This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
Kathleen J. Plamann,
Mail Handling, Inc.,
Commissioner of Economic Security,
Filed May 2, 2000
Department of Economic Security
File No. 39799
Kathleen J. Plamann, 74751 275th Street, Dassel, MN 55325 (pro se relator)
Mail Handling, Inc., 7550 Corporate Way, Eden Prairie, MN 55344 (respondent)
Kent E. Todd, Minnesota Department of Economic Security, 390 North Robert Street, St. Paul, MN 55101 (for respondent Commissioner)
Considered and decided by Willis, Presiding Judge, Kalitowski, Judge, and Halbrooks, Judge.
U N P U B L I S H E D O P I N I O N
Pro se relator Kathleen J. Plamann appeals from the decision of the commissioner’s representative finding that she was discharged from her employment for misconduct that disqualified her from receiving reemployment-insurance benefits. We affirm.
Plamann began working for respondent Mail Handling, Inc., in March 1994. She was discharged from her position as production manager assistant in March 1999.
In April 1999, the Department of Economic Security issued a determination that Plamann was disqualified from receiving reemployment-insurance benefits because she was discharged for misconduct. A reemployment-insurance judge reversed in June 1999. The commissioner’s representative reversed the reemployment-insurance judge in August 1999, finding that Plamann was discharged for misconduct arising from excessive and unreported tardiness and absenteeism. Plamann appeals by writ of certiorari.
An individual who is discharged for misconduct is disqualified from receiving reemployment-insurance benefits. Minn. Stat. § 268.095, subd. 4(1) (1998). Whether an employee has engaged in disqualifying misconduct is a mixed question of fact and law. McCourtney v. Imprimis Tech., Inc., 465 N.W.2d 721, 724 (Minn. App. 1991).
We will not disturb the commissioner’s findings of fact when, viewing the evidence in a light most favorable to the decision, the findings are reasonably supported by the evidence. White v. Metropolitan Med. Ctr., 332 N.W.2d 25, 26 (Minn. 1983). The commissioner’s representative found that Plamann was discharged for chronic and excessive absenteeism and tardiness.
In April 1998, Plamann was told in an annual performance review that her attendance record was interfering with her job performance. In February 1999, Plamann was absent from work for two days and did not call in advance, as required by her employer, to report her absence and was as a result given a written warning that she must adhere to a set schedule and that any unexcused absence could result in her termination. Plamann’s attendance record did not improve. The commissioner’s representative found that (1) nine times in the final 15 days of her employment Plamann reported to work late without contacting her employer in advance or left work early and (2) on the day of her discharge she reported to work 20 minutes late without notifying her employer in advance. The record clearly supports the commissioner’s representative’s findings.
But whether the facts as found by the commissioner’s representative constitute disqualifying misconduct is a question of law, and we need not defer to the commissioner’s representative’s decision. Del Dee Foods, Inc. v. Miller, 390 N.W.2d 415, 418 (Minn. App. 1986) (citations omitted). Disqualifying misconduct includes
intentional conduct showing a disregard of * * * the employee’s duties and obligations to the employer * * * [and] negligent conduct by an employee demonstrating a substantial lack of concern for the employment.
Minn. Stat. § 268.095, subd. 6 (1998). The issue is not whether the employee was justifiably discharged by the employer. McCourtney, 465 N.W.2d at 724. Rather, the question is whether the employee’s conduct evinces “willful or wanton disregard for the employer’s interests or [is] conduct demonstrating a lack of concern by the employee for her job.” Feia v. St. Cloud State College, 309 Minn. 564, 565, 244 N.W.2d 635, 636 (1976); see McCourtney, 465 N.W.2d at 724.
In some circumstances, even a single absence without notifying the employer in advance can be disqualifying conduct. Del Dee Foods, 390 N.W.2d at 418; see Blau v. Masters Restaurant Assocs., Inc., 345 N.W.2d 791, 794 (Minn. App. 1984) (stating that single incident can be disqualifying misconduct if it represents significant disregard for employer’s expectations). Additionally, tardiness constitutes disqualifying misconduct when the employee fails to contact the employer in advance. Gustafson v. IRC Indus., 374 N.W.2d 594, 597 (Minn. App. 1985); McLean v. Plastics, Inc., 378 N.W.2d 104, 107 (finding disqualifying misconduct where employee was late 13 times in 12 months and had received two warnings) (Minn. App. 1985); c.f. St. Williams Nursing Home v. Koep, 369 N.W.2d 33, 34 (Minn. App. 1985) (finding no disqualifying misconduct where party was repeatedly absent because of family illness but notified employer prior to absences). We agree with the commissioner’s representative that Plamann’s absences and tardiness without advance notice to her employer demonstrate a lack of concern for her employment and constitute disqualifying misconduct.