                       This opinion will be unpublished and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
                                  A14-1705

                                  Cassandra Tart,
                                     Relator,

                                        vs.

                 American Indian Community Development Corp.,
                                  Respondent,
              Department of Employment and Economic Development,
                                  Respondent.

                                Filed June 8, 2015
                                    Affirmed
                                 Stauber, Judge

              Department of Employment and Economic Development
                              File No. 32637205-3

Peter B. Knapp, Benjamin Harper, Certified Student Attorney, William Mitchell Law
Clinic, St. Paul, Minnesota (for relator)

Kevin R. Coan, Jessica L. Nelson, Hinshaw & Culbertson, L.L.P., Minneapolis,
Minnesota (for respondent American Indian Community Development Corp.)

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

      Considered and decided by Stauber, Presiding Judge; Bjorkman, Judge; and

Rodenberg, Judge.
                         UNPUBLISHED OPINION

STAUBER, Judge

       On certiorari appeal from the unemployment law judge’s (ULJ) decision that

relator was ineligible for unemployment benefits because she was discharged for

employment misconduct based on tardiness and early departures, relator argues that

(1) the ULJ’s decision is not supported by the record and (2) the ULJ failed to fully

develop the record with respect to relator’s depression and illness. We affirm.

                                         FACTS

       In April 2002, relator Cassandra Tart began working for respondent American

Indian Community Development Corporation (AICDC). Relator’s attendance issues

began in 2010. She was “written up” and “spoken to” about these issues several times

between 2010 and 2012. In 2014, however, her attendance issues “escalated.” Between

February 2, 2014, and April 1, 2014, relator was late for work and/or left work early 21

times. Relator was on FMLA leave from April 7 through May 5, 2014, during which

time she was permitted to take leave as needed to deal with her depression. But after her

FMLA leave ended on May 5, relator’s attendance problems continued, and between May

6 and May 25, 2014, relator was late for work four times.

       Relator received written warnings for her attendance problems on March 17, 2014,

April 8, 2014, and April 16, 2014, and she signed the warnings on April 23, 2014. The

warnings stated that relator’s “behavior demonstrates an unacceptable pattern in work

performance” and that “[d]iscipline and/or immediate discharge from employment will

occur if the described behaviors continues.” Despite the warnings, however, relator’s


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attendance issues did not improve. As a result, AICDC discharged relator from

employment on May 30, 2014, due to her “tardies and leaving early.”

       Relator applied for unemployment benefits with respondent Minnesota

Department of Employment and Economic Development (department), and a department

administrative clerk determined that relator was eligible for benefits because she was

discharged for reasons other than employment misconduct. AICDC appealed that

determination and, following a de novo hearing, the ULJ found that relator was either late

for work or left work early 24 times between February and May 2014. The ULJ also

found that relator was “generally late for work because she failed to catch her bus,” and

that she “generally left work early to catch her bus.” The ULJ concluded that relator

“demonstrated a substantial lack of concern for [her] employment because an employee

who cared about continuing her employment would ensure that she reported for work on

time after repeated warnings.” Thus, the ULJ concluded that relator was ineligible for

benefits because she was discharged for employment misconduct. Relator then requested

reconsideration and the ULJ affirmed. This certiorari appeal followed.

                                     DECISION

       When reviewing a ULJ’s eligibility decision, we may affirm, remand 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 affected by

an error of law or are unsupported by substantial evidence. Minn. Stat. § 268.105, subd.

7(d) (2014). We view the ULJ’s factual findings in the light most favorable to the

decision and defer to the ULJ’s credibility determinations. Peterson v. Nw. Airlines Inc.,


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753 N.W.2d 771, 774 (Minn. App. 2008), review denied (Minn. Oct. 1, 2008). “[T]his

court will not disturb the ULJ’s factual findings when the evidence substantially sustains

them.” Id.

                                              I.

       An employee who was discharged is eligible for unemployment benefits unless the

discharge was for employment misconduct. Minn. Stat. § 268.095, subd. 4(1) (2014).

“Employment misconduct” is “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). “Whether an employee

committed employment misconduct is a mixed question of fact and law.” Peterson, 753

N.W.2d at 774. Whether the employee committed the act is a fact question. Skarhus v.

Davanni’s Inc., 721 N.W.2d 340, 344 (Minn. App. 2006). But whether the employee’s

act constitutes employment misconduct is a question of law, which is reviewed de novo.

Stagg v. Vintage Place Inc., 796 N.W.2d 312, 315 (Minn. 2011).

       An employer has the right to expect an employee to work when scheduled. Smith

v. Am. Indian Chem. Dependency Diversion Project, 343 N.W.2d 43, 45 (Minn. App.

1984). A pattern of tardiness may constitute employment misconduct, even if it is not

deliberate or willful. Stagg, 796 N.W.2d at 317 (employee discharged for excessive

absenteeism and tardiness committed employment misconduct).

