Latonia Rolbiecki, 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This opinion will be unpublished and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
A17-1531

Latonia Rolbiecki,
Relator,

vs.

Regions Hospital,
Respondent,
Department of Employment and Economic Development,
Respondent.

Filed June 11, 2018
Affirmed
Florey, Judge

Department of Employment and Economic Development
File No. 35688007-3

Latonia Rolbiecki, Coon Rapids, Minnesota (pro se relator)

Regions Hospital, St. Paul, Minnesota (respondent employer)

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

Considered and decided by Rodenberg, Pr esiding Judge; Jesson, Judge; and Florey,
Judge.
U N P U B L I S H E D O P I N I O N
FLOREY, Judge
Relator challenges a determination, on re consideration, by an unemployment-law
judge (ULJ) that relator is ineligible for unemploymen t benefits because she was

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discharged for employment misconduct. She asserts that respondent-employer should not
have discharged her because the employment absence that resulted in her final warning
was covered by the federal Family and Medica l Leave Act (FMLA), 29 U.S.C. §§ 2601-
54 (2012), and therefore her subsequent absenc e should have resulted in a final warning
instead of discharge. We affirm.
FACTS
Relator Latonia Rolbiecki worked for respondent Regions Hospital (Regions)
between December 2013 and June 2017. She worked abou t 32 hours per week as a
laboratory-services technician, generally from 6:00 a.m. to 2:30 p.m. During her
employment, relator took intermittent leave under the FMLA.1 However, she had a number
of attendance infractions separate and apart from her FMLA leave.
On September 1, 2016, relator received a written warning regarding her attendance.
The warning stated that she had 5 1/3 “uns cheduled occurrences” in the preceding 12
months. Relator was late for work or had an unexcused absence on 10 occasions in the 12
months preceding that warning, excluding FMLA absences. After her warning, she was
informed that she need ed to contact the person in charge of her shift and the FMLA
administrator before a scheduled shift if she intended to have time covered by the FMLA.
On March 4 and 5 of 2017, relator’s daughter went to the emergency room. Relator
was scheduled to work on March 5, but she did not appear for her shift. Relator intended

1 The FMLA “entitles eligible employees to take up to 12 work weeks of unpaid leave per
year” for specified family and medical reasons. Coleman v. Court of Appeals of Md., 566
U.S. 30, 34, 132 S. Ct. 1327, 1332 (2012).

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to have her absence covered by the FMLA a nd was capable of giving Regions notice.
However, she did not give notice prior to her shift on March 5. On March 16, 2017, relator
was issued a final written warning stating that she had 7 2/3 “occu rrences” following her
warning in September. The final warning st ated that one more no call/no show would
result in termination. On May 29, 2017, rela tor did not show up fo r work. She called a
couple of hours after her shift had begun. Sh e claimed that she had overslept because of
medication. She was terminated on June 2, 2017.
Relator applied for unemployment benefits and was determined ineligible because
she was discharged for employment misconduct . She appealed that determination. An
evidentiary hearing was held be fore a ULJ. A number of exhibits were admitted, and
testimony was received from relator, a human-re sources employee, a nd relator’s direct
supervisor. The ULJ issued a decision denying relator unemployment benefits because her
discharge was based on employment misconduct. The ULJ found that medication did not
cause relator to oversleep on May 29. Relator sought reconsid eration. Both relator and
Regions submitted additional documents.
On August 30, 2017, the ULJ affirmed the prior decision. The ULJ acknowledged
that relator provided additional evidence showing that her March 5 absence was later
deemed by Regions to be covered by the FM LA. But, the ULJ determined that the
additional evidence would not be admitted because it did not sh ow that relator “provided
proper notice for that absence.” See Minn. Stat. § 268.105, subd. 2(c) (2016) (stating that
in deciding a request for reconsideration, th e ULJ “must not consider any evidence that
was not submitted at the hearing, except for purposes of dete rmining whether to order an

