Jennifer Esposito, Relator,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A24-1058

Jennifer Esposito,
Relator,

vs.

W. Peyton Company,
Respondent,

Department of Employment and Economic Development,
Respondent.

Filed September 15, 2025
Affirmed
Wheelock, Judge

Department of Employment and Economic Development
File No. 50222905-3

Jennifer Esposito, Hopkins, Minnesota (pro se relator)

W. Peyton Company, Edina, Minnesota (respondent employer)

Melannie M. Markham, Keri A. Phillips, Minnesota Department of Employment and
Economic Development, St. Paul, Minnesota (for respondent department)

Considered and decided by Wheelock, Presiding Judge; Ross, Judge; and Connolly,
Judge.
NONPRECEDENTIAL OPINION
WHEELOCK, Judge
Relator challenges an unemployment-law judge’s determination that she committed
employment misconduct and that she must return unemployment benefits she received,
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arguing that she did not commit employment misconduct and that the findings of the
unemployment-law judge (ULJ) are not supported by the record. We affirm.
FACTS
Respondent W. Peyton Company (Great Clips) terminated relator Jennifer
Esposito’s employment after she arrived late to work on multiple occasions without a valid
excuse. Esposito has health conditions that frequently caused her to be late for, or absent
from, scheduled work , which incidents of tardiness or absence Great Clips excused.
However, Great Clips terminated Esposito’s employment on December 21, 2023, for
unexcused incidents of tardiness and early departures.
After Great Clips terminated Esposito’s employment, she applied for
unemployment benefits with respondent Minnesota Department of Employment and
Economic Development (DEED) , which initially determined that Great Clips did not
discharge Esposito for employment misconduct and that Esposito was therefore eligible
for unemployment benefits. But Great Clips appealed DEED’s determination, and the
matter was scheduled for a telephone hearing before a ULJ. Esposito’s notice of hearing
stated that, “[i]f the [ULJ’s] decision holds you ineligible for benefits that have already
been paid, you will be overpaid. Overpaid benefits must be repaid and may be recovered
by legal action.” Esposito and Great Clips’ relevant HR director, A.B., appeared for
Esposito’s telephone hearing. The following factual summary is based on the testimony
and exhibits received at that hearing.
A.B. began her testimony by explaining that Esposito was not excused for being late
for work on three occasions in October and November 2023. First, on October 27, Esposito
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needed to pick up a new hair clipper and claimed that, upon her arrival at the supply
warehouse, she discovered that the supplier had made a mistake in her order, causing her
to be delayed. A.B. testified that Esposito texted her “team 41 minutes after her shift
started,” explaining that she would be late. Second, on November 21, Esposito was late
because she slept through her alarm. Third, on November 22, Esposito was late because
her alarm did not sound.
A.B. testified that, on each of these occasions, Esposito informed Great Clips of the
time she would arrive but then arrived significantly later than when she had estimated. Due
to these “reliability issues,” Great Clips gave Esposito a “final warning” on November 23;
yet Esposito proceeded to leave work early on December 7 without permission. Finally,
on December 19, Esposito asked to start her shift at 12:30 rather than 12:00 because her
cat was sick. At almost 1:00 that day, management checked in with Esposito regarding
whether she had arrived. Esposito had not arrived yet, but she arrived by 1:17.
A.B. testified that, throughout October and November, “there were multiple
discussions, verbal discussions that happened” between Great Clips and Esposito about her
timeliness. However, A.B. confirmed that Esposito’s only written warning was posted on
Esposito’s Paylocity account. Paylocity is a payment application accessible via mobile
phone; A.B. testified that “Paylocity is our means of communication within the company.”
A.B. also provided that the expectation for when an employee cannot make a shift is for
the employee to alert a manager via phone call or text before the shift starts. A.B. further
explained that, “in most cases, we do ask that people find somebody else to work their
shift.” Finally, she provided that, “[a]nytime that you just don’t show up for a shift and
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don’t alert the manager, that’s considered a ‘no call, no show,’ and that could lead to . . .
termination of your position.”
A.B. shared that Esposito “was great when she was” at work and confirmed that
there were no other reasons for her “discharge other than attendance and reliability.” A.B.
testified that Great Clips excluded from the reasons for Esposito’s termination the
“numerous other dates” when Esposito had communicated that she was sick or her absence
was accompanied by a doctor’s note.
Esposito explained to the ULJ that, on December 7, she departed from work early
to meet some movers she had hired. Esposito testified that the movers arrived at her
residence earlier than she anticipated they would. She maintained that a coworker who
was “not really technically a manager” permitted her to depart early.
The ULJ concluded that Great Clips discharged Esposito for employment
misconduct and that Esposito had received an overpayment of unemployment benefits from
DEED in the amount of $1,230. The ULJ based their findings of fact on Esposito’s and
A.B.’s testimony, crediting A.B.’s testimony over Esposito’s where their accounts
diverged because “[A.B.]’s testimony . . . was more specific and supported by business
records.”
Esposito appeals.
DECISION
Esposito argues that she should not be required to repay the unemployment benefits
that she received, maintaining that she did not engage in employment misconduct. She
also challenges two of the ULJ’s factual determinations, arguing that the ULJ erroneously
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found that she overslept on two days— November 21 and 22— and that the ULJ erroneously
recounted how long it took her to pick up her replacement clipper. DEED argues that
substantial evidence supports the ULJ’s findings and that Great Clips terminated Esposito
for employment misconduct.
The Minnesota Unemployment Insurance Law (MUIL), Minn. Stat. §§ 268.001-.23
(2024), establishes and governs Minnesota’s unemployment insurance program. This court
may affirm, remand, reverse, or modify a ULJ’s decision under the MUIL “if the
substantial rights of the petitioner may have been prejudiced.” Minn. Stat. § 268.105,
subd. 7(d). Subdivision 7(d) further provides that a petitioner’s substantial rights may be
prejudiced if the ULJ’s decision was
(1) a 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
hearing record as submitted; or
(6) arbitrary or capricious.

