Kristin K. Choronzy, Relator,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0929

Kristin K. Choronzy,
Relator,

vs.

Viracon, Inc. (1995) (Joint Account),
Respondent,

Department of Employment and Economic Development,
Respondent.

Filed April 8, 2019
Affirmed
Schellhas, Judge

Department of Employment and Economic Development
File No. 35331450-6

Benjamin L. Weiss, Southern Minnesota Regional Legal Services, Inc., St. Paul, Minnesota
(for relator)

Meghan Marie Elliott, Owatonna, Minnesota (for respondent employer)

Lee B. Nelson, Anne Froelich, St. Paul, Minnesota (for respondent department)

Considered and decided by Schellhas, Presiding Judge; Slieter, Judge; and Stauber,
Judge.*

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
SCHELLHAS, Judge
Relator challenges an unemployment-law judge’s decision that she is ineligible for
unemployment benefits. We affirm.
FACTS
Relator Kristin Choronzy worked full -time at respondent Viracon Inc., a laminate -
glass manufacturer, from January 2015 to January 20 , 2017. Viracon terminated
Choronzy’s employment for violating its attendance policy.
Under a policy contained in a written employee handbook, Viracon assigned four
attendance points to employees who missed a shift after providing their supervisor advance
notice of their anticipated absence. The “Attendance Disciplinary Procedure,” contained in
Viracon’s employee handbook stated that Viracon would terminate an employee who
received 30 attendance points within a 12 -month cycle. Viracon gave vacation time to
employees and required that employees’ vacation requests be made at least 24 hours in
advance and “ be approved” by the employees’ supervisor. For emergenc ies, the 24-hour
notice could be “waived at a supervisor’s discretion.” Viracon also gave employees
personal-holiday time (PTO) to use without advance permission.
As of January 15, 201 7, Choronzy had received 28 attendance points. On January
16 and 17, Choronzy did not show up for her scheduled shifts because she was in jail on a
charge of fifth-degree assault.1 Prior to the start of the January 16 shift, Choronzy’s sister,

1 On January 1 3, 201 7, police officers arrested Choronzy, and the State of Minnesota
charged her with unlawful use of a stun gun.

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Amy Day, e-mailed Choronzy’s supervisor, Steve Britt, to inform him that Choronzy had
been arrested the previous night and wanted to use PTO to cover her January 16 shift and
vacation time for her January 17 shift. Britt responded , “ok got it.” Viracon applied
Choronzy’s remaining PTO to her January 16 absen ce. B ut Viracon did not approve
Choronzy’s use of vacation time for her absence on January 17 and gave her four
attendance points for the absence. Viracon terminated Choronzy’s employment because
she received 30 attendance points within a 12-month cycle.
Choronzy applied for unemployment benefits, and respondent Minnesota
Department of Employment and Economic Development (DEED) determined that she was
ineligible for benefits. Choronzy appealed the determination. After a hearing, an
unemployment-law judge (ULJ) decided that Choronzy was ineligible for benefits because
Viracon terminated her employment due to her employment misconduct . Choronzy
appealed to this court , and this court concluded that “the ULJ did not fulfill the duty to
develop the record ,” in part, because the ULJ failed to enter into evidence Viracon’s
attendance policy. Choronzy v. Viracon, Inc. , No. A17-1018, order op. at 3 (Minn. App.
Mar. 7, 2018) (Choronzy I). Based on the “inadequate record,” this court remanded for the
ULJ to “consider whether [Choronzy] had vacation or personal time available to cover her
absence on January 17,” and, if so, whether Viracon’s policy prevented her from using it
to cover her absence while in jail. Id. at 4.
On remand, the ULJ received into evidence Viracon’s employ ee handbook, the
time-off request from Day, Choronzy’s attendance records, and testimony from Choronzy,
her supervisor, Viracon’s human-resources manager (the HR manager), and Day. The ULJ

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concluded that Choronzy committed employment misconduct because her “conduct that
led to her discharge displayed clearly a serious violation of Viracon’s reasonable
expectations” because her “own actions [] resulted in her arrest,” and her January 17
absence “was not approved,” causing her to reach “the maximum number of allowed
attendance points.” Choronzy requested reconsideration, and the ULJ affirmed.
This certiorari appeal follows.
D E C I S I O N
When reviewing the decision of a ULJ, this court may affirm or remand for further
proceedings; or it may reverse or modify the decision if a relator’s substantial rights were
prejudiced because the findings, inferences, conclusion, or decision are: “(1) in violation
of constitutional provisions; (2) in excess of the statutory authority or jurisdiction of the
department; (3) made upon unlawful procedure; (4) affected by other error of law;
(5) unsupported by substantial evidence in view of the en tire record as submitted; or
(6) arbitrary or capricious.” Minn. Stat. § 268.105, subd. 7(d) (2018). “This court reviews
a ULJ’s findings of fact in a light most favorable to the decision, and will not disturb the
findings so long as there is evidence in t he record that substantially supports them.”
Gonzalez Diaz v. Three Rivers Cmty. Action, Inc. , 917 N.W.2d 813, 815 –16 (Minn. App.
2018).
An employee discharged for employment misconduct is ineligible to receive
unemployment benefits. Minn. Stat. § 268.095, subd. 4 (2018). Whether an employee
engaged in employment misconduct is a mixed question of law and fact. Wilson v. Mortg.
Res. Ctr., Inc. , 888 N.W.2d 452, 460 (Minn. 2016). Whether a particular act constitutes

