This opinion will be unpublished and

may not be cited except as provided by

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






Margaret A. Nutall,





Associates in Women's Health, P.A.,



Department of Employment and Economic Development,



Filed August 22, 2006


Shumaker, Judge


Department of Employment and Economic Development

File No. 4178 05




Margaret A. Nutall, 5125 Holly Lane, Unit 3, Plymouth, MN 55446 (pro se relator)


Associates in Women's Health, P.A., 7250 France Avenue South, Suite 100, Edina, MN 55435 (respondent employer)


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



            Considered and decided by Ross, Presiding Judge; Shumaker, Judge; and Wright, Judge.


U N P U B L I S H E D   O P I N I O N


            Relator challenges the conclusion of the senior unemployment review judge (SURJ) that she was discharged for misconduct.  Because that conclusion is based on findings that are reasonably supported by the evidence, we affirm.


            Relator Margaret Nutall worked as a medical-records associate for respondent Associates in Women’s Health, P.A., from July 2004 until her discharge in January 2005.  A SURJ, after de novo review of the record, determined that she had been discharged for misconduct. 

Misconduct includes “any intentional, negligent, or indifferent conduct, on the job or off the job . . . that displays clearly a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee.”  Minn. Stat. § 268.095, subd. 6(a) (2004).  This definition is exclusive; no other definition applies.  Minn. Stat. § 268.095, subd. 6(e) (2004).  Whether an employee’s acts constitute misconduct is a question of law that this court reviews de novo.  Schmidgall v. FilmTec Corp., 644 N.W. 2d 801, 804 (Minn. 2002).  But factual findings are reviewed in the light most favorable to the decision and will not be disturbed if there is evidence that “reasonably tends to sustain” them.  Id.

Relator was discharged because of her excessive absences and tardiness and her failure to properly notify respondent of her absences and tardiness.  Historically, both absence and tardiness have been considered misconduct.  See, e.g., Del Dee Foods, Inc. v. Miller, 390 N.W.2d 415, 418 (Minn. App.1986) ("[A]n employee engages in misconduct if he is absent even once without notifying his employer."); Evenson v. Omnetic's, 344 N.W.2d 881, 883 (Minn. App.1984) (holding that repeated tardiness, particularly when combined with an employer's warnings, is misconduct for the purposes of unemployment compensation).  Two incidents, one in November 2004 and one in January 2005, were the primary grounds for relator’s discharge.

The SURJ found that relator was given permission to be absent from work to go to New York in November 2004, “with the understanding she would report to work at 12:00 p.m. on November 22, 2004” and that “On November 22, 2004, [relator] did not call in before her start time or report to work.  [She] called after the office was closed and left a message that she had missed work because she was tired from her trip and she fell asleep.”  Relator submitted a statement that

[I]t was unfortunate that when I returned home on [November 22, 2004] I was unable to return to work that afternoon due to the tiredness of the trip.  The problem occurred when I didn’t report to work or talk to a live person but left a message on the voice [machine] before 5 pm . . . .


Relator also testified that,

I was just gonna go right to work but I was too tired so I said well I’m gonna check in at home and drop this stuff off . . . and I said I’ll get me at least a half an hour lay down time just to rest and happily I went to sleep and actually didn’t wake up and I called them before five o’clock and left it on the message system. 


Both relator’s statement and her testimony support the SURJ’s finding.

The SURJ also found that, prior to the November incident, “[Relator] was aware of  the policy” that “require[d] employees to call and report an absence or tardiness to specified managers at specified telephone numbers one hour before their scheduled start time.”  Respondent’s testimony was that relator received a copy of the policy “[w]hen she started with our office as an employee.”  Relator claimed that she did not receive a copy until November 23.  She testified that only after the November 22 incident was she told not to leave a message on the voice-message system but instead talk to a manager.  She was then handed a job description and a card with the managers’ phone numbers to call.  Then she was told that that this was the correct way to call in.  Thus, her evidence conflicts with respondent’s evidence.

“When the parties have presented conflicting evidence on the record, this court must defer to the [SURJ’s] ability to weigh the evidence; we may not weigh that evidence on review.”  Whitehead v. Moonlight Nursing Care, Inc., 529 N.W. 2d 350, 352 (Minn. App. 1995).  The SURJ weighed the evidence and concluded that respondent’s evidence on this point outweighed relator’s. 

The SURJ also weighed the parties’ evidence and found that, before relator left for a family funeral in Chicago on January 25, 2005, she “told [respondent] she would be at work on [Friday] January 28, 2005.”  Relator said in her statement,

I did talk to my manager . . . on January 24 and received approval for all days including Friday [January 28, 2005] if need be . . . I stated that I should be back by Friday if not I will call her. 


Relator’s manager testified that “[Relator] called me . . . and she said there was a death in the family . . . and I said okay, what day are you planning to come back . . . and she said I will be back for sure on Friday and I said okay.  And I even specifically said okay, Friday then and she said yes.” 


Respondent’s evidence supports the SURJ’s finding, and this court does not disturb the SURJ’s weighing of conflicting evidence.  See id.

It is undisputed that, after November 23, relator was aware of the appropriate procedure for reporting any absence or tardiness and that she failed to follow that procedure on January 28, when she did not call in until 8:50, fifty minutes after her scheduled start time.  She testified that her cell phone would not pick up in the zone area so she had to wait until she got to a better area to call.  When asked what she meant by her phone not working, she said, “[I]t was like on roaming or something” and that she didn’t know why it started to work again.  When asked why she hadn’t stopped to call from a public phone, she said “we were like a ways from the phone” and “we didn’t have anymore money left.” 

The SURJ found:

[Relator] also testified she was not able to call in before the start of her shift because her cell phone was not working.  However, [relator] used her same cell phone at 8:50 a.m. to call in her absence.  We do not find [relator’s] explanations for failing to . . . call in or to report to work on time to be reasonable or believable.


            This court defers to the SURJ’s credibility determinations.  See id.  Evidence reasonably tends to sustain the SURJ’s findings on which the conclusion that relator was discharged for misconduct is based.