This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






Neng Xiong,





Globe Tool & Manufacturing Co.,



Commissioner of Economic Security,



Filed July 17, 2001


Kalitowski, Judge


Department of Economic Security

File No. 721100


Neng Xiong, 1130 Burr Street, Apartment 1, St. Paul, MN 55101 (pro se relator)


Globe Tool & Manufacturing Co., 730 24th Avenue Southeast, Minneapolis, MN 55414 (respondent)


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



            Considered and decided by Harten, Presiding Judge, Kalitowski, Judge, and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N


            Relator Neng Xiong challenges the decision of the commissioner’s representative that he was not entitled to unemployment insurance benefits because his unexcused absences from work constituted misconduct. We affirm. 


We must view the factual findings of the commissioner’s representative in the light most favorable to the decision and we will not disturb those findings if evidence in the record reasonably tends to sustain them.  Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996).  Whether an employee’s acts constitute misconduct, however, is a question of law upon which a reviewing court remains “free to exercise its independent judgment.”  Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989) (citations omitted). 

Persons discharged from employment for misconduct are disqualified from receiving unemployment compensation benefits.  Minn. Stat. § 268.095, subd. 4 (2000).  The unemployment statute defines “employment misconduct” as:

(1) any intentional conduct, on the job or off the job, that disregards the standards of behavior that an employer has the right to expect of the employee or disregards the employee’s duties and obligations to the employer; or


(2) negligent or indifferent conduct, on the job or off the job, that demonstrates a substantial lack of concern for the employment.


Minn. Stat. § 268.095, subd. 6(b) (2000).  Regarding unexcused absences, we have found that even one unexcused absence can constitute misconduct.  Colburn v. Pine Portage Madden Bros. Inc., 346 N.W.2d 159, 161 (Minn. 1984); see also Gustafson v. IRC Indus., 374 N.W.2d 594, 597 (Minn. App. 1985) (holding that relator’s unplanned and unapproved work absences following warnings not to be absent constituted misconduct).

            Here, relator missed work one day in June without calling in.  A month later, he missed work for two consecutive days without calling in.  For this conduct, relator was given a three-day suspension.  According to relator’s supervisor, relator called in on the third day of the suspension requesting the upcoming Monday off to find an apartment and he was given permission to be absent for one day.  When relator did not show up or call in on Tuesday, Wednesday, or Thursday, he was fired. 

            Relator argues that his supervisor consented to his absences for the entire week.  But the commissioner’s representative found the supervisor’s testimony to be more credible, noting that it was unlikely the supervisor would approve of additional absences after relator had just been suspended for three days because of unexcused absences.  This court defers to the representative’s credibility determinations as long as they are supported by evidence in the record.  Arnolds Supply & Kleenit Co. v. Vang, 410 N.W.2d 37, 39 (Minn. App. 1987).  On this record, we conclude the evidence supports the determination of the commissioner’s representative that relator was discharged due to misconduct that disqualifies him from receiving unemployment compensation benefits.