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misconduct is a question of law this court review s de novo. Id. Whether the employee
committed an act is a question of fact. Skarhus v. Davanni’s Inc. , 721 N.W.2d 340, 344
(Minn. App. 2006).
I. Choronzy’s commission of employment misconduct
Choronzy argues that the ULJ erroneously determined that she committed
employment misconduct. “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). A “decision to violate knowing ly a reasonable policy
of the employer is misconduct,” which is “particularly true when there are multiple
violations of the same rule involving warnings or progressive discipline.” Schmidgall v.
FilmTec Corp. , 644 N.W.2d 801, 806 –07 (Minn. 2002). “Whether an employee’s
absenteeism and tardiness amounts to a serious violation of the standards of behavior an
employer 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).
Here, the ULJ concluded that Choronzy’s unexcused absence violated Viracon’s
attendance policy and constituted employment misconduct because she already had
accumulated 28 attendance points , her final absence caused her to exceed 30 points, and
her final absence resulted from her own actions that were within her control. In Stagg, the
supreme court concluded that an employee’s multiple absen ces constituted misconduct as
a serious violation of the standards of behavior that the employer had a right to reasonably
expect, w here t he employer had an attendance policy that resulted in an employee’s
discharge following the fifth policy violation. Id. at 314. The supreme court, after

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reviewing the attendance policy and finding that it was reasonable, concluded that the
employer discharged the employee for misconduct because the record supported the ULJ’s
findings that the employee knew about the policy, the purpose for it, and that he had to
comply by it and had violated it five times. Id. at 316.
Similarly, here, Viracon had an attendance policy that provided for progressive
discipline, resulting i n termination after an employee receive d 30 attendance points. See
Cunningham v. Wal -Mart Assocs., Inc. , 809 N.W.2d 231, 235 (Minn. App. 2011)
(“Minnesota law allows an employer to esta blish and enforce reasonable rules governing
employee absences.”). At the first hearing before the ULJ, Choronzy admitted that she
knew about Viracon’s policy and knew that another violation could lead to termination.
And Choronzy’s supervisor did not appr ove her vacation-time request for January 17,
2018. At the hearing on remand, Viracon’s HR manager testified about, and Choronzy’s
attendance records show, multiple attendance absences by Choronzy before her absence on
January 17, for which she did not have approval to use vacation time. The ULJ found
Viracon’s evidence more credible than Choronzy’s testimony because the information
formed “a more logical chain of events.” But this does not end our inquiry.
Choronzy argues that the ULJ improperly based its decision on the details of her
arrest. In finding employment misconduct, a ULJ must rely on the actual reasons for
discharge. Hansen v. C.W. Mears, Inc. , 486 N.W.2d 776, 780 (Minn. App. 1992), review
denied (Minn. July 16, 1992). But u nder Jenkins v. Am. Express Fin. Corp., when an
employee’s absence due to incarceration leads to termination, “the inquiry must focus on
the facts in th[e] particular case,” to determine if the employee’s absence rises to

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employment misconduct. 721 N.W.2d 286, 291 (Minn. 2006) . In Jenkins, an employer
terminated an employee’s employment for missing work due to incarceration following the
employer’s failure to verify employment status to a workhouse. Id. at 28 8. The supreme
court held that an absence due to incarceration was not per se employment misconduct and
instructed courts to examine the underlying circumstances when incarceration causes an
absence. Id. at 291 –92. The supreme court concluded that under the “unique facts ”
presented, the employee did not commit employment misconduct because she “engaged in
significant attempts to report for work and continue her employment” and therefore did not
show “a substantial lack of concern for her employment.” Id. at 287, 292. But the supreme
court stated that its decision did not “ preclude employers from claiming misconduct
because an employee was in jail.” Id. at 292.
Choronzy’s circumstances are distinguishable from the “unique facts” in Jenkins.
Despite knowing that another attenda nce violation could lead to her termination and that
she had only enough PTO to cover a single absence , Choronzy provoked a confrontation
in another person’s home, which she visited without invitation. After she twice used a stun
gun on the home’s occupant in an attempt to recover a ring, police arrested her and she was
charged with fifth -degree assault. While Choronzy testified that she used the stun gun in
self-defense, the ULJ found her testimony not credible.
Minnesota law excludes from the definition o f employment misconduct “conduct
an average reasonable employee would have engaged in under the circumstances.” Minn.
Stat. § 268.095, subd. 6(b)(4) (2018). Choronzy argues that regardless of the cause of her
absence, she acted as a reasonable employee wou ld have acted under the circumstances .