Id. “We review de novo a ULJ’s determination that an applicant is ineligible for
unemployment benefits. And we review findings of fact in the light most favorable to the
ULJ’s decision and will rely on findings that are substantially supported by the record.”
Fay v. Dep’t of Emp. & Econ. Dev., 860 N.W.2d 385, 387 (Minn. App. 2015) (quotation
omitted). Appellate courts defer to a ULJ’s credibility determinations. Skarhus v.
Davanni’s Inc., 721 N.W.2d 340, 344 (Minn. App. 2006).
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Appellate courts review de novo whether an act or acts committed by an employee
constitute employment misconduct. Id. Minnesota Statutes section 268.095,
subdivision 6(a), defines employment misconduct as “any intentional, negligent, or
indifferent conduct, on the job or off the job, that is a serious violation of the standard of
behavior the employer has the right to r easonably expect of the employee.” Whether an
employee’s absenteeism amounts to employment misconduct depends on the
circumstances of the case. Stagg v. Vintage Place, 796 N.W.2d 312, 316-17 (Minn. 2011)
(holding that employee discharged for excessive absenteeism and tardiness committed
employment misconduct).
Esposito argues that the ULJ erroneously found that she did not have a valid excuse
for her tardiness on both November 21 and 22. DEED argues the contrary. A.B. testified
that Esposito was late on November 21 because she slept through her alarm. A.B. also
testified that Esposito was late on November 22 because her alarm did not sound.
The ULJ based its findings of fact on Esposito’s and A.B.’s testimony, crediting
A.B.’s testimony over Esposito’s when their accounts diverged. Moreover, A.B. submitted
two screenshots of text messages from Esposito on November 21 and 22 in which Esposito
stated, respectively, that she slept through her alarm and that her “alarm didn’t go off at
all.” Because evidence in the record supports the ULJ’s findings, we reject Esposito’s
argument that the ULJ erred in making them.
Esposito also argues that the ULJ erroneously recounted how long it took her to get
a replacement clipper on October 27. She claims that when her “clipper broke in the middle
of [her] shift [she] borrowed a co-worker’s clipper until she was able to get a replacement
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order placed and ready for pick up at the warehouse the following morning.” During the
telephone hearing with the ULJ, Esposito testified that she thought her clipper broke one
or two days before she went to the warehouse. Despite receiving no contrary evidence on
the point, the ULJ found that Esposito’s clipper had been broken for “several” shifts.
Because it is not clear whether the ULJ’s finding is inconsistent with the evidence,
we assume, without deciding, that ULJ’s finding is not substantially supported by the
record. Even so, Esposito has not shown that any error affected her substantial rights. This
court “may reverse or modify the decision [of a ULJ] if the substantial rights of the
petitioner may have been prejudiced.” Minn. Stat. § 268.105, subd. 7(d). Although the
ULJ erroneously found that Esposito’s clipp er had been broken for several shifts, this
finding did not weigh heavily in the ULJ’s employment-misconduct determination. Rather,
the ULJ referenced this incident as one out of at least five incidents of tardiness or absence
that could have been prevented or mitigated through planning.
Esposito argues that the ULJ erroneously found that she committed employment
misconduct because “[e]very single tardiness or absence was unpreventable and
unforeseen.”
In their decision, the ULJ observed that “Great Clips has a reasonable expectation
that employees come to work when scheduled, absent an emergency or compelling reasons,
and communicate about missed work.” T he ULJ identified at least five instances of
unexcused early departures or late arrivals to work:
• late for work on October 27 due to not having clippers;
• late for work on November 21 due to missing her alarm;
• late for work on November 22 due to missing her alarm;
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• absent at the end of her shift because she left work early on
December 7 to meet with movers; and
• late for work on December 19 because her cat was sick.

