A05-254

John C. Lindberg,

Relator,

vs.

Office Depot Inc.,

Respondent,

Department of Employment

and Economic Development,

Respondent.

Filed December 27, 2005

Affirmed

Hudson, Judge

Department of Employment

and Economic Development

File No. 16394 04

John C. Lindberg, 5413 Quebec Avenue North, New Hope, Minnesota 55428 (pro se relator)

Office Depot Inc., Minneapolis Location, c/o TALX UCM Services, Inc., P.O. Box 283, St. Louis, Missouri 63166-0283 (respondent)

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

Considered and decided by Lansing, Presiding Judge; Shumaker, Judge; and Hudson, Judge.

U N P U B L I S H E D O P I N I O N

HUDSON, Judge

On certiorari appeal from the decision by the senior unemployment review judge adopting the findings of the unemployment law judge that relator was disqualified from unemployment benefits because he had been discharged for employment misconduct, relator argues that his termination for excessive tardiness was not based on misconduct because his tardiness was attributable to his disability. Because the record does not reflect that relator’s tardiness was attributable to his illness, we affirm.

FACTS

Relator John Lindberg worked full time for Office Depot from November, 1990 until August 31, 2004. At the time of his discharge, Lindberg was a customer service manager and supervised the cash register staff. During the last year of his employment, Lindberg repeatedly arrived at work late. Although his scheduled starting time was 8:00 a.m., Lindberg would often arrive at work between 8:15 and 8:45 a.m. Between June and August of 2004, Lindberg was late to work 33 times. Lindberg received repeated warnings that his tardiness was not condoned, but Lindberg continued to be late for work.

Lindberg suffers from depression. His disease makes it difficult for him to wake up in the morning. Lindberg informed his supervisor that he was taking medication, but he did not provide any documentation from his doctor. On days when Lindberg was tardy, he often told his supervisor that he did not hear his alarm, or he failed to provide a reason for his absence. Lindberg is currently able to work despite his depression.

After Office Depot terminated his employment, Lindberg established a benefit account with the Minnesota Department of Employment and Economic Development (the department). In October 2004, the department disqualified Lindberg from receiving unemployment benefits because Office Depot terminated Lindberg for employment misconduct. Lindberg appealed. In November 2004, following a telephone hearing, the unemployment law judge (ULJ) affirmed the initial determination. Lindberg appealed that decision, and in January 2005, the senior unemployment review judge (SURJ) adopted the ULJ’s findings of fact and decision as the final findings of the department pursuant to Minn. Stat. § 268.105, subd. 2a(a) (2004). This appeal follows.

D E C I S I O N

On certiorari appeal, we review the decision of the SURJ, not that of the ULJ, and give special deference to the SURJ’s decision. Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995). The determination of whether an employee committed a specific act of misconduct is a question of fact. Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997). We review findings of fact made by the SURJ in the light most favorable to the decision and will not reverse such findings if they are reasonably supported by the record. Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996). But whether a specific act or acts constitute misconduct is a question of law, which we review de novo. Id.

An employee discharged for employment misconduct is disqualified from receiving unemployment benefits. Minn. Stat. § 268.095, subd. 4(1) (2004). Employment misconduct is “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.” Id., subd. 6(a) (2004). The SURJ determined, and Lindberg concedes, that the reason for Lindberg’s discharge was excessive tardiness. The only issue before this court is whether Lindberg’s actions constitute misconduct.

An employer has a right to expect that employees will work when scheduled. Little v. Larson Bus Serv., 352 N.W.2d 813, 815 (Minn. App. 1984). Even if not deliberate or willful, chronic and excessive absenteeism may demonstrate a sufficient lack of concern for the employment. 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) (holding that excessive tardiness constituted misconduct when employee was tardy 13 times in a year and had received two warnings). The SURJ found, and the record reflects, that Lindberg was 15–45 minutes late for his scheduled shift 33 times in the last three months of his employment. Given that Lindberg was in a supervisory position and was therefore required to set an example for employees under his supervision, it appears that the SURJ did not err in concluding that Lindberg’s extensive history of tardiness constituted misconduct.

Lindberg argues that his tardiness did not constitute misconduct because his tardiness was unintentional and attributable to his depression. The statute excludes from the definition of misconduct “absence because of illness or injury with proper notice to the employer.” Minn. Stat § 268.095, subd. 6(a) (emphasis added). The record reflects that Office Depot knew that Lindberg suffered from depression. But there is no record evidence indicating that the chronic nature of Lindberg’s tardiness was linked to his medical condition. Lindberg testified that his depression did not make him unable to work. And, Lindberg was consistently able to get to work by 8:30, suggesting that Lindberg would be capable of consistently making it to work on time if he set his alarm earlier. When asked why it was impossible to get to work by 8:00 when he was able to get into work at 8:30, Lindberg testified that he had no explanation. Because Lindberg has not demonstrated that his tardiness was “because of” his illness, his tardiness constitutes, at a minimum, indifferent conduct that demonstrates a substantial lack of concern for employment.

Lindberg also argues that his tardiness was related to Office Depot’s failure to reasonably accommodate his disability as required by the Minnesota Human Rights Act, Minn. Stat. § 363A.08, subd. 6 (2004). But the record reflects that Lindberg did not provide Office Depot with a substantiated medical explanation for his tardiness. Accordingly, Lindberg’s claim fails under Minn. Stat. § 268.095, subd. 6a(a) (2004) (stating that employment misconduct does not include absence because of illness or injury without proper notice to the employer).

Lastly, Lindberg requests that this court review the additional information submitted with his brief including a portion of the Diagnostic and Statistical Manual of Mental Disorders, and portions of his medical records. These documents were not part of the record before the unemployment law judge and are therefore not properly before this court. See Minn. R. Civ. App. P. 110.01 (stating that the record consists of “[t]he papers filed in the trial court, the exhibits, and the transcript of the proceedings”); Minn. R. Civ. App. P. 115.04, subd. 1 (applying rule 110 to certiorari appeals).

Affirmed.