This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-2493

 

Effie Patterson,

Relator,

 

vs.

 

Edgewood Management Inc.,

Respondent,

 

Department of Employment and Economic Development,

Respondent.

 

Filed January 30, 2007

Affirmed

Halbrooks, Judge

 

 

Department of Employment and Economic Development

File No. 13221 05

 

 

Effie L. Patterson, 5365 Greystone Drive, Apartment 107, Inver Grove Heights, MN 55077 (pro se relator)

 

Edgewood Management Inc., Attn: Katy Langevin, 7012 Lake Road, Woodbury, MN 55125 (respondent)

 

Lee B. Nelson, Linda A. Holmes, Department of Employment and Economic Development, E200 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101 (for respondent department)

 

 

 

            Considered and decided by Halbrooks, Presiding Judge; Randall, Judge; and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

Relator challenges the unemployment-law judge’s (ULJ) determination that she is disqualified from receiving unemployment benefits due to employee misconduct.  Because we conclude that the ULJ properly applied the law and that the ULJ’s determination is supported by substantial evidence in the record, we affirm.

FACTS

From October 2003 through June 2005, relator Effie L. Patterson worked part-time as a nursing assistant for respondent Edgewood Management, a long-term health-care facility and nursing home.  Relator frequently worked double or overnight shifts; her total hours varied.

Edgewood’s written attendance policy was based on a point system.  All employees started with a set point balance.  Points were then added or deducted according to the rules.  Unplanned absences, tardiness, or early departures resulted in point deductions.  But no points were deducted for occurrences such as Family Medical Leave Act time or planned absences that were requested in writing and approved by management two weeks prior to the absence.  Points were added for each pay period in which an employee worked all of the scheduled hours. 

Management tracked each employee’s point total each pay period and had discretion to waive point deductions.  An employee received an oral warning when her point balance reached four points or less and a written warning if the point balance reached two points or less.  Employees were involuntarily terminated when their point balance reached zero.

Employees could also be terminated for failing to report an absence.  In general, all absences had to be reported at least two hours prior to a shift.  If an employee was absent and did not report the absence, the employee was deemed a “No Call/No Show” and was considered to have voluntarily resigned, regardless of her point total.  While an employee could submit a written request to management for a “variance” excusing a “No Call/No Show,” the request had to be submitted within 24 hours and was granted at management’s discretion.

Relator had over 30 attendance occurrences during her 1 1/2 years of employment with Edgewood.  In late July 2004, relator received an oral warning because her point balance reached three points.  On May 24, 2005, she received a written warning because her point balance was one point.  Relator earned a point back during the next pay period, bringing her balance up to two.  But she then had unplanned absences on June 21 and 22, 2005.[1]  Although she called in both days, two points were subtracted from her balance, bringing it to zero.  On June 23, 2005, relator was a “No Call/No Show.” 

Relator was discharged because her attendance point total had reached zero.  Following her discharge, relator applied for and was denied unemployment benefits on the ground that she was discharged for misconduct.  She appealed to the ULJ, who held a de novo review.  The ULJ heard testimony from relator and from Katy Langevin, the human-resources director at Edgewood. 

Langevin testified that relator called in to report her absences for personal reasons on June 21 and 22 and that relator called again on June 22 to confirm that she was scheduled for a double shift on June 23, 2005.  But Langevin testified that relator was a No Call/No Show on June 23.  Langevin stated that on June 23, management left a voice-mail message at relator’s residence more than one hour after her shift began, and a male later returned the call to say that relator would be absent.

In contrast, relator testified that she did call in on June 23.  Relator also testified that her absences on June 21 through June 23 were caused by her recent discovery of disturbing information regarding a family member.  She acknowledged that she did not disclose this information to Edgewood. 

Following the hearing, the ULJ determined that relator was “discharged from her employment due to tardiness and absenteeism pursuant to Edgewood’s attendance policy.”  The ULJ made the following factual findings:

The evidence shows that some of [relator’s] absences were due to personal and family illness.  However, some of them were due to other reasons.  In addition, she was also tardy on a number of occasions.  She received warnings and notices concerning her tardiness and absenteeism and the loss of attendance points.  At the end of her employment, she was absent from work for three days for reasons other than illness.