Because evidence in the record supports the ULJ’s findings and unexcused absences can
constitute employment misconduct, we conclude that the ULJ properly determined that
Great Clips discharged Esposito for employment misconduct.
An employee who is discharged for employment misconduct is ineligible for
unemployment benefits. Minn. Stat. § 268.095, subd. 4(1). When there is a determination
that an applicant is ineligible for unemployment benefits for periods the applicant has been
paid benefits, there is an overpayment of those unemployment benefits. Minn. Stat.
§ 268.101, subd. 6. Applicants must repay any “overpayments” they receive:
Any applicant who (1) because of a determination or amended
determination issued under section 268.07 or 268.101, or any
other section of this chapter, or (2) because of an
unemployment law judge’s decision under section 268.105,
has received any unemployment benefits that the applicant was
held not entitled to, is overpaid the benefits, and must promptly
repay the benefits to the trust fund.

Minn. Stat. § 268.18, subd. 1; see also Appelhof v. Comm’r of Jobs & Training,
450 N.W.2d 589, 591-92 (Minn. App. 1990) (concluding that a “subsequent determination
which denies benefits already paid is considered an overpayment, subject to Minn. Stat.
§ 268.18,” and therefore the relator was “required to repay the benefits he erroneously
received”).
The ULJ concluded that Great Clips discharged Esposito due to employment
misconduct. The ULJ reasoned that Esposito’s unexcused late arrivals to and early
departures from work on October 27, November 21, November 22, December 7, and
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December 19 were “preventable with planning” and “could have been avoided or
expected.” The ULJ observed that “Great Clips has a reasonable expectation that
employees come to work when scheduled, absent an emergency or compelling reasons,
and communicate about missed work.” The ULJ thus determined that Esposito received
$1,230 in overpayment of unemployment benefits.
Esposito argues that she should not have to repay the overpayment because it “feels
cruel.” While we acknowledge that Esposito has faced challenges due to her health
conditions and unexpected personal events, she provides no legal authority upon which this
court could waive her overpayment. Arguments “ based on mere assertion and not
supported by any argument or authorities in appellant’s brief [are] waived and will not be
considered on appeal unless prejudicial error is obvious on mere inspection.” Schoepke v.
Alexander Smith & Sons Carpet Co., 187 N.W.2d 133, 135 (Minn. 1971). And “[t]here is
no equitable or common law denial or allowance of unemployment benefits.” Minn. Stat.
§ 268.069, subd. 3. Therefore, the ULJ did not err in ordering Esposito to return her
overpayment.
Affirmed.