                           This opinion will be unpublished and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
                                      A15-0609

                                     Lucille O’Quinn,
                                         Relator,

                                            vs.

                               Noodles & Company (Corp.),
                                       Respondent,

                 Department of Employment and Economic Development,
                                     Respondent.

                                  Filed January 25, 2016
                                         Affirmed
                                      Peterson, Judge

                  Department of Employment and Economic Development
                                  File No. 33081639-3

Laura Melnick, Charles H. Thomas, Law Offices of Southern Minnesota Regional Legal
Services, Inc., St. Paul, Minnesota (for relator)

Noodles & Company (Corp.), Barnett Associates, Inc., Garden City, New York
(respondent)

Lee B. Nelson, Anne B. Froelich, Tim Schepers, Department of Employment and
Economic Development, St. Paul, Minnesota (for respondent department)

         Considered and decided by Peterson, Presiding Judge; Halbrooks, Judge; and Reyes,

Judge.
                       UNPUBLISHED OPINION

PETERSON, Judge

      Relator challenges the decision by an unemployment-law judge (ULJ) that she is

ineligible to receive unemployment benefits because she was discharged from employment

due to employment misconduct. Because relator’s failure to comply with her employer’s

employee-absence policy constituted employment misconduct, we affirm.

                                       FACTS

      Relator Lucille O’Quinn worked for respondent Noodles & Company (Corp.) as a

cook at a restaurant from June 2013 until she was discharged from employment on

November 19, 2014. O’Quinn was late to clock in for her scheduled shifts several times

from October 2014 to the date of discharge. On November 17, 2014, O’Quinn called the

restaurant, spoke with general manager Rory Case, and explained that she was sick and

would be out of work for a few days. Case told O’Quinn that she would need to produce

a doctor’s note, and O’Quinn agreed to do so. Case also told O’Quinn that she would need

to find someone to cover her missed shifts. O’Quinn did not make any effort to find

coverage for her missed shifts or report to work on November 17, 18, or 19, and she was

discharged from employment.

      O’Quinn applied for unemployment benefits, and respondent Minnesota

Department of Employment and Economic Development (DEED) determined that

O’Quinn was ineligible to receive benefits because she was discharged for employment

misconduct. O’Quinn appealed the denial of unemployment benefits. At an evidentiary

hearing before a ULJ, Case testified that he spoke with O’Quinn on the telephone on


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November 17, and while he was explaining to O’Quinn Noodles’ policy that she would

need to find someone to cover her missed shifts, she hung up on him. Case testified that

finding shift coverage involves calling other employees, Noodles maintains a list of

employee telephone numbers that can be given out for the purpose of finding shift

coverage, Noodles will help with calling employees if needed, and an employee is not

required to physically appear at the restaurant to arrange shift coverage. Case testified that

O’Quinn never “ask[ed] [him] about any of this.” Case also testified about O’Quinn’s

repeated tardiness when clocking in for her scheduled shifts. He testified that area manager

Chris Peterson decided to discharge O’Quinn due to “two no call/no shows and previous

habitual tardiness.”

       Peterson testified that Noodles’ policy is that an employee who is absent due to

illness is expected to attempt to find shift coverage, that employee telephone numbers can

be given out for the purpose of finding shift coverage, and that an employee is not required

to physically appear at the restaurant to arrange shift coverage. Peterson testified that Case

made the decision to discharge O’Quinn “because of absences the week of November 17

. . . and because she had been late to work between October 1 and November 13.”

       O’Quinn testified that Case explained Noodles’ policy about finding shift coverage

when she spoke with him on November 17, and that she told him that “it’s impossible for

me to find somebody to work my shift because I’m too ill . . . to come up there [to the

restaurant] to . . . find somebody to work my shift.” O’Quinn testified that she believed

she was required to physically appear at the restaurant to look at the work schedule and a

list of employee telephone numbers in order to arrange shift coverage. She had arranged


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coverage for shifts in this way in the past. O’Quinn admitted that she did not ask Case for

employee telephone numbers. Regarding her tardiness when clocking in for her scheduled

shifts, O’Quinn testified that she always called when she was going to be late and that she

was told “don’t worry about it just as long as you make it here.” She testified that her

tardiness was “never . . . ma[d]e [to] seem like a big deal” and that she was “never wr[itten]

up” for being late.

       The ULJ determined that O’Quinn was ineligible to receive unemployment benefits

because she was discharged for employment misconduct. The ULJ stated that “O’Quinn’s

repeated tardiness and failure to make any effort to call a substitute worker was a serious

violation of the standards of behavior an employer has a right to reasonably expect.” The

ULJ affirmed the decision on reconsideration, and this certiorari appeal follows.

                                      DECISION

       “Whether an employee engaged in conduct that disqualifies the employee from

unemployment benefits is a mixed question of fact and law.” Icenhower v. Total Auto.,

Inc., 845 N.W.2d 849, 855 (Minn. App. 2014) (quotation omitted), review denied (Minn.

