This opinion will be unpublished and

may not be cited except as provided by

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






Dennis L. Behnke,





Pier Foundry and Pattern Shop, Inc.,



Department of Employment and Economic Development,



Filed May 23, 2006


Stoneburner, Judge


Department of Employment and Economic Development

File No. 672105


Dennis L. Behnke, 3395 Upper 147th Street West, Rosemount, MN 55068 (pro se relator)


Pier Foundry and Pattern Shop, Inc., 51 State Street, St. Paul, MN 55107 (respondent)


Linda A. Holmes, Department of Employment and Economic Development, 332 Minnesota Street, Suite E200, St. Paul, MN 55101-1351 (for respondent Department of Employment and Economic Development)


            Considered and decided by Stoneburner, Presiding Judge; Wright, Judge; and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N


            Relator challenges the decision by the senior-unemployment-review judge (SURJ) that he was disqualified from receiving unemployment benefits because he was discharged for misconduct based on excessive tardiness.  Because we conclude that the determination that relator was discharged for misconduct is supported by the record, we affirm.


            Relator worked in quality control at Pier Foundry, which is an iron foundry, from September 3, 2002, through April 2, 2005.  His start time was 5:30 a.m.  Relator’s time cards showed that between January 1, 2005, and April 2, 2005, he was late between one minute and one hour and forty-one minutes on 31 occasions.  His tardiness meant that he often did not work a full eight-hour day.

            The company handbook outlined progressive disciplinary procedures using points.  A human-resources employee testified that these did not apply to manager or supervisor positions such as relator’s, although as of January 1, 2005, points were being used to track supervisors’ tardiness and absences.  The human-resources employee testified that excessive tardiness or absences are also grounds for termination under the handbook.

            Relator was warned orally on several occasions not to be late.  On February 16, 2005, he was given a written warning for his tardiness.  On April 2, 2005, a Saturday, relator was scheduled to start work at 7:00 a.m.  He arrived at 8:34 a.m.  The employer discharged him for excessive tardiness.

            A department adjudicator initially determined that relator was discharged for reasons other than employment misconduct and was not disqualified from receiving unemployment benefits.  Pier Foundry appealed, and a de novo hearing was held.  The unemployment-law judge reversed the initial determination, finding that relator had been discharged for employment misconduct and was disqualified.  Relator appealed, and the SURJ held that relator was discharged for employment misconduct and disqualified from receiving benefits.  Relator seeks certiorari review from this court.


            “Whether an employee engaged in conduct that disqualifies the employee from unemployment benefits is a mixed question of fact and law.”  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  This court will review the findings in the light most favorable to the decision and “will not disturb them as long as there is evidence that reasonably tends to sustain those findings.”  Id.  Whether particular conduct meets the standard for disqualifying conduct is a question of law, which the appellate court will review de novo.  Id.

            An employee who is discharged because of employment misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4(1) (2004).  Employment misconduct is defined as “any 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).  The following is not misconduct:

                        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.


Id.  This definition of employment misconduct is exclusive and no other definition applies.  Id., subd. 6(e) (2004).

            “The employer has a right to expect an employee to work when scheduled.”  Little v. Larson Bus Serv., 352 N.W.2d 813, 815 (Minn. App. 1984) (addressing unexcused absences).  Continued tardiness, combined with several warnings, can show disregard by the employee of the employer’s interests of the standards of behavior the employer has the right to expect of its employees.  Evenson v. Omnetic’s, 344 N.W.2d 881, 883 (Minn. App. 1984).  Excessive tardiness can constitute misconduct.  McLean v. Plastics, Inc., 378 N.W.2d 104, 107 (Minn. App. 1985).

            Relator contends that the employer failed to follow the disciplinary steps set out in the employee handbook before firing him.  When an employer does not follow the disciplinary procedures in the handbook and the employees had no knowledge that the provisions would not be followed, the employee did not commit misconduct and is qualified for benefits.  Hoemberg v. Watco Publishers, Inc., 343 N.W.2d 676, 678-79 (Minn. App. 1984), review denied (Minn. May 15, 1984).  But if the handbook indicates that disciplinary steps “may” be taken and the employee engaged in a more serious breach of duties than contemplated by the disciplinary procedures, the determination that the employee had engaged in disqualifying conduct was proper.  Thurner v. Philip Clinic, Ltd., 413 N.W.2d 537, 541 (Minn. App. 1987).

            Relator argues that the company’s handbook sets out a point system indicating certain disciplinary steps that must be taken before discharge.  He argues that because the required disciplinary steps of a second warning letter and a three-day suspension before discharge were not followed, and because he did not have enough points to merit discharge, he did not commit misconduct.

The SURJ found that the evidence showed that relator was given warnings for failure to arrive at work on time and that relator had talked with other employees about the need to be at work on time.  The SURJ noted that the employee handbook outlines a point system for attendance.  He also found that the handbook provides that excessive tardiness can lead to termination.  The SURJ did not have to resolve relator’s argument that his discharge was not proper under the discipline procedures set out because the SURJ determined that relator was discharged under the provision that excessive tardiness can lead to termination.  See id. (upholding determination of misconduct when handbook did not mandate that disciplinary steps apply).

Relator raises issues regarding other disputed facts at the hearing.  But the SURJ did not make findings on these issues, and they were not the basis for his decision.  Relator also raised a claim of sexual harassment.  As the SURJ noted, this issue is relevant to an employee who quits, not to an employee who is discharged.  See Minn. Stat. § 268.095, subd. 3(f) (2004) (providing that applicant has good reason caused by employer for quitting if based on sexual harassment of which the employer was aware or should have been aware).

            Here, the SURJ upheld the discharge under the handbook provision authorizing discharges for excessive tardiness.  In light of the excessive number of absences along with oral warnings and a written warning cautioning relator not to be tardy any longer, the determination that relator was discharged for misconduct is reasonably supported by the record and is correct as a matter of law.