Paul T. Czerniak, Relator, vs. ATK Ordnance & Ground Systems, LLC, Respondent, Department of Employment and Economic Development, Respondent.

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Paul T. Czerniak, Relator, vs. ATK Ordnance & Ground Systems, LLC, Respondent, Department of Employment and Economic Development, Respondent. A06-2221, Court of Appeals Unpublished Decision, December 18, 2007.

This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS
A06-2221


Paul T. Czerniak,
Relator,
 
vs.
 
ATK Ordnance & Ground Systems, LLC,
Respondent,
 
Department of Employment and Economic Development,
Respondent.

 

 

Filed December 18, 2007

Affirmed

Dietzen , Judge

 

Department of Employment and Economic Development

Agency File No. 1121506

 

Paul T. Czerniak, 9307 Knighton Road, Woodbury, MN 55125 (pro se relator)

 

Lee B. Nelson, Department of Employment and Economic Development, E200 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101-1351 (for respondent Department of Employment and Economic Development)

 

ATK Ordnance & Ground Systems, LLC, c/o ADP-UCM/The Frick Co., P.O. Box 66744, St. Louis MO 63166-6744 (respondent)    

 

            Considered and decided by Dietzen, Presiding Judge; Ross, Judge; and Harten, Judge.*

U N P U B L I S H E D   O P I N I O N

DIETZEN, Judge

            In this certiorari appeal, relator challenges the decision of the unemployment law judge (ULJ) that he was discharged for employment misconduct and, therefore, was disqualified from receiving benefits, arguing that his tardiness did not constitute misconduct.  Because the ULJ properly applied the law and did not abuse his discretion, we affirm.

FACTS

            Relator Paul Czerniak was employed by ATK Ordnance & Ground Systems, LLC (ATK) from June 2000 until his employment was terminated on June 19, 2006.  ATK is a defense contractor with a facility in the Twin Cities area.  Relator worked as a software engineer and reported to Bobbie Pyle, who was his immediate supervisor.  At the time of his termination, relator worked 10:00 a.m. to 6:00 p.m. five days per week.

            At the hearing, ATK presented testimony from Jackie Wiegand, an ATK representative, Patti Soule, director of human resources, and Bobbie Pyle, relator's supervisor.  They testified that relator was a salaried employee but was expected to work 40 hours per week.  Although the principal hours of operation for ATK were 9:00 a.m. to 3:00 p.m., relator was allowed to work from 10:00 a.m. to 6:00 p.m.

            Pyle testified that relator was terminated on June 19 because he was 20 minutes late for work and failed to inform his supervisor that he would be late.  Pyle testified that relator's tardiness had been a problem for many years, that he was warned that he needed to work consistent hours, and that his erratic start times made it difficult to assign him work.  In January 2006, he was assigned a work schedule of Monday through Friday from 10:00 a.m. to 6:00 p.m. to address these problems.

            In March 2006, ATK supervisors Steve Schneider and Pyle met with relator to discuss his hours of work and tardiness.  Relator was informed that he must call his supervisor if he was going to be late.  During the next four weeks, his supervisor noted that he arrived at his desk after 10:00 a.m. four times.  At the end of the month, his supervisors met with him to discuss the problem.  Over the next three weeks, he was late four times ranging from one minute to 25 minutes.  In April 2006, his supervisors informed him that he would be required to sign in every morning.  Over the next two months, relator was late five times ranging from one minute to 11 minutes.  In early June 2006, Pyle informed relator that he would no longer need to sign in, but that he needed to report for work by 10:00 a.m.  Later that month, relator was 15-20 minutes late but did not notify his supervisor, and he was terminated.

            Relator admitted that his supervisors Pyle and Maggie Bradshaw told him that he had to work consistent hours and that if he "returned to the erratic work schedule" of his past five years of employment, ATK would use that as grounds for dismissal.  Relator stated that he told Bradshaw on June 14 that he would call if he was going to be more than 30 minutes late, but that he would not call if he was late by 10-15 minutes.  According to relator, Bradshaw responded, "I think that's a very reasonable approach."  Bradshaw did not testify at the hearing.

