                         This opinion will be unpublished and
                         may not be cited except as provided by
                         Minn. Stat. § 480A.08, subd. 3 (2012).

                              STATE OF MINNESOTA
                              IN COURT OF APPEALS
                                    A14-0470

                                     Jesse Marshall,
                                         Relator,

                                           vs.

                       St. John’s Lutheran Home of Albert Lea,
                                     Respondent,
                Department of Employment and Economic Development,
                                     Respondent.

                               Filed December 15, 2014
                                      Affirmed
                                     Reyes, Judge

                Department of Employment and Economic Development
                                File No. 31768115-3

Jesse B. Marshall, Albert Lea, Minnesota (pro se relator)

St. John’s Lutheran Home of Albert Lea, Albert Lea, Minnesota (respondent employer)

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

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

Reyes, Judge.

                        UNPUBLISHED OPINION

REYES, Judge

      Relator challenges a final decision of an unemployment law judge (ULJ) that he is

ineligible for unemployment benefits because he was discharged for employment
misconduct for excessive tardiness. Relator argues that (1) the ULJ erred by determining

that relator’s repeated tardiness constituted employment misconduct; (2) the ULJ abused

his discretion by declining to grant a new evidentiary hearing; and (3) relator did not

receive a fair hearing. We affirm.

                                          FACTS

       Relator Jesse Marshall worked for St. John’s Lutheran Home (St. John’s) from

October 3, 2011, through October 18, 2013, as a maintenance coordinator. His job

responsibilities included coordinating the maintenance department, performing tasks as

the lead maintenance person, and taking care of the boilers. Marshall was scheduled to

work 40 hours per week in full-time employment. St. John’s policy provides that an

employee may be suspended or terminated if the employee has nine occurrences of

tardiness over a rolling 12-month period. However, there were some discrepancies

relating to the number of late appearances required before the policy called for

termination. Marshall claimed a company memo stated termination would occur after 11

instances of tardiness, while St. John’s maintained that the policy has always been nine.

       On November 13, 2012, Marshall arrived to work 30 minutes late and was

suspended for one day because he had reached seven late occurrences in a rolling 12-

month period. Despite the suspension, Marshall was repeatedly tardy throughout the

following year. On February 1, 2013, Marshall arrived 45 minutes late to work. On

February 14, Marshall was 30 minutes late and was suspended for two days. At that

time, St. John’s changed Marshall’s start time from 7:00 a.m. to 8:00 a.m. in an effort to

help him arrive on time. Despite the change, Marshall arrived late to work on June 27,


                                             2
July 18, and September 3. On September 6, Marshall received a written warning due to

his repeated tardiness. St. John’s informed him that being on time was important and that

another late arrival would result in a two-day suspension. On September 26, Marshall

was 15 minutes late to work but was not suspended. On October 17, Marshall was 90

minutes late to work and was discharged the next day. At the time of his discharge,

Marshall had eight occurrences of tardiness over a rolling 12-month period.

      Marshall applied for unemployment benefits but was determined to be ineligible

on November 11, 2013. He appealed the determination and a telephone hearing with a

ULJ was held on December 12, 2013. The ULJ issued his findings of fact and decision

the next day and upheld the ineligibility determination. The ULJ found that Marshall was

tardy eight times during a rolling 12-month period and as such, Marshall violated his

employer’s reasonable expectation that he report to work for his scheduled shifts on time.

The ULJ found that Marshall had been disciplined for excessive tardiness in the past by

his employer, Marshall was aware his tardiness was a problem, and Marshall knew that

being on time was very important to his employer. Marshall filed a request for

reconsideration on January 2, 2014. The ULJ affirmed his decision on February 21,

2014, stating that the new evidence Marshall presented “would not likely change the

outcome of the decision and [Marshall] has not shown good cause for not having

previously submitted the evidence.” This certiorari appeal follows.

