                         This opinion will be unpublished and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
                                    A14-1303

                                   Janvier LeViege,
                                       Relator,

                                           vs.

                         U.S. Postal Service (FIC 732/Dest 1),
                                      Respondent,

               Department of Employment and Economic Development,
                                   Respondent.

                                  Filed May 11, 2015
                                       Affirmed
                                   Peterson, Judge

                Department of Employment and Economic Development
                                File No. 32274739-3

Janvier D. LeViege, Cottage Grove, Minnesota (pro se relator)

U.S. Postal Service, St. Louis, Missouri (respondent employer)

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


      Considered and decided by Worke, Presiding Judge; Peterson, Judge; and

Connolly, Judge.
                           UNPUBLISHED OPINION

PETERSON, Judge

          Relator challenges an unemployment-law judge’s decision that relator is ineligible

for unemployment benefits because she was terminated from employment for misconduct

after twice failing to comply with the employer’s policy for reporting unscheduled

absences. Relator argues that (1) she did not commit misconduct because the absences

were covered under the Family Medical Leave Act (FMLA), and she complied with the

FMLA’s reporting requirements; and (2) an additional hearing should have been allowed

because she did not receive one of the employer’s exhibits until the hearing date. We

affirm.

                                           FACTS

          Relator Janvier LeViege worked for respondent U.S. Postal Service as a mail

handler and equipment operator. The record contains evidence about disciplinary actions

taken against relator during her employment.          The postal service uses a four-step

disciplinary process. The first step is a letter of warning, the second and third steps are

suspensions, and the fourth step is termination.

          On August 15, 2013, relator twice failed to report to her assigned work areas. She

also initially ignored a supervisor’s instruction to turn in a radio that she did not need to

use that day and then angrily slammed the radio into the supervisor’s hand and, using

profanity, insulted him and called him a derogatory name.             Because relator had

previously received a letter of warning, she received a seven-day suspension for this

incident.


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       On November 27, 2013, relator was repeatedly away from her work area when she

was supposed to be working. When questioned by a supervisor, relator said that the

forklift that better accommodated her back issues was missing. Relator ignored the

supervisor’s repeated instructions to get the forklift from a coworker who was using it

and instead demanded that the coworker bring the forklift to her. During the exchange,

relator became increasingly loud and belligerent. Relator received a 14-day suspension

for this incident.

       On December 11, 2013, relator was two hours late to work and did not report her

tardiness until after she arrived at work. On December 14, 2013, relator did not report to

work. Five hours after her shift started, she called and requested eight hours of leave for

the day. The postal service’s policy requires employees to report unscheduled absences

in advance unless prevented from doing so by an actual emergency. On December 18,

2013, the postal service provided relator with union representation and asked her to

explain her actions on December 11 and 14. Relator responded, “No thanks.” She

refused to sign the leave request forms on which she could state her reasons for missing

work and would not even look at them.

       On December 22, 2013, the postal service gave relator a notice of removal with a

discharge date of January 21, 2014. The notice stated that relator’s failure to provide a

satisfactory explanation for her behavior on December 11 and 14 was unacceptable




                                            3
behavior. The notice also stated that relator’s past disciplinary record was considered in

deciding to discharge her. Relator’s last day of work was January 24, 2014.1

       Respondent Minnesota Department of Employment and Economic Development

denied relator’s request for unemployment benefits. Relator appealed, and following an

evidentiary hearing, an unemployment-law judge (ULJ) determined that relator was

discharged for misconduct and therefore was ineligible for benefits. Relator requested

reconsideration.   The ULJ affirmed the misconduct determination but modified the

findings of fact to clarify that relator committed the actions for which she was disciplined

in August and November 2013 and that relator was absent without leave on December 11

and 14, 2014. This certiorari appeal followed.

                                     DECISION

       We review a ULJ’s decision to determine whether a party’s substantial rights may

have been prejudiced because the ULJ’s findings, inferences, conclusions, or decision are

unsupported by substantial record evidence or affected by an error of law or procedure.

Minn. Stat. § 268.105, subd. 7(d)(3)-(5) (2014).

       An employee who was discharged from employment because of employment

misconduct is ineligible for unemployment benefits. Minn. Stat. § 268.095, subd. 4(1)

(2014).   “Employment misconduct” is defined as “any intentional, negligent, or

indifferent conduct . . . that displays clearly: (1) a serious violation of the standards of


1
  Relator grieved her discharge. Relator and the postal service reached a settlement under
which the discharge was converted to a 43-day suspension. Because the suspension was
longer than 30 calendar days, it is a discharge for purposes of unemployment benefits.
Minn. Stat. § 268.085, subd. 13(b) (2014).

