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Walsh v. TLC Nursing Services of Roseville, Inc.

Court of Appeals of Minnesota

July 22, 2013

Amy Walsh, Relator,
v.
TLC Nursing Services of Roseville, Inc., Respondent, Department of Employment and Economic Development, Respondent.

UNPUBLISHED OPINION

Minnesota Department of Employment and Economic Development File No. 29793067-3

David H. Redden, Fabian, May & Anderson, PLLP, Minneapolis, Minnesota (for relator)

Jessica M. White, JW Legal Services, PA, Bloomington, Minnesota (for respondent TLC Nursing Services of Roseville, Inc.)

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

Considered and decided by Connolly, Presiding Judge; Rodenberg, Judge; and Huspeni, Judge. [*]

RODENBERG, Judge

Relator appeals from the determination of an unemployment law judge (ULJ) that she is ineligible for unemployment benefits because she was discharged for employment misconduct based on her failure to properly report an absence to her employer. We affirm.

FACTS

Relator Amy Walsh worked for respondent-employer TLC Nursing Services of Roseville Inc. from March 15, 2011, until she was discharged from employment on May 21, 2012. Following her discharge, relator applied for unemployment benefits. Relator's application was denied, and she sought review by a ULJ. A telephonic hearing was held on August 13–14, 2012, after which the ULJ decided that relator had been discharged for employment misconduct and is therefore ineligible for unemployment benefits. Relator filed a request for reconsideration. The ULJ affirmed the decision, but amended some of his factual findings.

The ULJ determined that much of the evidence presented at the hearing was not credible. The evidence that the ULJ determined was credible established that on May 17, relator's supervisor informed relator that certain critical work had to be completed before relator went home for the day. The supervisor stated that overtime had been approved, and explained that the task needed to be completed by midnight or the employer would be unable to make payroll. The supervisor and relator also discussed whether relator was suffering from work-related anxiety.

Later that day, relator told her supervisor that she was sick and needed to go home. The supervisor permitted relator to leave but instructed relator to hand-deliver a doctor's note to the office the following day justifying her departure.

Relator was scheduled to work on May 18. She did not call in or report for her shift. The employer's attendance policy states that, to notify the employer of an absence, employees must call the supervisor at home or by cellular phone at least one hour before the start of the shift. The policy provides that emails and texting are not allowed for reporting absences from work.

At 2:26 a.m. on May 18, relator sent an email to the supervisor's account stating that relator had tried to call the office telephone line but that the office voicemail did not pick up. Relator's email stated that she was still very sick and unable to work and that she would try calling the office later. Relator did not speak to anyone or leave any phone messages on May 18. The ULJ ...


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