This opinion will be unpublished and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

A14-1564

Wendy Lee,

Relator,

vs.

Ind. School District #833,

Respondent,

Department of Employment and Economic Development,

Respondent.

Filed July 13, 2015

Affirmed

Connolly, Judge

Department of Employment and Economic Development

File No. 32407829-3

Peter B. Knapp, William Mitchell Law Clinic, Renee M. Branshaw (certified student 

attorney), St. Paul, Minnesota (for relator)

Michael J. Waldspurger, Abby M. Novak, Rupp, Anderson, Squires & Waldspurger, 

P.A., Minneapolis, Minnesota (for respondent)

Lee B. Nelson, Munazza Humayun, Minnesota Department of Employment and 

Economic Development, St. Paul, Minnesota (for respondent department)

Considered and decided by Connolly, Presiding Judge; Kirk, Judge; and Smith, 

Judge. 
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U N P U B L I S H E D O P I N I O N

CONNOLLY, Judge

Relator challenges the decision of the unemployment-law judge (ULJ) that 

respondent, the school district that employed her, discharged her for misconduct, arguing 

that: (1) she was discharged for her conduct with the student crossing guards, not for 

tardiness; (2) in any event, her tardiness was not misconduct; and (3) the ULJ’s finding 

that she yelled at the student crossing guards was not supported by substantial evidence. 

Because relator’s discharge was based on her behavior considered as a whole, including

both her repeated tardiness and her yelling at the student crossing guards, because 

substantial evidence supported the ULJ’s findings that relator yelled at the student 

crossing guards, and because both relator’s repeated tardiness and her yelling constituted

employment misconduct, we affirm.

FACTS

Relator Wendy Lee worked as a paraprofessional for respondent Ind. School 

District (ISD) #833. Her employment record shows that, in 2002 and 2003, she received 

letters concerning her tardiness. In 2011, she received a letter directing her to use a 

courteous and professional tone in communicating with staff, parents, and community 

members; in 2012, she received a letter directing her to arrive at work on time and to 

display a positive attitude towards planned student activities.

In August 2013, relator received a letter stating that she had been tardy four times 

during August and should arrive at work and return from breaks in a timely manner. In 

November 2013, she received a letter of reprimand concerning her six failures to be on 
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time for work in October and November. In December 2013, relator received a two-day 

unpaid suspension for tardiness as well as a letter of reprimand concerning her three late 

arrivals in September and three more late arrivals in November. 

Relator again arrived late for work on February 28, 2014. In March 2014, a 

meeting was held concerning this late arrival; the meeting also concerned incidents 

between 8:05 and 8:10 on the mornings of March 17, 19, 25, and 27 in which relator 

directed student crossing guards in the school parking lot to lift their “Stop” flags so she 

could drive past them. On March 27, relator received a letter informing her that she had

been terminated for “repeated tardiness in reporting to work and conducting [her]self in 

an unprofessional manner with peers, students[,] and supervisors, and displaying gross 

misjudgment.”

Relator applied for unemployment benefits, and respondent Department of 

Employment and Economic Development (DEED) determined that she was ineligible. 

Relator challenged this determination; following a telephone hearing, a ULJ determined 

that relator was discharged for employment misconduct based on findings that she 

violated her employer’s reasonable expectations concerning her punctuality and 

professionalism. Her request for reconsideration resulted in an affirmance of the ULJ’s 

decision that she was discharged for misconduct. 

Relator now seeks review of the ULJ’s decision, arguing that (1) she was 

discharged not for tardiness but for her conduct with the student crossing guards; (2) in 

any event, her tardiness on February 28, 2013, did not amount to employment 

misconduct; (3) the crossing-guard incidents did not amount to employment misconduct; 
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and, (4) in the alternative, the findings of fact concerning the crossing-guard incidents

were not supported by substantial evidence.

D E C I S I O N

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

of their own. Minn. Stat. § 268.03, subd. 1 (2014). The chapter is remedial in nature and 

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 (2014). There is no 

burden of proof in unemployment-insurance proceedings. Minn. Stat. § 268.069, subd. 2 

(2014). There is no equitable denial or allowance of benefits. Minn. Stat. § 268.069, 

subd. 3 (2014). Employees discharged for misconduct are not eligible for benefits. 

Minn. Stat. § 268.095, subd. 4 (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.” Minn. Stat. § 268.095, 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. . . . But whether the act committed by the employee constitutes employment 

misconduct is a question of law, which we review de novo.” Peterson v. Nw. Airlines 

Inc., 753 N.W.2d 771, 774 (Minn. App. 2008) (citations omitted), review denied (Minn. 