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We disagree. A reasonable employee would not go to a person’s home uninvited for the
purpose of confronting an occupant and use a stun gun twice on the occupant. A reasonable
person would know that the conduct could reasonably lead to an arrest that would result in
missing work. In Choronzy’s case, she knew that another unexcused absence could lead to
employment termination. The ULJ found that Choronzy’s claim that she was not the cause
of her arrest not credible, and we will not disturb that credibility determination on appeal.
See Bangtson v. Allina Med. Grp., 766 N.W.2d 328, 332 (Minn. App. 2009) (“Credibility
determinations are the exclusive province of the ULJ and will not be disturbed on appeal.”
(quotation omitted)); cf. Winkler v. Park Refuse Serv., Inc. , 361 N.W.2d 120, 124 (Minn.
App. 1985) (concluding that employee committed misconduct by missing work after arrest
on outstanding warrant where he knew about warrant and own actions led to arrest).
Choronzy argues that, prior to January 16, 2018, Viracon erroneously assigned her
attendance points for absences covered by the Family and Medical Leave Act (FMLA) .
Minnesota law excludes from the definition of employment misconduct “absence, with
proper notice to the employer, in order to provide necessary care because of the illness,
injury, or disability of an immediate family member of the applicant.” Minn. Stat.
§ 268.095, subd. 6(b)(8) (2018). But an assignment of error based on “mere assertion,” and
not supported by argument or authority is waived unless prejudicial error is obvious on
“mere inspection.” Schoepke v. Alexander Smith & Sons Carpet Co., 187 N.W.2d 133, 135
(Minn. 1971). Choronzy fails to explain to which absences Viracon allegedly erroneously
assigned her attendance points. And the HR manager’s testimony directly refutes
Choronzy’s argument, testifying that “none of the dates that [Choronzy] had actually called

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in because of FMLA were ever assigned [attendance] points.” Because no prejudicial error
is obvious on mere inspection, we reject this argument.
The ULJ concluded that Choronzy committed employment misconduct by “looking
at the circumstances as a whole,” which included “reach[ing] the maximum number of
allowed attendance points.” Viracon’s HR manager stated that Choronzy was “discharged
because she met the maximum number of points allowed on the attendance policy.” The
record supports the ULJ’s findings regarding the events that occurred prior to Choronzy’s
termination. We conclude that the ULJ did not err in concluding that Choronzy committed
employment misconduct when she was absent from work on January 17, 2018, without
prior approval to take vacation for the day. S ee Stagg, 796 N.W.2d at 317 (concluding
repeated attendance -policy violat ions amounted to employer misconduct); Petracek v.
Univ. of Minn., 780 N.W.2d 927, 930 (Minn. App. 2010) (concluding that ULJ did not err
in determining that relator did not have “good cause” to miss hearing due to arrest , and in
failing to provide evidence showing arrest was not his fault); cf. Hanson v. Crestliner, Inc.,
772 N.W.2d 539, 544 (Minn. App. 2009) (concluding that employee did not commit
misconduct where absence from work without notice was due to unexpected hospitalization
of an immediate family member).
II. The ULJ’s compliance with remand instructions
Choronzy argues that the ULJ deviated from this court’s remand instruction s. “On
remand, a [decision-maker] must ‘execute a reviewing court’s mandate strictly according
to its terms’ and lacks power to ‘alter, amend, or modify that mandate.’” Rooney v. Rooney,
669 N.W.2d 362, 371 (Minn. App. 2003) ( quoting Halverson v. Vill. of Deerwood, 322

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N.W.2d 761, 766 (Minn. 1982)), review denied (Minn. Nov. 25, 2003). “Appellate courts
review . . . compliance with remand instructions under the deferential abuse of discretion
standard.” Leiendecker v. Asian Women United of Minn., 895 N.W.2d 623, 633 (Minn.
2017) (quotation omitted).
In its March 7, 2018 order opinion, this court stated:
On remand, the ULJ must consider whether relator had
vacation or personal time available to cover her absence on
January 17. If she did, is there anything in Viracon’s policy that
would have prevent ed her from using that time for absence
while in jail? If relator did have vacation or personal time
available to cover January 17, and there is no policy against
using that time to cover her time in jail, relator’s absence
following the approval of her employer is not employment
misconduct.
Choronzy I, order op. at 4. Choronzy argues that Choronzy I establishes as “law of the
case” that the ULJ could not base its decision on whether her actions led to her arrest.
“Law of the case applies when the appellate court has ruled on a legal issue and
remanded for further proceedings on other matters. The issue decided becomes ‘law of the
case’ and may not be relitigated in the [district] court or reexamined in a second app eal.”
Sigurdson v. Isanti County, 448 N.W.2d 62, 66 (Minn. 1989). In Sigurdson, an
employment-discrimination case was appealed three times , and the issue of whether the
complaint violated a statute of limitations was not litigated until the third appeal. Id. at 65.
The supreme court concluded that because neither of the two previous appeals “finally
concluded the lawsuit,” and no court had resolved the statute-of-limitations issue, “no law
of the case” existed. Id. at 66.

