the employee handbook, an employee who arrived at work five minutes after the scheduled start time was considered late or tardy.  Employees were to notify their immediate supervisor or manager at least one-half hour before start time if they were going to be late or absent.  Otherwise, it was considered unexcused and subject to disciplinary action, up to and including dismissal.  More than four unexcused absences or late arrivals within one rolling month and more than one in a two-week period were considered excessive.  Clements was familiar with this attendance policy.

            Testimony at the hearing revealed disputes as to Clements’ start time and how much leeway employees had in arriving after their scheduled start times.  Clements acknowledged at the hearing that he was late on the dates stated by Brian DeLong, the operations manager and one of Clements’s supervisors, and explained that he called in when he was going to be 15 to 20 minutes late.  He also offered evidence that the policy on excessive tardiness was not enforced.

            DeLong gave Clements several warnings relating to other conduct.  The first warning was given when, after delivering his route on August 13, 2004, Clements left without checking with the dispatcher to see if further deliveries had to be made.  Consequently, others had to do these deliveries for him.  Clements disputed these facts at the hearing, explaining that he had checked with the dispatcher but received no response and that he had not seen any invoices indicating additional deliveries, so he left.  Clements viewed it as a miscommunication issue that had been resolved.

            Next, Clements received a warning on September 7 for an incident on August 20.  On that date, Clements made a delivery out of order, resulting in a late delivery to a restaurant, prompting the restaurant to complain.  Drivers had earlier been warned not to change the order of their routes and to instead report problems to DeLong.  At the hearing, Clements did not dispute that he had made the delivery out of order, but explained why he did so.

            In the incident leading to his discharge, Clements failed to report to work on September 10 at 5:00 a.m. as scheduled.  Although he had been sick to his stomach the previous night, he did not call and report his illness to his direct supervisor who accepted calls 24 hours a day.  Instead, at 2:00 a.m. Clements decided that he would try to go into work at 5:00 a.m. that day.  But he overslept and woke at 7:00 a.m. to a ringing phone.  The caller had been DeLong, who left Clements a message.  Clements returned the call.  After talking with Clements, DeLong conferred with other staff and reviewed his record.  Based on Clements’s warnings, the no-show, and a review of his attendance during the last three weeks, which revealed late arrivals, DeLong decided to fire Clements.  He called Clements back and terminated him.

            Clements established an unemployment account, and the department adjudicator determined that he was disqualified from receiving benefits because he had been discharged for misconduct.  He appealed, and a hearing was held, after which the unemployment law judge affirmed.  He sought further review from the SURJ.

            Based on the evidence, the SURJ found that Clements had been warned for leaving his route without notifying the dispatcher on August 13.  Further, he had also been warned on September 7, 2004, for the August 20, 2004 incident in which he deviated from his route order.  The SURJ found that Clements had been more than 15 minutes tardy on five occasions between August 26 and September 4, 2004.  The SURJ further found that when Clements did not report to work on September 10, 2004, it was his sixth excessive absence or tardy within a rolling month and that he could have called to report his impending absence due to illness, but did not do so.

            The SURJ found the employer has the right to expect its employees to report for scheduled work or to provide proper notice when they cannot work.  The SURJ concluded that Clements’s conduct clearly displayed a serious violation of the standards of behavior an employer had the right to reasonably expect and a substantial lack of concern for his employment.  That the employer may not have uniformly enforced its attendance policy was no defense to a finding of employment misconduct.  The SURJ determined that Clements had been discharged for employment misconduct and was disqualified from receiving unemployment benefits. 


            Findings by the SURJ will be reviewed under a clearly erroneous standard.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  Findings will be affirmed if reasonably supported by the evidence.  Id.  Questions of law will be reviewed de novo.  Id.  “Whether an employee engaged in conduct that disqualifies the employee from unemployment benefits is a mixed question of fact and law.”  Id.

            An employee who is discharged for misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4(1) (2004).  Misconduct constitutes “intentional, negligent, or indifferent conduct . . . (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.”  Id., subd. 6(a) (2004).  It does not include “a single incident that does not have a significant adverse impact on the employer” or “absence because of illness or injury with proper notice to the employer.”  Id.  The employer has a “right to establish and enforce reasonable work rules relating to absenteeism.”  Jones v. Rosemount, Inc., 361 N.W.2d 118, 120 (Minn. App. 1985); see also McLean v. Plastics, Inc., 378 N.W.2d 104, 107 (Minn. App. 1985) (excessive tardiness constituted misconduct where tardy 13 times in one year with two warnings).

            Clements first argues that he did not commit misconduct because he offered evidence that his actions had no adverse impact on the employer.  Under the statute, misconduct does not include “a single incident that does not have a significant adverse impact on the employer.”  Minn. Stat. § 268.095, subd. 6(a).  This exception is not applicable because there was more than one incident.

            Clements next argues that this court should overturn the SURJ’s findings that his arrivals were late and that his late arrivals were excessive under the policy.  The parties presented extensive evidence on these issues at the hearing.  “A decision regarding the credibility of witnesses rests within the discretion of the commissioner, and the testimony should not be reweighed on appeal.”  Youa True Vang v. A-1 Maint. Serv., 376 N.W.2d 479, 482 (Minn. App. 1985).  While there may have been four absences of more than 15 minutes within a two-week period rather than five, the absences, along with the no-show, meet the definition of excessive absences and tardy arrivals under the policy.  Further, Clements acknowledged that he had been late to work and did not dispute the precise number of late arrivals.  Giving deference to the SURJ’s credibility and factual determinations, and recognizing that there was reasonable evidence in the record to support the SURJ’s findings, we must affirm.

            Clements also disputes the finding that on September 10, he did not call or report in at his scheduled 5:00 a.m. start time.  It is undisputed that after DeLong called Clements at home at 7:00 a.m. and left a message, Clements awoke and returned the call, explaining that he was ill.  The SURJ found that Clements could have called in but did not do so because he thought he would be able to work.  But then Clements slept through his alarm.  Absences due to illness are not misconduct “with proper notice to the employer.”  Minn. Stat. § 268.095, subd. 6(a).  The call did not comply with the employer’s policy requiring employees to call in at least one-half hour before their scheduled start time when they are ill.  The SURJ’s findings are not clearly erroneous, and Clements did not provide proper notice.

            Next, Clements argues that the employer improperly used the previous verbal warnings against him, despite the fact that the reason for his discharge was tardiness and attendance problems.  He contends these should not be considered misconduct.  While the SURJ made findings as to these warnings, the determination of misconduct was based on the tardiness and absences, not the warnings.  Further, as to the merits, the SURJ heard testimony by DeLong indicating that the company did consider these incidents to be misconduct, implicitly rejecting Clements’s explanations.  This court will not disturb the credibility determinations of the SURJ.

            Clements also contends that the SURJ erred because the August 20, 2004 incident and the September 7, 2004 warnings involved one incident and not two.  In the SURJ’s findings, the August 20 incident and the September 7 warning are addressed in separate paragraphs, but the SURJ explicitly states that the September 7 warning was for the August 20 incident.  Consequently, there was no error.

            Because the findings by the SURJ are supported by reasonable evidence and the determination that relator was discharged for misconduct is correct as a matter of law, the decision of the SURJ is affirmed.