Oct. 1, 2008). 
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1. Tardiness

Relator argues first that the “triggering reason for [her] discharge was her 

allegedly unprofessional conduct toward student crossing guards and not her history of 

tardiness.” But ISD #833’s March 27, 2014, termination letter told relator: “You are 

being terminated for repeated tardiness in reporting to work and conducting yourself in 

an unprofessional manner with peers, students and supervisors, and displaying gross 

misjudgment.” (Emphasis added.) The letter went on to review the six letters of 

discipline relator had received, five of which referred to her tardiness; it also mentioned 

at least two conversations with relator concerning tardiness. 

Relator argues that she was not terminated for tardiness because her last tardiness 

was February 28 and she was not terminated until March 27, after the incidents with the

student crossing guards. But the tardiness and those incidents are not mutually exclusive 

causes of termination: relator’s “behavior may be considered as a whole” in determining 

whether she was discharged for misconduct. Drellack v. Inter-Cnty. Cmty. Council, Inc., 

366 N.W.2d 671, 674 (Minn. App. 1985). Relator’s tardiness increased significantly 

during the last months of 2013, resulted in her suspension in December 2013, and 

recurred in February 2014; the ULJ did not err by finding that tardiness was one cause of 

relator’s termination in March 2014.

Relator also argues that her February 28 tardiness did not rise to the level of 

employment misconduct because she was only one minute late that day. But, as the 

termination letter indicates, it was not the February 28 tardiness alone that was 

considered grounds for termination: it was relator’s repeated tardiness over a period of 
6

months that amounted to employment misconduct and led to her termination. See id. 

(employee’s behavior may be considered as a whole in determining misconduct).

2. Incidents with Student Crossing Guards

Relator argues that the findings concerning her conduct with the student crossing 

guards were not supported by substantial evidence. But relator did not deny that she told 

the student crossing guards to raise their “Stop” flags: when she was asked on what dates 

ISD #833 said she did this, she answered that she thought she did it only twice, although 

ISD #833 said she did it on four occasions. When asked if she was yelling at the crossing 

guards, she said, “I wouldn’t say yelling. I would say speaking as loud as I can” but then 

agreed with the ULJ that “somebody speaking as loudly as they can . . . that’s yelling.” 

The ISD #833 representative described the March 27 incident to the ULJ: “[When 

relator was o]n her way in to . . . the parking lot numerous parents and staff reported that 

she was . . . yelling at our student patrol. . . . [Relator] said . . . you need to let this traffic 

go. Clearly she was concerned about being late.” The ULJ then questioned the ISD #833 

representative:

Q: What did [relator] . . . say was going on?

A: She said the students were in the wrong place and they 

were doing it wrong.

Q: Okay. Is that true?

A: No. . . . We pay someone as an adult crossing 

guard . . . [T]hat person’s job [is] to tell the students 

where to stand and what to do. It is not up to anybody 

else to tell the students. In fact, it would confuse the 

student[s] to have an adult tell them something 

different than they’ve been instructed by the adult 

crossing guard.
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Q: Did the parents or the two faculty members that raised 

the issue, did they give some detail as to what [relator] 

said or how she said it?

A: Yes, they indicated that there [was] an adult outside 

yelling at the students to lift the flag so she could get 

through.

Q: All right.

A: And they were very, very concerned.1

The ULJ found that ISD #833 “present[ed] a highly plausible and logical chain of 

events leading to the discharge” and noted that its “witnesses and version of the events 

[were] more credible [than relator’s].” This court “gives deference to the credibility 

determinations made by the ULJ . . . [and] will not disturb the ULJ’s factual findings 

when the evidence substantially sustains them.” Peterson, 753 N.W.2d at 774.

Relator objects that some of the testimony during the telephone hearing was based 

on hearsay evidence. But the evidentiary standard in an unemployment hearing need not 

conform to the rules of evidence. Minn. Stat. § 268.105, subd. 1(b) (2012). Substantial 

evidence, including relator’s own testimony, supported the finding that relator yelled at 

the student crossing guards to raise their flags so she could get through, see Peterson, 533

N.W.2d at 774, and this conduct violated the standards of behavior ISD #833 had a right 

to reasonably expect. See Minn. Stat. § 268.095, subd. 6(a).

 

1 Relator argues that this testimony contradicts the termination letter because it mentions 

only parents and teachers complaining about relator’s conduct, while the termination 

letter referred to “parents, other staff, the bus patrols, and the adult crossing guard” 

complaining. But the testimony concerned only the March 27 incident; complaints about 

other incidents were made by the bus patrols and the adult crossing guard. 
8

Relator’s repeated tardiness and her conduct with the student crossing guards 

constituted employment misconduct that caused her termination. She is ineligible for 

unemployment benefits.

Affirmed.