                                    DECISION

      The purpose of chapter 268 is to assist those who are unemployed through no fault

of their own. Minn. Stat. § 268.03, subd. 1 (2012). The chapter is remedial in nature and


                                            3
must be applied in favor of awarding benefits, and any provision precluding receipt of

benefits must be narrowly construed. Minn. Stat. § 268.031, subd. 2 (2012). When

reviewing the decision of a ULJ, this court may affirm, remand for further proceedings,

reverse, or modify the decision below if the substantial rights of the relator have been

prejudiced because the conclusion, decision, findings, or inferences are affected by errors

of law, unsupported by substantial evidence in view of the entire record, or are arbitrary

or capricious. 2014 Minn. Laws, ch. 271, art. 1, § 1, at 1028-29 (to be codified at Minn.

Stat. § 268.105, subd. 7(d) (2014)).

       Marshall makes numerous general complaints about the truthfulness of St. John’s

testimony and about the legitimacy of the ULJ’s credibility determination, among other

arguments. In any appeal, this court seeks to identify and analyze an appellant’s

assertions of error. See Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (“The

function of the court of appeals is limited to identifying errors and then correcting

them.”). Marshall’s arguments appear to fall into three categories: (1) the ULJ erred in

determining that Marshall’s repeated tardiness constituted employment misconduct;

(2) the ULJ abused his discretion by declining to hold a new evidentiary hearing; and

(3) the record shows that Marshall did not receive a fair telephone hearing. We find none

of these arguments convincing.

I.     Repeated Tardiness Constituting Employee Misconduct

       Marshall first argues that the ULJ erred in finding that his repeated tardiness was

employment misconduct disqualifying him from unemployment benefits. Whether

Marshall engaged in conduct that disqualifies him from unemployment benefits is a


                                              4
mixed question of fact and law. Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804

(Minn. 2002). Whether a particular act constitutes employment misconduct is a question

of law, which is reviewed de novo. Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32,

34 (Minn. App. 1997). But whether the employee committed the particular act is a

question of fact. 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. Skarhus v.

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

       An employee who is discharged from employment for misconduct is ineligible to

receive unemployment benefits. Minn. Stat. § 268.095, subd. 4(1) (2012). 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.” 2014 Minn. Laws, ch. 239, §5, at 772 (to be codified at Minn. Stat.

§ 268.095, subd. 6(a) (2014)). As a general rule, an employee’s refusal to abide by an

employer’s reasonable policies and requests amounts to disqualifying misconduct.

Schmidgall, 644 N.W.2d at 804. “Minnesota law allows an employer to establish and

enforce reasonable rules governing employee absences.” Cunningham v. Wal-Mart

Assoc., Inc., 809 N.W.2d 231, 234 (Minn. App. 2011).

       Marshall argues that the ULJ erred in determining that his conduct constituted

employee misconduct under section 268.095, subdivision 6(a). Marshall argues that he

had no way of knowing that his job was on the line at the time of his discharge and that

the only time he was concerned about a possible termination was on February 14, 2013,


                                             5
after his two-day suspension. On September 6, 2013, two late occurrences prior to the

instance that lead to his discharge, Marshall received a warning that he would be

suspended the next time he was late. However, when he was late on September 26,

Marshall did not receive the suspension. Therefore, Marshall argues that St. John’s did

not follow its own policy during his final late occurrence on October 17, when he was

immediately discharged instead of first receiving a suspension.

       Marshall’s argument misses the mark. The “general rule” regarding employment

misconduct only requires that an employer’s policies be “reasonable” and an employer

has a right to expect that employees will work when scheduled. Schmidgall, 644 N.W.2d

at 804. Therefore, St. John’s had a reasonable expectation that Marshall would arrive at

work every day at 8:00 a.m. Whether Marshall complied with the reasonable policy of

showing up when scheduled has little to do with whether St. John’s should have first

suspended him before discharging him. The facts in this case are particularly similar to

those in Stagg v. Vintage Place Inc., 796 N.W.2d 312, 316 (Minn. 2011). In Stagg, the

employer had a disciplinary procedure for tardiness which called for three-day and 10-

day suspensions after the third and fourth instances, and discharge after the fifth. Id at

314. The relator in Stagg was discharged after his fourth instance and argued that he did

not know his job was at risk because he had not first received the 10-day suspension. Id.

