This opinion will be unpublished and

may not be cited except as provided by

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







Donna M. Harms,





Rosepointe Senior Community,



Commissioner of Economic Security,



Filed June 27, 2000


Schumacher, Judge


  Department of Economic Security

File No. 1940 99


Peter B. Knapp, Stuart T. Alger (certified student attorney), William Mitchell Law Clinic, 875 Summit Avenue, St. Paul, MN 55105 (for relator)


Rosepointe Senior Community, Pointe Management Corporation, c/o Automatic Data Processing, Post Office Box 6501-8501, Diamond Bar, CA 91765 (respondent)


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


            Considered and decided by Klaphake, Presiding Judge, Schumacher, Judge, and Poritsky, Judge*.

U N P U B L I S H E D   O P I N I O N


Relator Donna M. Harms challenges the commissioner’s representative’s decision that she was discharged for misconduct that adversely affected her employment and was, therefore, disqualified from receiving reemployment insurance benefits.  We affirm.


Harms was hired as a full-time cook at Rosepointe Senior Community on August 11, 1998.  On June 14, 1999, Amy Koehnen, the managing director of the Rosepointe, wrote a memo to Harms listing some complaints regarding her work performance, as well as providing Harms with a clarification of the employer’s work expectations.  On June 23, 1999 and July 6, 1999, Harms’s supervisor, Irene Peralez, provided Koehnen with further complaints regarding Harms’s performance.  On July 12, 1999, Koehnen gave Harms a “final warning.”  According to Peralez, following the meeting with Koehnen, Harms approached her in the kitchen and told her, “You hate me,” and stormed out of the kitchen.

Harms claims she told Peralez that she was leaving because she was sick. The commissioner’s representative found that she told Peralez only that she was leaving.  On July 13, 1999, Harms was fired for leaving work the day before in the middle of her shift.


The reemployment insurance fund is available only to persons involuntarily “unemployed through no fault of their own.”  Minn. Stat. § 268.03, subd. 1 (1998). An applicant is disqualified from receiving reemployment insurance benefits if the applicant was discharged from employment due to misconduct that adversely affected that employment.  Minn. Stat. § 268.095, subd. 4 (1998); see Minn. Stat. § 268.095, subds. 4, 5, 6 (1998) (defining discharge and misconduct).[1]  For purposes of reemployment insurance benefits, “misconduct” is intentional conduct reflecting a disregard for:

(1)  the employer’s interest;

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

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


Misconduct also includes negligent conduct by an employee demonstrating a substantial lack of concern for the employment.  Inefficiency, inadvertence, simple unsatisfactory conduct, or poor performance as a result of inability or incapacity are not misconduct. 


Minn. Stat. § 268.095, subd. 6.

The employer has the burden to prove that an employee is disqualified from receiving reemployment insurance benefits.  Decker v. City Pages, Inc., 540 N.W.2d 544, 547 (Minn. App. 1995). This court views the factual findings of the commissioner’s representative “in the light most favorable to the decision.”  Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996).  This court is not bound by the commissioner’s representative’s conclusions of law.  Ress v. Abbott NW Hosp., 448 N.W.2d 519, 523 (Minn. 1989). 

The commissioner’s representative concluded that Harms was disqualified from receiving reemployment insurance benefits because she was discharged for misconduct.  Absenteeism has been recognized as evidence of misconduct and “[e]ven a single unexcused absence may constitute misconduct.” Del Dee Foods, Inc. v. Miller, 390 N.W.2d 415, 418 (Minn. App. 1986) (quoting Blau v. Masters Restaurant Assocs., 345 N.W.2d 791, 794 (Minn. App. 1984)). The commissioner’s representative found that immediately after being given a final warning for her work behavior/performance, Harms left work without permission.  Harms argues this is untrue and claims she told Peralez she was leaving because she was ill, a fact that Peralez denies.

While the testimony regarding what was said on July 12, 1999, is conflicting, the commissioner’s representative chose to believe Peralez’s version.  Where credibility is at issue, “this court must defer to the Commissioner’s ability to weigh the evidence.” Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995).  Therefore, we defer to the finding of the commissioner's representative that Harms left her shift without telling Peralez that she was sick and without permission.  The commissioner’s representative’s findings will not be disturbed if there is any evidence reasonably tending to support them.  Tuff v. Knitcraft Corp., 526 N.W. 2d 50, 51 (Minn. 1995).  Here, Peralez’s version of the events provides evidence reasonably tending to support the finding.

In determining whether absenteeism rises to the level of misconduct, the "critical factor is whether the employee’s behavior caused his failure to report to work.” Winkler v. Park Refuse Serv., Inc., 361 N.W.2d 120, 124 (Minn. App. 1985).  Because Harms voluntarily left her job without permission during the middle of her shift, her act rose to the level of misconduct.  Psihos v. R & M Mfg., 352 N.W.2d 849, 850 (Minn. App. 1984) (holding that where employee left job in middle of shift, without permission, he committed misconduct sufficient to disqualify him from receiving reemployment insurance benefits).  In addition, her misconduct adversely affected her employment because she walked off the job before preparing the evening meal.


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

[1] Because the issue is whether Harms was discharged on July 13, 1999 for misconduct, we apply Minn. Stat. § 268.095 (1998), as did the commissioner's representative.