Julie Schwantes, Relator,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1979

Julie Schwantes,
Relator,

vs.

Northwest Packaging, Inc.,
Respondent,

Department of Employment and Economic Development,
Respondent.

Filed September 11, 2017
Affirmed
Peterson, Judge

Department of Employment and Economic Development
File No. 34627509-3

James F. Dunn, The Law Office of James F. Dunn, P.A., Eagan, Minnesota (for relator)

Michael J. Moberg, Jackson Lewis P.C., Minneapolis, Minnesota (for respondent
Northwest Packaging, Inc.)

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

Considered and decided by Smith, Tracy M., Presiding Judge; Peterson, Judge; and
Connolly, Judge.

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U N P U B L I S H E D O P I N I O N
PETERSON, Judge
In this unemployment -compensation appeal, relator challenges a decision by an
unemployment-law judge (ULJ) that relator is ineligible for unemployment benefits
because she was discharged for employment misconduct. Relator argues that the ULJ erred
by (1) concluding that relator’s conduct displayed a serious lack of concern for her
employment; (2) finding that relator’s conduct was not the consequence of mental illness
or impairment, or inability or incapacity; and (3) failing to adequately set forth reasons for
discrediting the employee’s testimony and crediting the employer’s testimony. We affirm.
FACTS
Relator Julie Schwantes worked for respondent Northwest Packaging, Inc., as an
accounting clerk from October 29, 1997, through April 25, 2016. Her scheduled hours
were from 8:00 a.m. until 4:30 p.m., Monday through Friday. Controller Karen Gerr was
Schwantes’s supervisor. Because Gerr and Schwantes were the only two employees in the
department, they coordinated their time off so that their jobs were always covered.
Because Northwest Packaging has few employees, the employees need to schedule
nonemergency appointments in advance to ensure that all positions are covered. For
nonemergency appointments, Northwest Packaging prefers two weeks’ advance notice and
requires a minimum of three days’ notice. For emergencies, employees should report the
absence by 7:30 a.m. if possible. It is unacceptable for an employee to report an absence
due to a previously scheduled appointment on the morning of the appointment.

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If Schwantes needed to leave work early, she was expected to notify Gerr before
leaving. If Gerr was unavailable, Schwantes was expected to notify Northwest Packaging
President Steven Durand. Schwantes was aware of this policy.
Schwantes suffered from migraine headaches, neck pain, depression, and anxiety.
Schwantes was often absent or late due to these medical conditions. Gerr repeatedly asked
Schwantes to provide lists of upcoming medical appointments , but Schwantes frequently
did not provide notice of an appointment until the afternoon before or the day of an
appointment.
On October 21, 2015, Durand texted Schwantes a warning stating that the company
needed to plan for her absences, that one day’s notice outside of an emergency did not
allow for that, that further late notices would not be permitted, and that Schwantes would
be subject to discipline if she continued to provide inadequate notice . On February 3 and
March 29, 2016, Schwantes received second and third warnings for providing inadequate
notices of appointments. The March 29 warning stated that it was a final warning and that
“[f]ailure to give at least a 2 week notice for planned ap pointments in the future will be
subject to disciplinary action, including termination.”
On March 29, Schwantes made an appointment with her doctor for the following
day but did not provide notice to Northwest Packaging until the next morning. On March
30, Gerr texted Schwantes a warning that stated: “You must notify us in advance of
scheduled appointments and otherwise show up to work on time just as is expected of other
employees. Failure to do so will lead to further discipline, including terminati on of
employment.” On April 18, Schwantes went to work and stated that she had a medical

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appointment at 9:00 a.m. that morning. When Gerr asked when the appointment was
scheduled, Schwantes said that it had been scheduled the previous week.
On the morning of Friday, April 22, 2016, Schwantes made a medical appointment
for 2:30 p.m. that afternoon. Although Gerr was not in the office that day, Durand was in,
and Schwantes did not notify him of the appointment. Instead, she told a coworker that
she was leaving for a medical appointment. Schwantes did not return to work after the
appointment. That afternoon, Durand texted Schwantes, asking why she had left when it
was not prearranged. Schwantes did not respond until Sunday night. On Monday morning,
Schwantes texted that she would be in at noon. That day, Northwest Packaging discharged
Schwantes for not providing proper notice of medical appointments and other absences.
Schwantes applied for unemployment benefits, and respondent Minnesota
Department of Employment and Economic Development (DEED) determined that she was
ineligible for benefits. Schwantes appealed, and, following a telephone hearing, the ULJ
determined that Schwantes was discharged from employment for misconduct and
confirmed the ineligibility determination. On Schwantes’s request for reconsideration, the
ULJ issued an order of affirmation. This certiorari appeal followed.
D E C I S I O N
I.
We may affirm, remand, reverse, or modify a ULJ’s decision if, among other things,
the decis ion is unsupported by substantial record evidence , “ made upon unlawful
procedure,” or contrary to law. Minn. Stat. § 268.105, subd. 7(d)(3)-(5) (2016).