                                             4
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. Whether the employee
              committed a particular act is a question of fact. We view the
              ULJ’s factual findings in the light most favorable to the
              decision, giving deference to the credibility determinations
              made by the ULJ. In doing so, we will not disturb the ULJ’s
              factual findings when the evidence substantially sustains
              them. Minn. Stat. § 268.105, subd. 7(d). But whether the act
              committed by the employee constitutes employment
              misconduct is a question of law, which we review de novo.

Skarhus v. Davanni’s Inc., 721 N.W.2d 340, 344 (Minn. App. 2006) (other citations

omitted).

      Relator argues that the postal service wrongfully denied her FMLA leave for the

December 11 and 14 absences. On the FMLA certification form, relator’s healthcare

provider described the condition for which relator was eligible for FMLA leave as back

pain that made relator unable to perform her job duties. The healthcare provider’s

February 7, 2014 note states that relator “has been on medication that has the potential of

making her drowsy.”

      In the reconsideration order, the ULJ found:

                     [Relator] does not assert anything new about her
              FMLA. . . . [Relator] and the healthcare provider did not
              amend [relator’s] FMLA leave to allow her to be late because
              of medication making her incapable of waking up. The call
              in requirement to report absences still applied, unless it was
              not medically possible to do so.

                   [Relator] states December 11, 2013 and December 14,
              2013 are covered by FMLA and she has confirmation
              numbers. The evidence shows that [relator] requested FMLA


                                            5
              coverage after the absences and her failure to timely notify
              the employer had occurred, and that [a supervisor] denied the
              requests on December 19, 2013, after an investigatory
              interview. The evidence is insufficient to support that the
              incidents on December 11, 2013 and December 14, 2013
              were the result of medical incapacity. The evidence shows
              oversleeping was not covered by the FMLA and that it could
              have been prevented by reasonable planning and precautions.

       Relator argues that the ULJ improperly described her conduct as oversleeping

when in fact it was “cognitive impairment” due to pain medication. No evidence in the

record supports this argument. Back pain was the condition for which relator was

eligible for FMLA leave, and no evidence indicates that the medication relator was taking

had the potential to result in an impairment that made it medically impossible for her to

comply with the postal service’s call-in requirement.

       Relator argues that she was not prepared for the hearing before the ULJ because

she did not receive the employer’s exhibit five, which contains documents relating to

relator’s grievance and disciplinary history, until the hearing date and that her lack of

preparation may have been a reason why the ULJ found the employer’s testimony more

credible than relator’s.2 But relator knew her own grievance and disciplinary history, and

she does not indicate how the claimed lack of preparation affected her testimony. Also,

the ULJ found relator’s testimony less credible because relator failed to present evidence

showing that she “was incapacitated or unable to wake up by taking reasonable

precautions and planning,” and relator failed to present any additional evidence on that


2
  Exhibit five was not labeled as an exhibit until the hearing date. But at the hearing, the
ULJ noted that the postal service had recently submitted the 67-page exhibit, and relator
stated that she had received a copy from the postal service by mail.

                                             6
point when she requested reconsideration. This court defers to the ULJ’s credibility

determinations. Bangtson v. Allina Med. Grp., 766 N.W.2d 328, 332 (Minn. App. 2009).

      Relator twice failed to comply with the postal service’s policy that requires an

employee to report an unscheduled absence before the employee’s shift starts. “An

employer has the right to establish and enforce reasonable rules governing absences from

work.” Wichmann v. Travalia & U.S. Directives, Inc., 729 N.W.2d 23, 28 (Minn. App.

2007). An employee who violates an employer’s reasonable policy or who refuses to

carry out an employer’s reasonable directive commits employment misconduct.

Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 806-07 (Minn. 2002). Relator’s past

disciplinary history, including the two incidents of insubordinate behavior in August and

November 2013, was also a factor in the postal service’s decision to discharge her.

Substantial evidence supports the ULJ’s findings on the acts committed by relator, and

those findings support the conclusion that relator was discharged because she committed

employment misconduct within the meaning of Minn. Stat. § 268.095, subd. 6(a).

      Affirmed.




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