This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-2575

 

Felix M. Williams,

Relator,

 

vs.

 

Old Chicago of Colorado, Inc.,

Respondent,

 

Department of Employment and Economic Development,

Respondent.

 

Filed August 22, 2006

Affirmed

Kalitowski, Judge

 

Department of Employment and Economic Development

File No. 1373405

 

Felix M. Williams, 520 Lindsey Lane, Belle Plaine, MN 56011-2169 (pro se relator)

 

Old Chicago of Colorado, Inc., c/o Employers Unity, Inc., P.O. Box 749000, Arvada, CO 80006-9000 (respondent)

 

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

 

            Considered and decided by Worke, Presiding Judge; Kalitowski, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Relator challenges the determination of the unemployment law judge that he was discharged for misconduct.  Because his chronic tardiness meets the statutory definition of misconduct, we affirm.

D E C I S I O N

            Relator Felix Williams worked as a kitchen manager for respondent Old Chicago of Colorado, Inc. for about eight months, from November 1, 2004, until his discharge on July 5, 2005.  He applied for unemployment benefits, and a department adjudicator determined that he had not been discharged for misconduct.  Respondent appealed.  After a telephone hearing, an unemployment law judge (ULJ) determined that relator had been discharged for misconduct.  Relator requested reconsideration, and the ULJ issued an order of affirmation.  Relator brings this certiorari appeal.

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, which 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.

            The ULJ found that “[relator] was late to work at least once a week during this employment.”  Relator testified that he was late “maybe four times a month.”  Thus, his testimony is evidence that tends to sustain the finding.  The ULJ also found that, “About once every two weeks, [relator’s] supervisor . . . would warn [relator] that he must be at work on time.”  Relator’s supervisor, when asked how often he warned relator about his tardiness, testified that “[i]t depended on how late he was and the circumstances, but I would say every other week.”  Again, evidence sustains the finding.

“[C]ontinued tardiness, combined with several warnings, . . . is a violation of standards of behavior which the employer had a right to expect of its employees.”  Evenson v. Omnetic’s, 344 N.W. 2d 881, 883 (Minn. App. 1984).  Relator was continually tardy despite biweekly warnings:  he violated the standard of behavior that respondent had a right to expect.

            Relator testified that, on the day he was discharged, he called to say that he would be late because his child’s babysitter had a medical emergency with one of her own children.  The ULJ found that “[e]ven if this is true, [relator] was not discharged for this one instance of tardiness alone.”  Relator’s supervisor, when asked to recount “the chain of events that resulted in [relator’s] separation,” testified that “[relator] was, continued to be late for the job. . . . [H]e’d come in late and leave early. . . . They were continually having problems with the scheduling and where [relator] was and when he was supposed to be there. . . .”  This testimony supports the ULJ’s finding that relator was not discharged because of one instance of tardiness.

We conclude that the ULJ’s finding that “[respondent] discharged [relator] for a pattern of tardiness extending throughout his employment” is supported by the record and provides a basis for the conclusion that relator was discharged for misconduct.

Affirmed.