The court rejected this argument and instead held that:

              [W]hether an employer follows the procedures in its
              employee manual says nothing about whether the employee
              has violated the employer’s standards of behavior. Put
              another way, an employee’s expectation that the employer
              will follow its disciplinary procedures has no bearing on


                                              6
              whether the employee’s conduct violated the standards the
              employer has a reasonable right to expect or whether any
              such violation is serious.

Id. at 316.

A similar analysis applies here. A pattern of absenteeism and tardiness can constitute

employment misconduct because it demonstrates a lack of concern by the employee for

the job. Jones v. Rosemount, Inc., 361 N.W.2d 118, 120 (Minn. App. 1985). Marshall

was late on at least eight occasions between October 2012 and October 2013, after seven

times in the prior twelve month period. Such a record demonstrates a serious violation of

the standards of behavior that an employer had the right to reasonably expect.

       Marshall’s other arguments relating to misconduct are without merit. First,

Marshall makes general claims relating to whether the policy was really a “nine-in-

twelve-months” policy or an “eleven-in-twelve-months” policy. The ULJ heard

testimony from both parties on this matter and determined that the policy was indeed nine

late occurrences over a rolling 12-month period and that Marshall was aware of this

policy. This court “defer[s] to the ULJ on credibility determinations.” Wiley v. Dolphin

Staffing—Dolphin Clerical Grp., 825 N.W.2d 121, 124 (Minn. App. 2012), review denied

(Minn. Jan. 29, 2013). Moreover, this argument focuses on the employer’s policy rather

than on Marshall’s conduct.

       Second, Marshall makes a brief argument that his tardiness was not misconduct

because it was caused by St. John’s asking him to work voluntary night shifts. No

evidence was submitted at the evidentiary hearing to corroborate this claim. The only

excuses Marshall gave in his testimony to justify his tardiness was that he was up late


                                             7
working on his house or truck, and on another occasion, he stayed up late to clean a

wound on his hand. Marshall tried to give testimony about St. John’s making him work

late in his request for reconsideration, but the ULJ held that such evidence would not

likely change the outcome of the decision and that he had not shown good cause for not

having previously submitted it. The ULJ did not abuse his discretion in making that

determination.

II.    New Evidentiary Hearing

       The ULJ must order an additional evidentiary hearing if an involved party shows

that evidence which was not submitted at the evidentiary hearing: (1) would likely

change the outcome of the decision and there was good cause for not having previously

submitted that evidence or (2) would show that the evidence that was submitted at the

evidentiary hearing was likely false and that the likely false evidence had an effect on the

outcome of the decision. 2014 Minn. Laws, ch. 251, art. 2, § 16, at 864 (to be codified at

Minn. Stat. § 268.105, subd. 2(c) (2014)). This court defers to a ULJ’s decision whether

to grant an additional evidentiary hearing and will reverse that decision only if the ULJ

abused its discretion. Vasseei v. Schmitty & Sons Sch. Buses Inc., 793 N.W.2d 747, 750

(Minn. App. 2010).

       Marshall argues that the ULJ erred by not granting an additional evidentiary

hearing because he submitted evidence showing that St. John’s testimony was not truthful

and that he was late because his job responsibilities caused him to come in during the

evenings prior to his late occurrences. In his request for reconsideration, Marshall stated

that he was late on February 14, 2013, due to car troubles but was told by St. John’s that


                                             8
he would not receive a tardy if he still came in. According to Marshall, the ULJ should

have ordered a new evidentiary hearing upon receiving these statements because they

show that St. John’s testimony regarding the February 14, 2013 incident was false. This

argument is unconvincing. Even if the February 14 incident is completely ignored, there

are multiple uncontested incidents in the record which display a pattern of excessive

tardiness. Throwing one out would have no effect on the outcome of the decision.1

Marshall further argues that an additional evidentiary hearing was warranted when

Marshall indicated that his tardiness was caused by being forced to work late on the

nights previous to being tardy. Again, this argument is unconvincing. Ignoring the

dubious assumption that working late the night before would excuse tardiness the next

morning, there is nothing in the record showing that Marshall worked on the specific

nights prior to being tardy. After admitting that he has “no documented proof,” Marshall

simply states that he had been forced to work late “multiple times” and recalls a time

where he was called in while on vacation. Such evidence is unhelpful in showing that

Marshall did not commit misconduct by repeatedly being tardy on the specific dates

discussed.2 Therefore, the ULJ did not abuse his discretion when he affirmed his

previous decision and denied granting an additional evidential hearing.



