Cecilia Shaw, Relator v. First Advantage Background Services, Department of Employment and Economic Development

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA
IN COURT OF APPEALS
A15-1585

Cecilia Shaw,
Relator,

vs.

First Advantage Background Services,
Respondent,

Department of Employment and Economic Development,
Respondent.

Filed May 23, 2016
Affirmed
Reilly, Judge

Department of Employment and Economic Development
File No. 337701163-3

Cecilia Shaw, Elk River, Minnesota (pro se relator)

First Advantage Background Services, Tampa, Florida (respondent)

Lee B. Nelson, Department of Employment and Economic Development, St. Paul,
Minnesota (for respondent Department of Employment and Economic Development)

Considered and decided by Reilly, Presiding Judge; Connolly, Judge; and Stauber,

Judge.
 UNPUBLISHED OPINION

REILLY, Judge

Relator argues the unemployment-law judge (ULJ) erred when it determined she

was ineligible to receive unemployment benefits because the decision was not supported

by substantial evidence. Because relator’s uncontradicted testimony provided substantial

evidence to support the ULJ’s decision, we affirm.

FACTS

Relator Cecilia Shaw worked for First Advantage Background Services (FABS) as

a software support analyst. In summer 2014 she was authorized to work from home;

however, the arrangement changed in January 2015 when she was informed that she needed

to work in the office from 8 a.m. to 5 p.m. Relator and FABS then agreed upon an

arrangement where relator would work in the office Monday through Thursday and

telecommute on Fridays. In February 2015, FABS warned relator that if her attendance

and commitment to a regular work schedule did not improve she would be discharged from

employment. According to her own testimony, relator continued to arrive at work as much

as two hours late at least two days a week and left work early at least one day a week. Her

reasons included dropping off and picking up her 17-year-old son from school, going to

court, going to the doctor, doing repairs on her home, and staying home for the repair

person. However, she testified that “90 percent of the reason[] why” she worked from

home and arrived late was due to her desire to avoid traffic.

In April 2015, FABS again warned relator that if her attendance did not improve

she would be terminated. She continued to arrive late, leave early, and work from home

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on days when she was required to work in the office through June 2015. FABS discharged

her from employment on June 30, 2015.

Relator applied for unemployment benefits and was determined to be ineligible

because she “was discharged for attendance and schedule consistency” issues, and admitted

that she was “warned multiple times” that she needed to improve her attendance. Relator

appealed the determination and an evidentiary hearing was held. Relator was the sole

participant at the hearing. The ULJ concluded that relator’s

conduct and actions in continuing to be tardy to work and leave
work early, after being warned about the need for her to
maintain a regular in-office work schedule, displayed clearly a
serious disregard of [FABS’s] interest and of standards of
behavior they had a right to expect of [relator] as an employee
so as to constitute employment misconduct.

The ULJ determined that relator was ineligible to receive unemployment benefits. Relator

filed a request for reconsideration, and the ULJ affirmed its decision. This certiorari appeal

follows.

DECISION

Relator argues the ULJ erred as a matter of law because its determination that she

committed disqualifying misconduct was based solely on relator’s testimony and is not

supported by any substantial evidence. We review a ULJ’s order to determine whether it

is “(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) (Supp. 2015).

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 Relator argues that the ULJ erred as a matter of law because the decision was based

solely on relator’s testimony and she was “clearly participating in the hearing under severe

emotional and physical distress,” which we construe as an argument that the decision was

made “upon unlawful procedure.” Minn. Stat. § 268.105, subd. 7(d)(3). Relator appears

to assume that FABS was required to participate in the hearing. However:

An application for unemployment benefits is not
considered a claim against an employer but is considered a
request for unemployment benefits from the trust fund. The
commissioner has the responsibility for the proper payment of
unemployment benefits regardless of the level of interest or
participation by an applicant or an employer in any
determination or appeal. An applicant’s entitlement to
unemployment benefits must be determined based upon that
information available without regard to a burden of proof.

Minn. Stat. § 268.069, subd. 2 (2014).

Thus, the ULJ was required to make a determination based on the information

available to it, regardless of FABS’s failure to participate in the hearing. See Haugen v.

Superior Dev., Inc., 819 N.W.2d 715, 722 (Minn. App. 2012) (“[T]he statute is not meant

to benefit employers specifically. Although employers fund the unemployment insurance

program . . . an employer does not pay unemployment benefits directly and a former

employee’s application for benefits is not a claim against an employer.”) (citing Minn. Stat.

§ 268.069, subd. 2 (2010)). There is no requirement that an employer participate in the

hearing. And although relator asserts she was “clearly” participating in the hearing under

severe emotional and physical distress, she provides no support for this assertion. Our

independent review of the hearing does not reveal indicia that relator was under distress

such that we can conclude that the procedure was unlawful.

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 Relator also argues the ULJ’s decision was “not supported by any substantial

evidence.” Whether an employee engaged in conduct that disqualifies the employee from

unemployment benefits is a mixed question of fact and law. Colburn v. Pine Portage

Madden Bros., Inc., 346 N.W.2d 159, 161 (Minn. 1984). We review findings of fact in the

light most favorable to the ULJ’s decision. Skarhus v. Davanni’s Inc., 721 N.W.2d 340,

344 (Minn. App. 2006). The ULJ’s determination was based on relator’s uncontradicted

testimony. We note that relator does not allege the factual findings misconstrue her

uncontradicted testimony.

Whether a particular act constitutes disqualifying misconduct is a question of law,

which this court reviews de novo. Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d

519, 523 (Minn. 1989). Employment misconduct is defined as “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; or . . . a substantial lack of concern for the employment.” Minn. Stat. § 268.095,

subd. 6(a) (2014).

Despite two warnings that her employment was in jeopardy due to her absenteeism,

relator continued to show up to work late, leave early, and work from home on days she

was required to work in the office. An “employer has a right to expect an employee to

work when scheduled.” Del Dee Foods, Inc. v. Miller, 390 N.W.2d 415, 417-18 (Minn.

App. 1986). An employer also 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). “[R]efusing to abide by an employer’s reasonable policies and requests amounts to

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disqualifying misconduct.” Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn.

2002). We conclude there is substantial evidence to support the ULJ’s determination that

relator was ineligible to receive unemployment benefits because she was terminated for

misconduct.

Affirmed.

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