A06-788

Stephanie T. Eaton,

Relator,

vs.

Park and Recreation Board of Minneapolis,

Respondent,

Department of Employment and Economic Development,

Respondent

Filed March 27, 2007

Affirmed

Worke, Judge

Department of Employment and Economic Development

File No. 345 06

Stephanie T. Eaton, 1014 Irving Avenue North, Minneapolis, MN 55411 (pro se relator)

Ann E. Walther, Karin E. Peterson, Rice, Michels & Walther, LLP, 10 Second Street N.E., Suite 206, Minneapolis, MN 55413 (for respondent Park and Recreation Board of Minneapolis)

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

Considered and decided by Lansing, Presiding Judge; Peterson, Judge; and Worke, Judge.

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

WORKE, Judge

On certiorari appeal from the unemployment-law judge’s decision that relator was discharged for misconduct and, therefore, disqualified from receiving unemployment benefits, relator argues that the employer’s witnesses were not truthful and their testimony was contradictory, and that she had reasonable explanations for various incidents. We affirm.

D E C I S I O N

When reviewing the decision of an unemployment-law judge (ULJ), this court may affirm the decision, remand the case for further proceedings, or reverse or modify the decision if the substantial rights of the relator 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) (2006).

The ULJ determined that relator Stephanie T. Eaton was discharged for employment misconduct. Whether an employee committed employment misconduct is a mixed question of fact and law. Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002). Whether the employee committed a particular act is a question of fact. Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997). The ULJ’s factual findings are viewed in the light most favorable to the decision, Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996), and will not be disturbed when substantial evidence supports them. Minn. Stat. § 268.105, subd. 7(d)(5). Because credibility determinations are the exclusive province of the ULJ, they are accorded deference on appeal. Munro Holding, LLC v. Cook, 695 N.W.2d 379, 384 (Minn. App. 2005). Whether the act committed by the employee constitutes employment misconduct is a question of law, which we review de novo. Scheunemann, 562 N.W.2d at 34.

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.” Minn. Stat. § 268.095, subd. 6(a) (2004).

Witness Credibility

Relator first argues that the witnesses who testified on behalf of respondent Park and Recreation Board of Minneapolis (PRBM) were not truthful and provided contradictory testimony. “When witness credibility and conflicting evidence are at issue, we defer to the decision-maker’s ability to weigh the evidence and make those determinations.” Nichols v. Reliant Eng’g & Mfg., Inc., 720 N.W.2d 590, 594 (Minn. App. 2006). The ULJ found that relator’s testimony was contradictory and raised questions about her credibility. The ULJ also found that testimony and evidence supported the misconduct. Therefore, because the ULJ believed PRBM’s witnesses and disbelieved relator, this court will not substitute its credibility determinations, and relator’s argument that witnesses were not truthful is meritless.

Reasonable Explanations

Relator next argues that she did not engage in misconduct because she had reasonable explanations for the behavior that PRBM used to terminate her employment. The ULJ found that relator was terminated because of continued issues with her tardiness and absences, the accuracy of her timesheets, and her decision-making. The decision is supported by substantial evidence.

Attendance/Tardiness

Relator argues that she was not absent or tardy and that her supervisor, Al Bangoura, did not testify truthfully because she knew that he “misdirected funding,” and he terminated her to keep her quiet. But relator never raised this issue before the ULJ, and the ULJ found that Bangoura was credible and that relator was often late for work.

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); see also McLean v. Plastics, Inc., 378 N.W.2d 104, 107 (Minn. App. 1985) (holding that excessive tardiness or absenteeism that is unrelated to illness or injury demonstrates an employee’s disregard of an employer’s interests and constitutes misconduct); 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). Similarly, an employee’s failure to give proper notice of an absence may demonstrate a lack of concern for employment that constitutes disqualifying misconduct. Edwards v. Yellow Freight Sys., 342 N.W.2d 357, 359 (Minn. App. 1984); see also 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.”). This principle is particularly applicable when the employee has been previously warned. McLean, 378 N.W.2d at 107. But an employer is not required to give a warning before an employee can be terminated for employment misconduct. See Auger v. Gillette Co., 303 N.W.2d 255, 257 (Minn. 1981) (stating that a warning was not essential to demonstrate that employees acted in willful disregard of employer’s interest).