 

We further conclude that on June 23, 2005 she did not call in that day.  We find persuasive the testimony and evidence submitted by Edgewood showing that a representative of Edgewood called [relator’s] home on June 23, 2005 and left a message after [relator] had not reported for work as scheduled and later a man called Edgewood to report that [relator] would not be at work. 

 

As a result, the ULJ concluded that relator “engaged in intentional, negligent, or indifferent conduct that displays clearly a serious violation of the standards of behavior the employer had the right to reasonably expect of the employee or that display clearly a substantial lack of concern for the employment” and that relator was discharged due to tardiness and absenteeism pursuant to Edgewood’s attendance policy.  When relator sought reconsideration, the ULJ affirmed. 

This certiorari appeal follows.

D E C I S I O N

Relator brings this certiorari appeal to challenge the ULJ’s decision that she is disqualified from receiving unemployment benefits because of employee misconduct.[2] On review of the ULJ’s decision, this court may affirm, remand for further proceedings, reverse, or modify the decision.  Minn. Stat. § 268.105, subd. 7(d) (2006) (setting out standard of review for ULJ decisions issued on or after June 25, 2005).  Reversal or modification is appropriate

if the substantial rights of the petitioner may 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.

 

Id.  Whether an employee engaged in conduct that disqualifies her from unemployment benefits is a mixed question of fact and law.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).

Determining whether an employee actually committed specific acts alleged to be misconduct is a question of fact.  Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  In unemployment cases, we review the ULJ’s factual findings in the light most favorable to the ULJ’s decision, and we will not disturb those findings if there is evidence reasonably tending to sustain them.  Schmidgall, 644 N.W.2d at 804; White v. Metro. Med. Ctr., 332 N.W.2d 25, 26 (Minn. 1983). 

The determination of whether employee conduct constitutes employee misconduct is a question of law that this court reviews de novo.  Schmidgall, 644 N.W.2d at 804; Ress v. Abbott Nw. Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).  Employee 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) that displays clearly a substantial lack of concern for the employment.”  Minn. Stat. § 268.095, subd. 6(a) (2004).[3]

Here, the ULJ determined that relator was discharged for employee misconduct “due to tardiness and absenteeism” that violated Edgewood’s attendance policy.  An employer 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).  Both tardiness and absenteeism 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).  Therefore, as a matter of law, tardiness and absenteeism can constitute employee misconduct.

But relator argues that her behavior did not rise to the level of employee misconduct for the following reasons: (1) her attendance points were incorrectly calculated; (2) management should have waived some absence points due to illness and extenuating circumstances; (3) contrary to policy, management did not inform her that she was getting close to termination based on her low point total; and (4) the evidence shows that she did call in to report her absence on June 23, 2005.

The record ultimately showed that relator had more than 30 attendance occurrences.  Furthermore, an examination of the balance sheet shows that any errors appear to be in relator’s favor.  For example, during the period between January 26, 2004, and February 8, 2004, relator should have had six points subtracted but only three were actually subtracted.  During the period between February 9, 2004, and February 22, 2004, relator left early once, came in late once, and failed to punch out twice.  Therefore, as many as three points could have been deducted during that period.  Instead, one point was added.  Relator conceded that if her points had been subtracted in full, she would have been terminated in May 2005.

Relator contends that, contrary to policy, management did not inform her that she was getting close to termination due to poor attendance.  But the ULJ found that relator received warnings and notices when her points were low.  Langevin testified that employees were responsible for the day-to-day management of their own points.  And relator conceded that, as of May 24, she knew she had one point and was in danger of being terminated.

Relator argues that the evidence presented establishes that she called in to report her absence on June 23.  But Langevin testified that the supervisor that was on call that morning never received such a call.  Langevin also stated that “the staffing coordinator has this in writing, it says, [relator] wasn’t here at 6 a.m., I called her phone at 7 a.m., left a message, [and I received] a return call from a man stating she wouldn’t be in today, [at] 7:30 a.m.”

When parties present conflicting evidence, we defer to the ULJ’s ability to weigh the evidence.  Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995).  Here, the ULJ considered the conflicting testimony and determined that relator was “a no-call/no-show on June 23, 2005 . . . .”  Because the ULJ’s determination that relator was discharged for misconduct is sustained by substantial evidence in the record, we affirm.

            Affirmed.