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Similarly, here, this court did not previously decide that the circumstances le ading
to Choronzy’s absence are irrelevant. Choronzy I only “observe[d]” that the ULJ “focused
too closely on whether [Choronzy]’s absence from work due to being in jail was or was
not avoidable .” This court did not determine as a matter of law that the circumstances
surrounding Choronzy’s incarceration were irrelevant; this court concluded that the record
was incomplete. Cf. Sylvester Bros. Dev. Co. v. Great Cent. Ins. Co. , 503 N.W.2d 793,
795–796 (Minn. App. 1993) (concluding that findings in second appeal following remand
to consider more evidence did not violate law-of-the-case doctrine), review denied (Minn.
Sept. 30, 1993). We conclude that the ULJ did not violate this court’s remand instructions
under the law-of-the-case doctrine.
Choronzy argues that the ULJ failed to make findings, as instructed on remand ,
regarding her available vacation time and whether Viracon’s policies prohibited her from
using it to cover her t ime in jail. We disagree. The ULJ’s order on remand summarizes
Viracon’s attendance policy, Choronzy’s vacation-time request, her lack of supervisor
approval to use vacation time, and her attendance records. We therefore conclude that the
ULJ complied with this court’s remand instructions.
Choronzy argues that the ULJ ’s finding regarding the lack of her supervisor’s
approval of her use of vacation time is beyond the scope of remand. A lower court “exceeds
its broad discretion on remand when it makes findings on a subject not included in the
appellate court’s remand instructions.” Leiendecker, 895 N.W.2d at 633. But here t he
remand instructions explicitly refer to “the approval of her employer,” as a prerequisite for
concluding whether Choronzy did commit employment misconduct and the need for

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findings on the issue. We conclude that t he ULJ did not err by disregarding this court’s
remand instructions.
III. Alleged legal and procedural errors by the ULJ
Choronzy argues that the ULJ made legal and procedural errors that require reversal.
She argues that the ULJ erred by admitting into evidence the police report from her arrest
and her criminal history as irrelevant and improper hearsay evidence. Choronzy’s argument
is unpersuasive. We have previously concluded that a ULJ can enter a police report to help
develop the record. See Vasseei v. Schmitty & Sons Sch. Buses Inc., 793 N.W.2d 747, 751
(Minn. App. 2010) (concluding that ULJ did not err in reopening record to admit police
report of incident that formed reason for discharge from employment).
Choronzy argues that the ULJ erred by independently obtaining her criminal record
and the police report . But the ULJ concluded that Choronzy committed employment
misconduct based on her violation of Viracon’s attendance policy. Any alleged error from
the ULJ’s independent investigation is therefore harmless because neither document
formed the basis for the conclusion that Choronzy committed employment misconduct. See
Kallio v. Ford Motor Co., 407 N.W.2d 92, 98 (Minn. 1987) (stating that “[a]lthough error
may exist, unless the error is prejudicial, no grounds exist for reversal”). And Choronzy’s
failure to raise this issue in Choronzy I further supports our disregard of this argument. See
Leiendecker, 895 N.W.2d at 633 (“If a party petitions for review, the party must bring all
claims then ripe in that petition for review or waive further review of such claims in our
court.” (quotation omitted)).

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Choronzy also argues that the ULJ’s “actions were arbitrary and capricious .” A
decision is arbitrary or capricious if it “represents the agency’s will and not its judgment.”
In re Review of 2005 Annual Automatic Adjustment of Charges for All Elec. & Gas Utils.,
768 N.W.2d 112, 118 (Minn. 2009). Choronzy cites the ULJ’s improper “prod d[ing]” of
her supervisor to testify about his denial of her vacation-time request. We disagree. By
questioning Choronzy’s supervisor, the ULJ merely performed his or her task as the main
factfinder on remand . See Minn. R. 3310.2921 (201 7) (stating that ULJ “may obtain
testimony and other evidence from department employees and any other person the judge
believes will assist the judge in reaching a proper result”). We therefore conclude that the
ULJ did not decide the case in an arbitrary and capricious manner, and we affirm the ULJ’s
decision.
Affirmed.