This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






Melissa A. Parsons,





Minnesota Care Staffing, Inc.,



Department of Employment and

Economic Development,



Filed May 1, 2007

Klaphake, Judge


Department of Employment and Economic Development

File No. 17549 05


Dale A. Hansen, Erickson, Zierke, Kuderer & Madsen, P.A., 114 West Second Street, Fairmont, MN  56031 (for relator)


Minnesota Care Staffing, Inc., Crossroads Medical Services, 9279 Dartmouth Avenue, Eden Prairie, MN  55347-1927 (respondent)


Linda A. Holmes, Minnesota Department of Employment and Economic Development, 1st National Bank Building, 332 Minnesota Street, Suite E200, St. Paul, MN 55101-1351 (for respondent Department)


            Considered and decided by Shumaker, Presiding Judge, Klaphake, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N


            Relator Melissa Parsons challenges a decision by an unemployment law judge (ULJ) that affirms on reconsideration an earlier decision that relator was disqualified from receiving unemployment benefits because she was discharged for employment misconduct.  Relator argues that the ULJ erred in concluding that relator’s reasons for missing work—illness and car troubles—constituted employment misconduct under the applicable statutory definition.  Because relator’s cancellation of 16 shifts over a six-week period was excessive and contrary to the policies set out by her employer, we affirm the ULJ’s decision.


            On review, we may affirm the ULJ’s decision, remand for further proceedings, or reverse or modify if relator’s substantial rights have been prejudiced because the findings, inferences, conclusion, or decision are “(1) in violation of constitutional provisions; (2) in excess of the statutory authority or jurisdiction of the department; (3) made upon unlawful procedure; (4) affected by other error of law; (5) unsupported by substantial evidence in view of the entire record as submitted; or (6) arbitrary or capricious.”  Minn. Stat. § 268.105, subd. 7(d) (Supp. 2005).

            Whether an employee has committed employment misconduct is a mixed question of law and fact.  Schmidgall v. FilmTech Corp., 644 N.W.2d 801, 804 (Minn. 2002).  Whether the employee committed a particular act requires the ULJ to make factual findings, which may involve credibility determinations and to which we accord great deference on appeal.  Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  But whether an act constitutes employment misconduct involves a question of law, which we review de novo.  Id.

            Employment misconduct is defined as “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) displays clearly a substantial lack of concern for the employment.”  Minn. Stat. § 268.095, subd. 6(a) (2004).  But

[i]nefficiency, 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.



            Relator worked part time for Minnesota Care as a temporary certified nursing assistant at various nursing homes.  On March 15, 2005, relator signed an acknowledgement of Minnesota Care’s policy, which provided that she could be terminated for employment misconduct if (1) she failed to show up at one or more shifts or she cancelled one or more shifts that she had accepted; (2) she displayed a pattern of unexcused cancellations; (3) one or more of her clients refused to accept relator for work at their facilities; or (4) Minnesota Care was unable to reach her because she had no working message machine or phone line or failed to return messages or calls.

            On a number of occasions, Minnesota Care had difficulty contacting relator, either because her phone line or message machine did not work, or because she did not return the calls.  In addition, between September 19 and October 30, 2005, relator canceled shifts that she had accepted on 16 different dates.  Finally, due to her pattern of canceling shifts, two nursing homes notified Minnesota Care that they would no longer accept relator for assignments at their facilities.  Minnesota Care thereafter stopped scheduling relator and notified her in mid-November 2005 that she had been terminated.

            Relator first argues that while her employer was free to define misconduct on the part of its employees, its definition does not control whether relator is entitled to unemployment compensation benefits.  She insists that while Minnesota Care may have been justified in terminating her employment, she is not necessarily disqualified from receiving unemployment benefits.

            While relator is correct, her behavior still falls under the statutory definition of misconduct.  An employer has a right to expect that employees will work when scheduled and 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); Little v. Larson Bus Serv., 352 N.W.2d 813, 815 (Minn. App. 1984).  Relator’s repeated infractions of her employer’s work rules constitutes misconduct because her behavior “displays clearly” either “a serious violation of the standards of behavior the employer has the right to reasonably expect” or “a substantial lack of concern for the employment.”  Minn. Stat. § 268.095, subd. 6(a).

            Relator next argues that because the ULJ did not discredit the reasons she gave for missing or canceling her scheduled work shifts, those reasons must be accepted as true reasons for her absences.  Again, relator is only partially correct.  As the department reasons, “it is not critical to know whether it was car trouble or illness that caused the particular final absence, or what the precise ratio was to car-trouble absences as opposed to absences due to illness.”  Because relator’s absences were “chronic and excessive,” her actions clearly displayed a lack of concern for her job and thus constituted employment misconduct.  See Jones v. Rosemount, 361 N.W.2d 118, 120 (Minn. App. 1985).

            Relator finally argues that the ULJ erred in concluding that her reasons for missing work constituted employment misconduct.  Relator insists that because her illnesses and car troubles were beyond her control, they cannot form the basis for misconduct.  Relator notes that her decision to not work with and around elderly people in nursing homes while she had a contagious illness was entirely reasonable.  She further notes that her car trouble and difficulties with transportation were the result of her poverty and were beyond her control.

            The issue, however, is not whether relator’s reasons for missing work were beyond her control, but whether her continuing and repeated cancellations of scheduled shifts, whether due to illness or car troubles, displayed clearly a lack of concern for her employment.  Even if not deliberate or willful, chronic and excessive absenteeism may demonstrate a sufficient lack of concern for the employment.  Jones, 361 N.W.2d at 120;  see also McLean v. Plastics, Inc., 378 N.W.2d 104, 107 (Minn. App. 1985) (holding that excessive tardiness constituted misconduct when employee was tardy 13 times in a year and had received two warnings); Flahave v. Lang Meat Packing, 343 N.W.2d 683, 686 (Minn. App. 1984) (repeated infractions of employer’s work rule regarding absences demonstrate substantial disregard of employer’s interest and of duties and obligations owed to employer, even though employee had no control over cause of final absence).  And while relator claims that some of her absences were caused by “poverty” because she could not afford to repair her car, insufficient evidence was offered on this point.

            We therefore affirm the decision of the ULJ that relator’s actions constituted employment misconduct.