July 15, 2014). Whether an employee committed a particular act is a fact question. Id.

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

reviewed de novo. Id. This court reviews the ULJ’s factual findings in the light most

favorable to the decision and defers to the ULJ’s credibility determinations. Id. A ULJ’s

factual findings “will not be disturbed when the evidence substantially sustains them.”

Lawrence v. Ratzlaff Motor Express Inc., 785 N.W.2d 819, 822 (Minn. App. 2010), review

denied (Minn. Sept. 29, 2010).


                                              4
       An applicant for unemployment benefits who was discharged from employment

because of employment misconduct is ineligible to receive benefits. Minn. Stat. § 268.095,

subd. 4(1) (2014).      “Employment misconduct means any intentional, negligent, or

indifferent conduct, on the job or off the job that displays clearly: (1) a serious violation of

the standards of behavior the employer has the right to reasonably expect of the employee;

or (2) a substantial lack of concern for the employment.” Id., subd. 6(a) (2014). The

definition of employment misconduct does not include “simple unsatisfactory conduct,”

“conduct that was a consequence of the applicant’s inability or incapacity,” “good faith

errors in judgment if judgment was required,” or “absence because of illness or injury of

the applicant, with proper notice to the employer.” Id., subd. 6(b)(3), (5)-(7) (2014).

       “As a general rule, refusing to abide by an employer’s reasonable policies and

requests amounts to disqualifying misconduct.” Icenhower, 845 N.W.2d at 855 (quotation

omitted); see also Cunningham v. Wal-Mart Assocs., 809 N.W.2d 231, 235 (Minn. App.

2011) (stating that employers may “establish and enforce reasonable rules governing

employee absences,” a violation of which may constitute employment misconduct).

Noodles’ employee handbook contains a provision stating that an employee who will be

absent is “expected to make every effort to find another team member to cover [her] shift.”

Case attempted to explain this policy to O’Quinn when they spoke on the telephone on

November 17.

       The ULJ found that “O’Quinn did not ask for an explanation” of the employer’s

policy, “did not ask for help in calling people,” and “[i]nstead, . . . just did not do what her

employer asked.” The ULJ found:


                                               5
                     O’Quinn did not make any efforts to find a substitute
              worker. This was intentional. She did not forget to find a
              substitute. She did not accidentally fail to call. She made a
              conscious choice not to call any of her coworkers. She
              intentionally violated a request from her employer. The reason
              she intentionally violated this request was because of an
              unreasonable assumption.

                     O’Quinn’s unreasonable assumption does not excuse
              her conduct. If anything, O’Quinn’s unreasonable assumption
              shows negligence. She should have known better. She should
              have known that her employer would not require her to come
              into the restaurant in order to get a substitute worker.

       O’Quinn argues that her failure to make phone calls to get her shifts covered was

not an intentional refusal of an employer’s reasonable request; it was the result of her

incapacity. She contends that she was too ill to travel to work to call substitutes, and she

knew of no other way to meet the employer’s expectation. But the ULJ found:

                     O’Quinn also assumed that she was physically unable
              to carry out the employer’s request. This too is based on the
              mistaken assumption. The evidence is clear that O’Quinn was
              well enough to make a phone call. She called Case. O’Quinn
              was too sick to go to the restaurant. However, no one was
              asking her to go to the restaurant.

       The evidence substantially sustains the ULJ’s findings. The testimony of Case and

O’Quinn reflects that O’Quinn knew about Noodles’ policy, but she did not ask for

clarification of the policy or for help with calling other employees, and she did not make

any effort to find coverage for her missed shifts. O’Quinn’s conduct demonstrated

negligence because it was due to the unreasonable assumption that she needed to appear at

a restaurant while ill to call employees. See Dourney v. CMAK Corp., 796 N.W.2d 537,

540 (Minn. App. 2011) (discussing negligence in the context of section 268.095,



                                             6
subdivision 6(a), defining negligence as “the failure to use the care that a reasonable person

would use in the same or similar circumstances” and addressing inadvertence exception to

misconduct definition). O’Quinn’s failure to make any effort to find coverage for her

missed shifts displayed a serious violation of a standard of behavior that Noodles had the

right to reasonably expect of its employees. The ULJ did not err by concluding that

O’Quinn’s conduct was employment misconduct.

       Because O’Quinn’s failure to comply with Noodles’ employee-absence policy

constituted employment misconduct that disqualified her from receiving unemployment

benefits, we need not address the parties’ arguments regarding O’Quinn’s tardiness. Cf.

Woodward v. Interstate Office Sys., 379 N.W.2d 177, 179-80 (Minn. App. 1985) (affirming

a decision of ineligibility to receive unemployment benefits where employee was

discharged for several reasons, at least one of which constituted misconduct).

       Affirmed.




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