Here, relator’s scheduled hours were 4:00 p.m. to 9:00/9:30 p.m. Bangoura testified that he explained to relator that because she worked at the front desk, her attendance and punctuality were critical. Bangoura told relator that if she could not make it to work to call and someone could fill in for her. On August 15, relator was 30 minutes late for work and failed to call. On September 28, relator was 30 minutes late for work, but she did call. On September 30, relator was 15 minutes late for work and failed to call. On October 12 and 13, relator was 30 minutes late and failed to call. Relator explained to Bangoura that she was late because she was picking up her child from school. On October 17, Bangoura adjusted relator’s start time to 4:30 p.m. But relator was still late for work without calling three times between October 20 and 28. Although relator denied ever being late, she agreed that Bangoura adjusted her start time, but offers no explanation for this change in her schedule. Thus, it was reasonable for the ULJ to find that relator was late for work. Bangoura’s request for punctuality and consistent attendance was reasonable, especially when he attempted to accommodate relator’s schedule, and relator’s failure to follow this request displayed a violation of her employer’s standards of behavior and constituted misconduct.

Timesheets

Relator also argues that she simply made mistakes with her timesheet. Relator claims that no PRBM employee completed his or her timesheet as instructed. But a violation of an employer’s policies by others, or an employer’s selective enforcement of its rules, is not a defense to a charge of employment misconduct. Dean v. Allied Aviation Fueling Co., 381 N.W.2d 80, 83 (Minn. App. 1986); see also Sivertson v. Sims Sec., Inc., 390 N.W.2d 868, 871 (Minn. App. 1986) (holding that employer’s alleged selective enforcement of rules was not a defense to a finding of employee misconduct), review denied (Minn. Aug. 20, 1986).

Here, on two days that relator indicated on her timesheet that she worked, she should not have recorded working any hours because she had volunteered her time. Relator testified that she should not have recorded the hours on her timesheet, but explained that she forgot that she volunteered when she completed her timesheet. On two other days, relator did not work at all, but recorded working seven hours each day. Relator testified that she completed her timesheets in advance. But Bangoura testified that he repeatedly told employees to complete their timesheets daily and that he told relator that falsifying hours or not correcting timesheets was grounds for termination. Thus, even if relator is correct in stating that nobody followed the instructions to complete timesheets daily, that does not justify her actions. And the failure to correctly record her actual hours worked displays conduct that violates her employer’s standards of reasonable behavior and constitutes misconduct.

“Critical Decisions”

Finally, relator argues that although she made a mistake by leaving children at a water park, she has already been suspended for that incident. Bangoura testified that he considered the water-park incident when he decided to terminate relator’s employment. But Bangoura testified that in addition to the water-park incident, relator made other critical decisions that factored into his decision, such as relator leaving her desk and “just being gone” for 40 minutes to an hour.

A “single incident that does not have a significant adverse impact on the employer” is not employment misconduct. Minn. Stat. § 268.095, subd. 6(a); see, e.g., Pierce v. DiMa Corp., 721 N.W.2d 627, 630 (Minn. App. 2006) (holding that a single violation of employer’s cash-register policy that does not involve theft or mishandling money and has no adverse impact on employer is not employment misconduct); but cf. Skarhus v. Davanni’s Inc., 721 N.W.2d 340, 344 (Minn. App. 2006) (holding that a cashier’s single incident of theft from employer of items of minimal value has significant adverse impact on employer and constitutes employment misconduct because it undermines employer’s ability to assign essential job functions to employee). A single incident when an employee deliberately chooses a course of action adverse to the employer can constitute misconduct. Colburn v. Pine Portage Madden Bros., Inc., 346 N.W.2d 159, 161 (Minn. 1984). In determining whether an employee’s actions rise to the level of misconduct, this court considers whether the conduct adversely affected the business. See Auger, 303 N.W.2d at 257. If the employee’s conduct shows disregard for the interests of the employer, the employee may be disqualified from unemployment compensation. Id. Here, relator was supervising 20 children at a water park when she decided to put a 17-year-old assistant in charge and leave. The children got out of control, and the police were called. Relator was suspended for three days. Although relator testified that she was never told that she could not leave, Bangoura testified that she was instructed not to leave the children unsupervised. Thus, relator deliberately chose a course of action adverse to the employer that showed a disregard for the interests of her employer. This one incident constituted misconduct.

Additionally, Bangoura testified that even after he discussed with relator the importance of her being at her desk doing her job, relator would leave without permission for extended periods of time. For example, relator was permitted to go walking with the walking club, but she did not return with the club. A PRBM employee testified that relator was gone an additional 15-20 minutes after the walking club returned. Relator testified that she only left between 5:00 p.m. and 6:00 p.m. because the park closed during that hour and that she always returned with the walking club. But the ULJ did not find relator credible.

Relator was terminated after her employer had problems with her tardiness and absences, timesheet entries, and her failure to follow instructions. The ULJ did not err in determining that relator was terminated for misconduct and, therefore, disqualified from receiving unemployment benefits.

Affirmed.