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An applicant who was discharged from employment for misconduct is ineligible for
unemployment benefits. Minn. Stat. § 268.095, subd. 4(1) (2016). “Employment
misconduct” is defined as “any intentional, negligent, or indifferent conduct on the job . . .
that displays clearly . . . a serious violation of the standards of behavior the employer has
a reasonable right to expect of the employee; or . . . a substantial lack of concern for the
employment.” Id., subd. 6(a)(1), (2) (2016).
A ULJ’s misconduct determination is a mixed question of fact and law. Wilson v.
Mortgage Res. Ctr., Inc., 888 N.W.2d 452, 460 (Minn. 2016). We review the ULJ’s factual
findings about an employee ’s conduct in the light most favorable to the decision. Id.
“Whether a particular act constitutes disqualifying conduct is a question of law,” subject
to de novo review. Id.
An employer is permitted to establish reasonable rules governing absence from
work. Wichmann v. Travalia & U.S. Directives, Inc. , 729 N.W.2d 23, 28 (Minn. App.
2007). An employee who disregards an employer’ s tardiness or absence policies violates
the standards of behavior an employer can reasonably expect from an employee, and,
therefore, commits employment misconduct. Stagg v. Vintage Place Inc ., 796 N.W.2d
312, 317 (Minn. 2011). Failure to follow such reasonable rules is employment misconduct
that disqualifies an applicant from receiving unemployment benefits. Schmidgall v.
FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).
The ULJ made specific findings about the numerous times that Schwantes failed to
comply with the notice requirements for nonemergency appointments. Schwantes received
warnings that she must comply with notice requirements on October 21, 2015, February 3,

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2016, and March 29 and 30, 2016. On April 18, 2016, Schwantes provided notice of an
appointment that morning that had been scheduled the previous week. On the morning of
Friday, April 22, 2016, Schwantes scheduled a medical appointment for that afternoon.
She did not repo rt the appointment to management, she did not return to work after the
appointment, and she did not respond to Durand’s inquiry about the appointment until
Sunday night.
Schwantes argues that, in part, she was discharged “because of her ‘conduct’ which
was her inability or incapacity to attend work consistently.” But the ULJ found that
Schwantes was discharged for her “failure to follow known protocol for reporting schedule
deviation” and her failure to return to work on April 22 or respond to Durand’s text until
Sunday night.
Schwantes argues that “[w]hat ‘proper’ notice was under the circumstances in this
case was defined by what the employer said it was: ‘adequate notice of scheduled
appointments.’” There was testimony that Northwest Packaging’s policy was that 14 days’
notice for nonemergency appointments was preferred and three days’ notice was the
minimum and that Schwantes was aware of that policy. To the extent the policy was
modified for Schwantes, the modifications were stated in the warnings.
Substantial evidence supports the ULJ’s findings that Schwantes knew the
employer’s notice requirements for nonemergency appointments and received repeated
warnings after violations. On April 22, less than four weeks after receiving a warning that
future violations could result in termination, Schwantes again violated the notice
requirements. Schwantes argues that the ULJ assigned too much significance to her failure

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to return to work on April 22 when there was only about a half hour left in the w orkday
and to her failure to respond to Durand’s text until Sunday night. Although this particular
conduct might not have been a sufficient basis by itself to show misconduct, it must be
viewed in the context of her repeated violations of the notice requi rements. The ULJ’s
misconduct determination is not contrary to law.
II.
The misconduct definition excludes “conduct that was a consequence of the
applicant’s mental illness or impairment” and “conduct that was a consequence of the
applicant’s inability or incapacity.” Minn. Stat. § 268.095, subd. 6(b)(1), (5) (2016).
The ULJ found:
Schwantes provided notice that she suffers from physical and
mental illnesses, but that does not equate to providing notice
that she would be absent as a consequence of those illnesses.
Schwantes did not provide proper notice of her absence on
April 22, 2016, despite multiple discussion[s] with Gerr, and
an evolving notice paradigm, to ensure Schwantes gave proper
notice. Schwantes testified that she did not provide proper
notice because communicating with Gerr and Durand
aggravated her depression and anxiety disorders. Because of
the extensive communications between Schwantes, Gerr, and
Durand in the record, the [ULJ] did not find this credible.

Substantial record evidence supports the ULJ’s finding that Schwantes’s failure to provide
adequate notice was not caused by physical or mental illness.
III.
Minn. Stat. § 268.105, subd. 1a(a) (2016), states, “When the credibility of a witness
testifying in a hearing has a significant effect on the outcome of a decision, the [ULJ] must
set out the reason for crediting or discrediting that testimony.”

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Schwantes argues that the ULJ did not adequately set out the reasons for discrediting
Schwantes’s testimony that her inability to c ommunicate adequately was due to mental
illness or impairment. The ULJ stated:
When the evidence of extensive text communications, emails,
and testimony regarding conversations [is] considered, in
which Schwantes repeatedly communicated to Gerr and
Durand her appointment needs in advance of their scheduled
dates, the preponderance of the evidence does not support a
finding that Schwantes failed to communicate, by text, due to
a consequence of her anxiety and depression on April 22, 2016.

The ULJ also stated, “Schwantes’ failure to communicate punctually with Durand and Gerr
was not a consequence of her depression or anxiety disorders.”
Schwantes’s argument that the ULJ should have addressed her mental and physical
health issues is not persuasive. T he fact that Schwantes was able to communicate
effectively in so many situations was a sufficient basis for rejecting her claim that she was
not able to do so in others.
Schwantes argues that the ULJ erred in failing to state the reasons for crediting the
employer’s evidence that the sole reason for her discharge was her failure to provide
adequate notice of scheduled appointments. This finding reflects the ULJ’s overall
assessment of the evidence, not an assessment of witness credibility that had a signi ficant
effect on the ULJ’s decision.
Affirmed.