1
  Furthermore, Marshall offered no good cause at reconsideration for why this evidence
was not previously brought, as required under section 268.105, subdivision 2(c).
Marshall currently attempts to argue that he did not bring it forth because he did not
understand what the term “evidence” meant, but such an argument was not previously
raised and is thus precluded under Thiele v. Stich, 482 N.W.2d 580, 582 (Minn. 1988).
2
  Again, Marshall offered no good cause at reconsideration for why this evidence was not
previously brought, as required under section 268.105, subdivision 2(c).

                                            9
III.   Fair Hearing

       Finally, Marshall asserts that he did not get a fair hearing. A ULJ “must exercise

control over the hearing procedure in a manner that protects the parties’ rights to a fair

hearing.” 39 Minn. Reg. 147, 151, 153 (Aug. 4, 2014) (to be codified at Minn. R.

3310.2921 (Supp. 2014)). A hearing is generally considered fair if both parties are

afforded the opportunity to give statements, 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) (citing Minn. R. 3310.2921). A ULJ should assist parties in the

presentation of evidence. 39 Minn. Reg. 147, 151, 153 (Aug. 4, 2014) (to be codified at

Minn. R. 3310.2921 (Supp. 2014)). A ULJ must ensure that all relevant facts are clearly

and fully developed. Id.3

       Marshall’s complaints against the ULJ are twofold: (1) the ULJ failed to fully

develop the record and (2) the ULJ exhibited bias when questioning the witness, which

favored St. John’s. A careful examination of the record dispels both assertions.

       The ULJ did not fail to develop the record. The ULJ began the hearing by

explaining the procedure and asked Marshall if he had any questions about the procedure,

to which he responded, “No.” The ULJ questioned each witness about the factual

underpinnings of the case. The ULJ specifically asked about Marshall’s job


3
  The “clearly and fully developed” language of this section has since been removed by
2014 Minn. Laws, ch. 251, art. 2, § 15 (to be codified at Minn. Stat. § 268.105, subd. 1(b)
(2014)). But because the amendment was not specifically made retroactive, we perform
the analysis under the 2012 version of the statute. See Braylock v. Jesson, 819 N.W.2d
585, 588 (Minn. 2012) (addressing how to determine whether amendment of statute was
meant to be retroactive).

                                             10
responsibilities and the wound he suffered prior to the last time he was late, two areas

which Marshall asserts were not properly developed. The ULJ provided Marshall an

opportunity to question witnesses and offer additional evidence at the end of his

testimony. Both parties were given the opportunity to provide closing statements prior to

closing the record. Marshall’s argument that the ULJ failed to develop the record fully is

not support by the record.

       Marshall asserts that the ULJ exhibited bias by “coaching” St. John’s through their

testimony. Marshall specifically argues that the ULJ’s question “So when you met with

him on September 6, did you convey to him the seriousness of the issue or tell him that

his job was in jeopardy?” exhibited bias because it “basically tells them to say yea.” This

is not bias. Instead, the ULJ was simply trying to determine whether Marshall knew that

his job was on the line when he showed up late for the final time in October. This is a

valid inquiry and was not made in a way that “coached” the witness to respond one way

or the other. Furthermore, the ULJ specifically asked Marshall for his version of what he

was told on September 6. It seems that what Marshall really objects to is the ULJ’s

credibility determination favoring St. John’s version over his own. This is not evidence

of bias and this court defers to the ULJ’s credibility determinations. Skarhus, 721

N.W.2d at 344. Accordingly, Marshall’s arguments are without merit and the ULJ did

not err in determining that he is ineligible for unemployment benefits.

       Affirmed.




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