This opinion will be unpublished and

may not be cited except as provided by

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








Annie L. Peterson,





Discover Magical Moments Daycare, Inc.,



Department of Employment and Economic Development,




Filed February 14, 2006


Dietzen, Judge



Department of Employment and Economic Development

Agency File No. 1039105



Annie L. Peterson, 5365 Weatherstone Circle NW, Rochester, MN  55901 (pro se relator)


Discover Magical Moments Daycare, Inc., 5450 Royal Place NW, Rochester, MN  55901 (respondent)


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 Wright, Presiding Judge; Dietzen, Judge; and Worke, 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 unemployment law judge (ULJ) determining that relator had been discharged for misconduct, disqualifying relator from unemployment benefits.  Because the ULJ’s determination that relator was discharged for misconduct is reasonably supported by the record, we affirm.


            Relator worked for respondent Discover Magical Moments Daycare as a teacher from August 23, 2004, until she was discharged on May 31, 2005.  Her usual work hours were 9:00 a.m. to 6:00 p.m., Monday to Friday, with a one-hour lunch period.  She was repeatedly tardy arriving at work and returning from lunch.  Based on detailed attendance records submitted by the employer, the ULJ found that relator was late for work 46 times and late returning from lunch about 26 times within a nine-month period.  After being warned repeatedly about her attendance, she was discharged following a final incident of tardiness.

            Relator sought unemployment benefits, but the Department of Employment and Economic Development (department) determined that she was disqualified because she had been discharged for employment misconduct.  She appealed the decision.  At the hearing before the ULJ, relator denied having any medical problems.  She explained that she was having some personal problems with her family and that she had been unable to sleep.  She testified that she had received a prescription for sleeping pills, but said that when she took those, she was unable to wake up to her alarm clock.  Relator acknowledged returning late from lunch, but explained that she had called each time she was late, offering to return to work.  But relator was told it was not necessary.

            On August 4, 2005, the ULJ determined that because relator’s pattern of tardiness clearly displayed a serious violation of the standards of behavior that her employer had the right to reasonably expect or a substantial lack of concern for the employment, relator was disqualified from receiving unemployment benefits.  The ULJ denied the petition for reconsideration, and this certiorari appeal follows.


            In reviewing a decision by the ULJ, this court may reverse if relator’s substantial rights have been prejudiced because the decision was affected by error of law or if the findings were “unsupported by substantial evidence in view of the entire record as submitted.”  Minn. Stat. § 268.105, subd. 7(d)(4), (5) (Supp. 2005).[1]

            Thus, factual findings will not be disturbed as long as they are reasonably supported by the evidence.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  “Whether a particular act constitutes disqualifying misconduct is a question of law,” which an appellate court will review de novo.  Id.

            An employee who was discharged for misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4(1) (2004).

                                    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.


                                    Inefficiency, inadvertence, simple unsatisfactory conduct, a single incident that does not have a significant adverse impact on the employer, conduct an average reasonable employee would have engaged in under the circumstances, poor performance because of inability or incapacity, good faith errors in judgment if judgment was required, or absence because of illness or injury with proper notice to the employer, are not employment misconduct.


Minn. Stat. § 268.095, subd. 6(a) (2004).  Continued tardiness after several warnings can constitute disqualifying misconduct.  Evenson v. Omnetic’s, 344 N.W.2d 881, 883 (Minn. App. 1984) (interpreting earlier definition of employment misconduct).

            Relator first challenges the credibility of the evidence that her employer offered.  The employer submitted forms entitled “Employee Consultation,” in which the warnings to relator were documented.  Relator asserts that she did not remember the consultations, that she did not receive copies, and that she did not sign them, and asserts that although they were dated and signed by different staff, some of these were in the same handwriting.

            Findings will not be disturbed if based upon substantial evidence.  Schmidgall, 644 N.W.2d at 804.  This court will defer to credibility determinations made by the fact-finder.  Jenson v. Dep’t of Econ. Sec., 617 N.W.2d 627, 631 (Minn. App. 2000), review denied (Minn. Dec. 20, 2000).  Besides the employee consultation forms, the ULJ also considered testimony by the employer that relator had been repeatedly warned.  The ULJ’s finding that relator had been repeatedly warned about her tardiness is reasonably supported by substantial evidence.

            Relator also challenges several of the time entries her employer submitted, claiming that they were “made up.”  At the hearing, however, she had agreed that the times recorded were accurate.  In any event, it was within the province of the ULJ to credit the time records offered by the employer and the findings are supported by substantial evidence.

            Relator next challenges statements made and evidence presented at the hearing as to several facts, including (a) whether she was suspended for a week or three days; (b) whether her employer had refused to pay her medical bill; (c) whether she was ever a “no call/no show”; and (d) whether she received warnings about improperly allowing children to wrestle or about not paying attention to them.  Because the ULJ did not make findings as to these facts, relator’s arguments are irrelevant to the issues on appeal.

            Relator complains that she did not receive copies of the employer’s files that the employer submitted to the department for the hearing before the ULJ.  She acknowledges, however, that she did receive copies of these files from the department.

            Finally, relator notes that on the day she was terminated, her employer threatened to sue her if she said anything bad about the employer.  This matter is not part of the record and cannot be raised for the first time on appeal.  See Minn. R. Civ. App. P. 110.01 (papers and exhibits filed below and transcript constitute record on appeal), 115.04 (applying rule 110 to certiorari appeals).

The decision of the ULJ that relator was discharged for misconduct and disqualified from receiving unemployment benefits is sufficiently supported by the record and, therefore, is affirmed.


[1] This provision is applicable to decisions issued on or after 30 days following enactment, which occurred on May 26, 2005.  2005 Minn. Laws ch. 112, art. 2, § 34.