This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).







Marian L. Schmidt,





Tennant Company,





Commissioner of Economic Security,



Filed May 23, 2000


Randall, Judge


 Department of Economic Security

Agency File No. 156499



Marian L. Schmidt, 11520 Park Drive, Rogers, MN  55374 (pro se relator)


Matthew E. Damon, Sandra L. Conroy, Halleland, Lewis, Nilan, Sipkins & Johnson, 220 South Sixth Street, Suite 600, Minneapolis, MN  55402-4501 (for respondent)


Kent E. Todd, Department of Economic Security, 390 North Robert Street, St. Paul, MN  55101 (for respondent Commissioner of Economic Security)


            Considered and decided by Anderson, Presiding Judge, Randall, Judge, and Schumacher, Judge.  


U N P U B L I S H E D   O P I N I O N



            Relator Marian L. Schmidt seeks review of a commissioner’s representative’s decision disqualifying her from receiving reemployment insurance benefits, arguing that she was not discharged from employment with respondent Tennant Company because of misconduct, but rather was fired because of a miscommunication over whether she had permission to leave work early.  We reverse.



            Schmidt worked as a full-time customer service representative for Tennant Company from December 1997 through May 5, 1999.  At Tennant Company, customer service representatives’ requests for vacation time were generally handled by e-mail to Robin Running, the customer service supervisor.

            On April 5, 1999, Schmidt e-mailed Running, requesting vacation time for Friday, April 30 and Monday, May 3, 1999, because her son was being confirmed and she anticipated having a house full of guests.  Running e-mailed Schmidt back, informing her that she could only have May 3 off. 

            On April 26, 1999, Schmidt went to Running and requested April 30 off.  Schmidt indicated that she really needed the day off because she was having company for her son’s confirmation.  Running told Schmidt that the day was already filled, but that she could possibly leave early if the phones were slow.  Later on that day, Schmidt sent Running an e-mail, which stated “I can start at 7:00 a.m. and work till 11 if that will help.”  Running replied by e-mail, “Let’s have you start at 8:00 and we will see how the morning goes then.”          

            On April 30, 1999, Schmidt reported to work at her normal 8:00 a.m. start time.  At 8:59 a.m., Running sent Schmidt an e-mail, which was entitled “FW: ABSENTEE LIST.”  This e-mail included the daily absentee list, but also stated “Marian, I will probably not be able to let you go early today.  We are very short staffed.  I will talk to you around lunch time.”  Schmidt did not open this e-mail.

            At 11:00 a.m., Schmidt went looking for Running, but could not find her because she was in a staff meeting.  At approximately 11:20 a.m., Schmidt approached Lynn Seifert, her lead customer service representative, and told her that Running had indicated that she could leave early if the phones were not busy.  By this time the phones had slowed down and Seifert said, “Okay, go.”  As a lead customer service agent, Seifert was not a manager and did not technically have authority to grant employees vacation requests; however, on a previous occasion Seifert had allowed Schmidt to leave early when her daughter was ill. 

            On May 5, 1999, when Schmidt returned to work, Tennant discharged her for leaving work without permission.  Schmidt filed for reemployment insurance with the Department of Economic Security.  A department claims representative determined that Schmidt was not disqualified from receiving reemployment insurance benefits because Tennant Company discharged her from employment for reasons other than employment misconduct.  Tennant appealed this decision.  Following an evidentiary hearing, the reemployment insurance judge reversed the department claims representative, concluding that Schmidt was discharged because of misconduct that interfered with and adversely affected the employment.  Schmidt appealed to the commissioner’s representative, who affirmed the reemployment judge’s decision denying Schmidt benefits because she was discharged for misconduct.



            This court reviews the decision of the commissioner’s representative rather than that of the reemployment insurance judge.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  The commissioner’s representative’s determination that an employee committed misconduct is a mixed question of fact and law.  Colburn v. Pine Portage Madden Bros., Inc., 346 N.W.2d 159, 161 (Minn. 1984).  The representative’s factual findings must “be viewed in the light most favorable to the decision, and if there is evidence reasonably tending to sustain them, they will not be disturbed.”  White v. Metropolitan Med. Ctr., 332 N.W.2d 25, 26 (Minn. 1983) (citation omitted).  Whether those findings support a misconduct determination is a question of law subject to de novo review.  Cook v. Playworks, 541 N.W.2d 366, 368 (Minn. App. 1996). 

            Schmidt argues that she was not terminated by Tennant because of disqualifying misconduct, but rather was let go because of a miscommunication over whether she had been given permission to leave work early.

An employee who is discharged for misconduct that interferes with or adversely affects her employment is disqualified from receiving reemployment insurance benefits.  Minn. Stat. § 268.095, subd. 4(1) (1998).  Misconduct is intentional conduct showing a disregard of:

(1) the employer’s interest;

(2) the standards of behavior that an employer has the right to expect of the employee; or

(3) the employee’s duties and obligations to the employer.


Id., subd. 6 (1998).  “Misconduct also includes negligent conduct by an employee demonstrating a substantial lack of concern for the employment.”  Id.  However, the statute excludes from misconduct “[i]nefficiency, inadvertence, simple unsatisfactory conduct, or poor performance as a result of inability or incapacity.”  Id.  The burden of proof is on the employer when denial of reemployment benefits is the issue.  “The employer must establish by the greater weight of the evidence that the employee was guilty of the misconduct charged.”  Lumpkin v. North Central Airlines, Inc., 296 Minn. 456, 459-60, 209 N.W.2d 397, 400 (1973) (citations omitted).

            Here, the commissioner’s representative found that Running had sent Schmidt an e-mail on the morning of April 30, 1999, indicating that Schmidt would not be able to leave early because Tennant was short staffed.  But it is not in dispute that an e-mail was sent.  More importantly, there is nothing in the record to indicate that Schmidt lied when she said she had not opened that e-mail.  She stated that she did not open it because she thought it was merely that day’s absentee list, which had already been sent around.

            The record shows that: (1) Schmidt asked her supervisor, Running, for permission to leave early on April 30, and was told by Running that she could possibly leave early if the phones were slow; (2) at approximately 11:00 a.m. on April 30, the phones slowed down and Schmidt went looking for Running to seek permission to leave, but couldn’t find her because she was in a staff meeting; (3) at approximately 11:20 a.m., Schmidt approached her team leader, Seifert, and told her that Running had indicated that she could leave early if the phones were not busy; (4) the phones weren’t busy, so Seifert told Schmidt, “Okay, go;” and (5) although Seifert technically did not have authority to grant employees permission to leave work early, she had previously given Schmidt permission to leave work when her daughter was ill.

            We can conclude that Schmidt engaged in “simple unsatisfactory conduct” that got her fired.  But job reinstatement is not the issue; reemployment compensation is.  We cannot conclude that Schmidt’s behavior rose to the level of intentional conduct showing a disregard of Tennant’s interest or a disregard for the standards of behavior an employer has the right to expect of employees.  On this record, accepting the facts as found by the commissioner’s representative, we conclude that these facts do not constitute disqualifying misconduct as a matter of law.  All the record supports is miscommunication over a personal issue that was well intentioned and an issue that the employee was “up front” about.

            The commissioner’s representative erred in denying reemployment insurance benefits to Schmidt on grounds that she was discharged for disqualifying misconduct.