       Here, relator challenges the ULJ’s decision that she was discharged for

employment misconduct. Specifically, she argues that the following findings are not


                                              4
supported by substantial evidence: (1) that relator arrived at her job late and left early

because of the bus schedule; (2) that relator was required to obtain permission from a

nurse to leave early and she did not obtain that permission; and (3) that relator’s behavior

did not improve after repeated warnings. We disagree.

       The record reflects that when the ULJ asked relator why she was “punching out

before [her shift] was over,” relator replied that she “was just trying to catch a bus.” And

relator admitted that she was sometimes late for work because she missed her bus.

Moreover, when asked why she would miss the bus, relator replied that she was “[j]ust

not getting there on time.” Finally, the representative from AICDC testified that relator’s

explanation to her supervisor for why she was leaving early and arriving late was

“primarily” to “catch a bus.” Thus, the record supports the ULJ’s finding that relator

arrived at her job late and left early because of the bus schedule.

       The record also supports the finding that relator was required to obtain permission

to leave early and that she failed to do so. AICDC’s representative testified that if an

employee wants to leave early, the “nurse that [is] on duty” needs to “sign[] off” on a

“permission form.” The representative also testified that relator failed to get permission

from the nurse on the days she left early. Although relator disputes the representative’s

testimony, the ULJ specifically found AICDC’s representative to be credible, and we

defer the ULJ’s credibility determination. See Peterson, 753 N.W.2d at 774.

       Finally, despite relator’s argument to the contrary, the record supports the ULJ’s

finding that relator’s behavior did not improve after “repeated warnings.” AICDC’s

representative testified that “warning statements began in 2010.” “[Relator] had two


                                              5
warning statements in 2010, two warning statements in 2012, a warning statement in

2013, and then four warning statements in 2014.” The record also reflects that despite

the warnings, relator continued to consistently be late for work and leave work early.

Accordingly, the record supports the ULJ’s decision that relator was ineligible for

unemployment benefits because she was discharged for employment misconduct.

                                              II.

       A ULJ “must exercise control over the hearing procedure in a manner that protects

the parties’ rights to a fair hearing.” Minn. R. 3310.2921 (Supp. 2014). A hearing is

generally considered fair if both parties are afforded the opportunity to give statements,

examine and cross-examine witnesses, and offer and object to exhibits. See Ywswf v.

Teleplan Wireless Servs., Inc., 726 N.W.2d 525, 529-30 (Minn. App. 2007). A ULJ

should assist all parties in the presentation of evidence and ensure that all relevant facts

are clearly and fully developed. Minn. R. 3310.2921.

       Relator argues that the ULJ abused his discretion by “failing to take the testimony

of [relator’s] treating physician or otherwise develop the record after [relator] made it

clear to the ULJ that her mental state contributed to her work performance.” But the

record reflects that at the beginning of the hearing, the ULJ called three numbers and left

two messages in an attempt to contact relator’s witness, Dr. Helen Kim. At the end of the

hearing, the ULJ again attempted to contact Dr. Kim, but was unsuccessful. At that

point, the ULJ determined that Dr. Kim’s testimony was unnecessary. The ULJ’s

decision was not an abuse of discretion because relator admitted that (1) she repeatedly

arrived at work late and left work early due to issues with catching a bus and (2) Dr. Kim


                                              6
was apparently only going to testify as to the reasons relator was absent and, therefore,

Dr. Kim’s testimony would add nothing “regarding [her] late punch-ins or [her] early

departure[s].” See Icenhower v. Total Auto., Inc., 845 N.W.2d 849, 855 (Minn. App.

2014) (concluding that the ULJ did not abuse her discretion by denying relator’s

subpoena requests when the ULJ had sufficient evidence from the testimony, affidavit,

and exhibits already submitted to make her decision), review denied (Minn. July 15,

2014).

         Moreover, the record reflects that the ULJ fully developed the record with respect

to relator’s depression and illness. As stated above, relator admitted that her habit of

leaving work early was premised solely on her desire to “catch a bus.” She also admitted

that when she was late for work, it was usually because she missed the bus. In fact, the

ULJ asked her specifically if there was “anything that prevented her” from catching a

certain bus, and she replied “[n]o, no.” And the ULJ followed up that question by asking

relator “[o]kay, so any other reasons you would have been late besides missing that bus,”

to which relator also replied “[n]o, no.” Relator never claimed that her depression or an

illness caused her to be late for work or prompted her to leave early. Nonetheless, the

record reflects that the ULJ specifically asked relator about her FMLA leave, her

depression and anxiety, and how these illnesses affected her employment. And the

representative for AICDC testified that the employer did not take into account relator’s

tardiness during her time on FMLA leave. Therefore, no further development of the

record was necessary.

         Affirmed.


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