Filed January 3, 2006

Affirmed

Crippen, Judge*

Department of Employment and Economic Development

Agency File No. 1567 05

Muriel M. Jackson, 1532 Elrose Court, Apt. #202, South St. Paul, MN 55075 (pro se relator)

SCIS Air Security Corp., TALX UCM Services Inc., P.O. Box 283, St. Louis, MO 63166 (respondent)

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

Considered and decided by Halbrooks, Presiding Judge, Klaphake, Judge, and Crippen, Judge.

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

CRIPPEN, Judge

Relator challenges the decision of the senior unemployment review judge that she was disqualified from receiving unemployment benefits, claiming that the final incident of calling in sick only a few minutes before her shift did not constitute misconduct. Because the record contains evidence reasonably tending to support the review judge’s findings of misconduct in a course of attendance problems and a final incident before termination, we affirm.

FACTS

Relator Muriel Jackson began employment at respondent SCIS Air Security Corp. as an airline security coordinator in April 2004. She was discharged eight months later and applied for unemployment benefits. The unemployment law judge and review judge independently determined that relator was disqualified for employment misconduct.

D E C I S I O N

The factual findings of the review judge are “viewed in the light most favorable to the decision, and if there is evidence reasonably tending to sustain them, they will not be disturbed.” White v. Metro. Med. Ctr., 332 N.W.2d 25, 26 (Minn. 1983). On questions of law, we are not bound by the review judge’s conclusions but exercise our own independent judgment. Markel v. City of Circle Pines, 479 N.W.2d 382, 384 (Minn. 1992). Whether an employee committed a specific act is a question of fact, but whether specific acts constitute misconduct is a question of law, which we review de novo. Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).

Employment misconduct includes “intentional, negligent, or indifferent conduct” that violates reasonably expected standards of behavior or shows clearly a “substantial lack of concern for the employment.” Minn. Stat. § 268.095, subd. 6(a) (2004). Even if not willful or deliberate, a pattern of chronic and excessive absenteeism and tardiness may constitute misconduct. Jones v. Rosemount Inc., 361 N.W.2d 118, 120 (Minn. App. 1985). The critical factor is whether the failure to report was caused by the employee’s behavior or was beyond the employee’s control. Winkler v. Park Refuse Serv., Inc., 361 N.W.2d 120, 124 (Minn. App. 1985).

Relator disputes neither her employer’s records that show her absences from and late appearances at work nor her receipt of three written warnings on this conduct. She stated at the hearing that the majority of the time she had overslept. The review judge found that relator was late six times before her first warning; four times before the second warning; three times before the third warning; and four times before the final warning and termination. The written policy allowed employees a five minute grace period before they would be considered tardy, and relator’s late appearances ranged from six minutes to 71 minutes. Each of her first three warnings included notice that she would be subject to further discipline if there were further incidents. The third warning, in September 2004, included notice that her employment could be terminated for further violations. Relator was again tardy twice in October and twice in November.

There is an ample basis in the record to conclude that relator’s conduct clearly displayed both an offense of reasonable attendance standards and a substantial lack of concern for her employment. Relator’s course of tardiness supports a determination of disqualifying misconduct, and her argument on appeal, dwelling on the final incident before her termination in December 2004, has little effect on the result of the case. On the occasion of the final incident, relator phoned in sick four minutes before her shift began.

The record reflects and the review judge found that the employer had a sick leave call-in requirement of two hours before the beginning of the employee’s shift. Relator testified that she was aware of the two-hour requirement, that it was not enforced, that a supervisor had amended the policy, and that she believed four minutes was acceptable notice under these circumstances. The record does not support relator’s claim that the policy had been amended. Furthermore, relator provided no evidence of an emergency or other explanation of her late call, and the record permits an inference that she simply failed to wake early enough to give the employer reasonable notice that she would be absent. The review judge properly found that relator’s interpretation of the employer’s call-in policy lacked credibility.

Relator argues that she was actually terminated for inquiring about overtime opportunities. Because there was ample evidence that the employer terminated relator’s employment due to her previous attendance issues and steps of discipline, there is no occasion to examine alternative bases for her discharge.

Affirmed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI § 10.