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additional hearing”). The ULJ determined that the additional evidence would not change
the outcome of the proceedings. This certiorari appeal followed.
D E C I S I O N
When reviewing a ULJ’s decision, this court may affirm, remand the case for further
proceedings, or reverse and modify the decision if the substantial rights of the relator have
been prejudiced because, among other things, the decision is arbitrary or unsupported by
substantial evidence. Minn. Stat. § 268.105, subd. 7(d) (2016).
An applicant who is discharged for em ployment misconduct is ineligible for
unemployment benefits. Minn. Stat. § 268. 095, subd. 4(1) (2016). Employment
misconduct is defined, in part, as “intentional, negligent, or indifferent conduct, on the job
or off the job that displays clearly . . . a seri ous violation of the sta ndards of behavior the
employer has the right to reasonably expect of the employee.” Minn. Stat. § 268.095, subd.
6(a) (2016). “Whether an employee’s abse nteeism and tardiness amounts to a serious
violation of the standards of behavior an em ployer has a right to expect depends on the
circumstances of each case.” Stagg v. Vintage Place Inc. , 796 N.W.2d 312, 316 (Minn.
2011).
Determining whether an employee’s conduct disqualifies the employee from
unemployment benefits presents a mixed question of fact and law. Id. at 315. Whether an
employee committed a particular act is a question of fact viewed in the light most favorable
to the ULJ’s decision and affirmed if supported by substantial evidence. Skarhus v.
Davanni’s Inc. , 721 N.W.2d 340, 344 (Minn. App. 2006). Whether certain findings

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establish employment misconduct is a question of law, which we review de novo.
Cunningham v. Wal-Mart Assocs., Inc., 809 N.W.2d 231, 235 (Minn. App. 2011).
Relator asserts that her conduct does not qualify as employment misconduct because
Regions approved her March 5 leave under the FMLA. The ULJ co nsidered relator’s
argument and concluded that, regardless of whether her absence was ultimately covered by
the FMLA, she failed to give notice prior to her March 5 shift that she would be using the
FMLA. Relator acknowledged at the evidentiary hearing that she did not give notice to
her employer until after her March 5 shift ha d begun, and she did not contact the FMLA
administrator until March 6 or 7 to give no tice that she intended to have her March 5
absence covered by the FMLA. The record therefore supports the ULJ’s finding that relator
failed to give notice.
Relator had ongoing attendance issues resu lting in her being issued at least two
written warnings. She was informed that she needed to give prior notice if she intended to
use the FMLA. She failed to do so on March 5 and recei ved a final warning, which
indicated that “[o]ne more event of no call/no show will result in termination.” Relator did
not show for her shift on May 29, 2017, and she did not call until a couple hours after her
shift had begun. This court has previous ly held that “excep t in certain limited
circumstances, an employee engages in miscondu ct if [she] is absent even once without
notifying [her] employer.” Del Dee Foods, Inc. v. Miller , 390 N.W.2d 415, 418 (Minn.
App. 1986); see Evenson v. Omnetic’s, 344 N.W.2d 881, 883 (Minn. App. 1984) (holding
that repeated tardiness, pa rticularly when co mbined with warni ngs, is employment
misconduct). We conclude that relator’s conduct constitutes employment misconduct.

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Relator sought reconsideration of the ULJ’s determination. The ULJ concluded that
his prior decision was “factually and legally correct” and that a further hearing was not
warranted because, despite the fact that relator’s March 5 absence was later deemed to be
covered by the FMLA, relator failed to gi ve notice prior to her absence. On
reconsideration, a ULJ is not required to hold an additional hearing to consider additional
evidence if that evidence would not change the outcome of the ULJ’s decision. Minn. Stat.
§ 268.105, subd. 2(c). “A reviewing court accords deference to a ULJ’s decision not to
hold an additional hearing and will reverse that decision only for an abuse of discretion.”
Davanni’s Inc., 721 N.W.2d at 345. Despite relato r’s additional evidence, her repeated
attendance infractions and failure to fo llow her employer’s reasonable FMLA policy
constitutes employment misconduct. The ULJ did not abuse his discretion by refusing to
hold an additional hearing or by reaffirming his previous decision to deny relator
unemployment benefits.
Affirmed.