            Following the hearing, the ULJ filed findings of fact and decision, determining that relator was discharged because of employment misconduct related to chronic and excessive tardiness.  After relator filed a request for reconsideration, the ULJ issued modified findings of fact and decision affirming his decision that relator was terminated for employment misconduct.  This certiorari appeal follows.

D E C I S I O N

            Relator argues that the ULJ erred in concluding that his tardiness constituted employee misconduct. On certiorari appeal, this court may affirm the ULJ's decision, remand it for further proceedings, or reverse or modify it if the relator's substantial rights "may have been prejudiced because the findings, inferences, conclusion or decision are . . . affected by . . . error of law" or "unsupported by substantial evidence in view of the entire record as submitted."  Minn. Stat. § 268.105, subd. 7(d) (2006).

            Whether an employee committed 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.  Skarhus v. Davanni's Inc., 721 N.W.2d 340, 344 (Minn. App. 2006).  Findings of fact are reviewed in the light most favorable to the ULJ's decision, and we give deference to the ULJ's determinations of credibility.  Id.  This court will not disturb the ULJ's factual findings when those findings are supported by substantial evidence.  Id.; Minn. Stat. § 268.105, subd. 7(d)(5).  But whether an act by the employee constitutes disqualifying misconduct is a question of law, which we review de novo.  Schmidgall, 644 N.W.2d at 804.

            An employee who was discharged for misconduct is disqualified from receiving employment benefits.  Minn. Stat. § 268.095, subd. 4 (2006).  "Employment misconduct" means:

[A]ny 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.

 

            Inefficiency, inadvertence, simple unsatisfactory conduct, a single incident that does not have a significant adverse impact on the employer, conduct an average reasonable employee would have engaged in under the circumstances, poor performance because of inability or incapacity, good faith errors in judgment if judgment was required, or absence because of illness or injury with proper notice to the employer, are not employment misconduct.

 

Minn. Stat. § 268.095, subd. 6(a) (2006). 

            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).  A knowing violation of these rules constitutes employment misconduct because it demonstrates a substantial lack of concern for the employer's interests.  Schmidgall, 644 N.W.2d at 804.  Even if not deliberate or willful, chronic and excessive tardiness may demonstrate a lack of concern for the employment and thus constitute employment misconduct.  Rosemount, 361 N.W.2d at 120; Evenson v. Omnetic's, 344 N.W.2d 881, 883 (Minn. App. 1984) (holding that repeated tardiness, particularly when accompanied by employer's warnings, is employment misconduct for purposes of unemployment benefits). 

The ULJ found that ATK required relator to be at work by 10:00 a.m., that the requirement was reasonable, and that relator's tardiness was chronic, excessive, and based on factors within his control.  Initially, relator argues that that he was not given notice regarding the consequences for tardiness.  The ULJ credited Pyle's testimony that relator had been warned that ATK expected him to be at work for his 10:00 a.m. start time and that he could be terminated for failure to comply.  We see no abuse of discretion.  See Ywswf v. Teleplan Wireless Servs., Inc., 726 N.W.2d 525, 531 (Minn. App. 2007) (deference is given to the ULJ's credibility determinations). 

            Relator next argues that Bradshaw orally approved his approach that he was not required to call in if he was going to be 10-15 minutes late.  ATK argued that relator's testimony was not credible and relied on the testimony of his direct supervisor that relator was obligated to call if he was going to be late.  The ULJ did not resolve the credibility issue, but rather concluded that "[i]n any event, [relator] was 15 to 20 minutes late [on June 19,]" that an employer "has the right to expect its employees to report for work on time," and that relator's termination was a result of his chronic and excessive tardiness.  We agree.

             


 

            Here, the ULJ found that relator was warned about his tardiness and that tardiness could be grounds for dismissal.  Thus, the ULJ's determination that relator was discharged for employment misconduct is supported by substantial evidence in the record as a whole.

            Affirmed.


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