Raymond J. Manning, Relator, vs. Taylor Corporation, Respondent, Commissioner of Economic Security, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-02-1762

 

Raymond J. Manning,

Relator,

 

vs.

 

Taylor Corporation,

Respondent,

 

Commissioner of Economic Security,

Respondent.

 

Filed May 27, 2003

Affirmed

Harten, Judge

 

Department of Economic Security

Agency File No. 8112-02

 

Raymond J. Manning, 7333 Clay Avenue East, Inver Grove, MN 55076 (relator pro se)

 

Taylor Corporation, Travel Tags/Xtreme Graphics, 5842 Carmen Avenue, Inver Grove Heights, Minnesota 55076-4413 (respondent)

 

Lee B. Nelson, M. Kate Chaffee, 390 North Robert Street, St. Paul, MN 55101 (for Department of Economic Security)

 

            Considered and decided by Harten, Presiding Judge, Stoneburner, Judge, and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

 

HARTEN, Judge

 

            Relator challenges the commissioner's representative's decision disqualifying him from receiving unemployment benefits because he was discharged for employment misconduct.  Because we conclude that relator's chronic absenteeism and tardiness constitute employment misconduct, we affirm.

FACTS

            Relator Raymond Manning worked as a screen maker for respondent Taylor Corporation, a printing company, from April 1998 to April 2002.  Respondent supplied its employees with a handbook, which provided that "[r]epeated tardiness or absence" and "[f]ailure to notify the appropriate supervisor, or next in charge, of absence before the scheduled start of shift" may be grounds for discharge.  Respondent also established a written standard detailing how it evaluated employee attendance.  Under the standard, an employee's attendance was considered below average if the employee was absent, on average, more than once every two months.  Relator acknowledged receipt of the handbook, and he testified that he was aware of the attendance standard.

Relator received written performance evaluations, which included an assessment of his attendance, about every six months.  In September 1999, March 2000, and October 2000, relator's evaluations indicated that his attendance was below average and needed improvement.  In February 2001, relator's supervisor issued a written notice of disciplinary action.  The notice provided that

[relator] has been absent 8.25 times in the time frame of 9/11/00 (start of current review period) to 2/6/01 (approx. 5 months), which results in an attendance rating of 1.65 absences/month.  Standard or acceptable attendance is 1/2 absence/month.

 

The notice warned that relator "must attain and hold standard or acceptable attendance" and that "[a]ny further violations * * * will result in further [d]isciplinary action up to and including termination."

On 31 October 2001, relator called respondent three hours after the scheduled start of his shift and reported that he would not be at work.  One week later, his supervisor issued a written notice of disciplinary action, warning that relator

must be sure to notify [his supervisor] or next in charge * * * if he will not be in to work before the start of his shift.  Failure to do so will result in further disciplinary action including possible termination.  [Relator] must also maintain at least average attendance for the remainder of this and his next review.  Failure to do so will result in further disciplinary action [i]ncluding possible termination.

 

Relator was tardy on 12 February 2002 and 9 April 2002; he did not call respondent before the scheduled start of his shift on either occasion.

On 10 April 2002, respondent issued a final notice of disciplinary action and discharged relator.  The notice contained an "employee's comments" section, where relator wrote that the chemicals he was exposed to on the job caused him "a lot of health problem[s]."

An adjudicator from the Department of Economic Security determined that relator was disqualified from receiving unemployment benefits because he was discharged for employment misconduct.  The unemployment law judge affirmed the determination.  On appeal, the commissioner's representative found that

[relator] had on-going troubles with attendance and tardiness.  He was given two formal warnings as well as several job evaluations which stated that these issues must be improved upon.  He was aware of the employer's policies and that he could be terminated if the situation was not remedied.  While illnesses will happen, excessive absences are unacceptable and the employer had the right to be informed before the start of [relator's] shift if he was going to be absent or late.

 

Accordingly, the commissioner's representative affirmed the determination of disqualification.  Relator, acting pro se, challenges the determination.

D E C I S I O N

            Decisions of the commissioner's representative are accorded particular deference.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  The commissioner's determination that an employee is disqualified for reasons of misconduct involves a mixed question of fact and law.  Colburn v. Pine Portage Madden Bros., 346 N.W.2d 159, 161 (Minn. 1984).  We review the commissioner's representative's factual findings in the light most favorable to the decision and will not disturb them if the record reasonably tends to sustain them.  Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996). 

An employee who was discharged for misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4(1) (2002).  Misconduct includes

            (1) any intentional conduct, on the job or off the job, that disregards the standards of behavior that an employer has the right to expect of the employee or disregards the employee's duties and obligations to the employer; or

 

            (2) negligent or indifferent conduct, on the job or off the job, that demonstrates a substantial lack of concern for the employment.

 

Id., subd. 6(a) (2002).  But misconduct does not include "absence because of illness or injury with proper notice to the employer."  Id., subd. 6(b).

            An employer has the right "to establish and enforce reasonable work rules relating to absenteeism."  Jones v. Rosemount, Inc., 361 N.W.2d 118, 120 (Minn. App. 1985) (citations omitted); see also Little v. Larson Bus Serv., 352 N.W.2d 813, 815 (Minn. App. 1984) (employer has right to expect employee to work when scheduled).  Even if not deliberate or willful, chronic and excessive absenteeism may demonstrate a lack of concern for the employment.  Jones, 361 N.W.2d at 120; see also McLean v. Plastics, Inc., 378 N.W.2d 104, 107 (Minn. App. 1985) (excessive tardiness constituted misconduct when employee was tardy 13 times in year and had received two warnings).

Relator does not challenge the commissioner's representative's factual findings but argues that his absenteeism resulted from a medical condition and that the chemicals he was exposed to at the workplace contributed to that condition.  Relator offered no evidence, however, that the chemicals caused his purported illness.  Moreover, relator was still obligated to provide proper notice to respondent.  Relator's supervisor testified that he first of learned relator's alleged condition on the date of discharge, and relator testified, "Had I known * * * these chemicals were affecting my health, I would have actually let the company know * * * ."  It is also undisputed that relator was tardy on three occasions without calling work before the start of his shift.

Relator's chronic absenteeism and tardiness demonstrate a substantial lack of concern for his employment.  Relator was aware of respondent's attendance policies and repeatedly warned that he risked termination if he continued to violate those policies.  Despite those warnings, relator's pattern of absenteeism and failure to properly notify respondent of his absence or tardiness persisted.  The commissioner's representative did not err in determining that relator was discharged for misconduct and disqualified from receiving unemployment benefits.

Affirmed.