This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).







Nancy A. Franczyk,





MedPersonnel, Inc.,




Department of Employment and Economic Development,



Filed December 6, 2005


Lansing, Judge


Department of Employment and Economic Development

Agency File No. 16859 04


Nancy A. Franczyk, 17611 Lancaster Court, Lakeville, MN 55044 (pro se relator)


MedPersonnel, Inc., 6550 York Avenue, Edina, MN 55435 (respondent)


Linda A. Holmes, Department of Employment and Economic Development, 332 Minnesota Street, Suite E200, St. Paul, MN 55101-1351 (for respondent Department of Employment and Economic Development)



            Considered and decided by Lansing, Presiding Judge; Shumaker, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N


            In a de novo review of an unemployment law judge’s determination that Nancy Franczyk qualified for unemployment benefits, a senior unemployment review judge concluded that her actions constituted employment misconduct and reversed the determination.  Franczyk, by writ of certiorari, appeals the findings relating to her discharge and the determination of misconduct.  Because the evidence in the record does not reasonably sustain the findings on which the senior review judge based his conclusion, we reverse.


            Nancy Franczyk worked as a placement specialist for MedPersonnel, Inc., from December 2003 until October 6, 2004.  Franczyk was responsible for reviewing applications and interviewing candidates for medical positions.

            On September 30, 2004, a candidate who had been interviewed by Franczyk complained to MedPersonnel’s president upon discovering in her file Franczyk’s handwritten notes about her appearance and attitude.  The president reprimanded Franczyk and told her that writing these notes would place the president’s license in jeopardy.  Franczyk testified that she did not know the notes were inappropriate and that she wrote the notes to herself as a memory aid because she has memory problems related to a past illness.  She apologized for making the notes and told the president she would discontinue the practice and redact the notes from the files.

            Approximately five days later, the president decided that she did not feel “comfortable” employing Franczyk and asked her to look for another position.  She told Franczyk that she could continue working at MedPersonnel until she secured other employment.  Franczyk testified that she was upset when the president told her about this decision and began to experience a physiological response that she characterized as a “cardiac episode”—an increased heart rate and blood pressure.  She went to see her doctor over her lunch break but was still experiencing discomfort when she returned.  She asked to leave early at about 3:15 p.m.  As Franczyk was leaving, the president asked that she call in by 6:30 a.m. the following morning to indicate whether she would report to work.  The president testified that she needed to know Franczyk’s intentions by that time so that she could hire a temporary replacement if necessary.

            The next morning Franczyk called the president shortly after 6:30 a.m.  The senior review judge found that Franczyk, in that early morning phone call, told the president that “she didn’t know if she would be in later [in] the day.”  Both MedPersonnel’s president and Franczyk testified, however, that Franczyk stated in the phone call that she would not come in to work that day.  The senior review judge also found that the president, in the early morning phone conversation, asked Franczyk “to call the president later that morning and let her know if she was able to report to work.” 

            Franczyk testified that she saw her doctor that morning and “was told to get more rest.”  She waited to see if her condition improved before calling MedPersonnel’s president to let her know if she would be able to work the following day.  At about 4:30 p.m., Franczyk picked up her cell phone to call the president.  Franczyk realized that her phone was still in its silent mode because she had forgotten to turn the ringer on after leaving her doctor’s office.  Franczyk discovered she had a voice message from the president telling her that MedPersonnel was discharging her for failing to cooperate and requesting that Franczyk turn in the keys and pick up her final check the following day.  Franczyk responded by e-mail that evening that she would not be at work the following day because she needed to rest.  The president received the e-mail at the office the next morning.

            Franczyk applied to the Department of Employment and Economic Development for unemployment benefits.  A department adjudicator found that she had voluntarily quit and denied benefits.  Franczyk appealed and, following a hearing, an unemployment law judge determined that MedPersonnel discharged Franczyk.  The unemployment judge further found that Franczyk’s actions did not meet the definition of employment misconduct and that her poor performance or simple unsatisfactory conduct did not disqualify her from receiving unemployment benefits.  MedPersonnel appealed, and the senior review judge determined that Franczyk committed employment misconduct by failing to contact MedPersonnel a second time after the 6:30 a.m. phone call to let them know whether she would be able to report to work at any time that day.  Franczyk appeals the senior review judge’s determination.


            Employment misconduct is “any intentional, negligent, or indifferent conduct . . . (1) that displays clearly a serious violation of the standards of behavior the employer has the right to reasonably expect from the employee, or (2) that displays clearly a substantial lack of concern for the employment.”  Minn. Stat. § 268.095, subd. 6(a) (2004).  The definition of employment misconduct does not include an employee’s “[i]nefficiency, inadvertence, simple unsatisfactory conduct, [or] a single incident that does not have a significant adverse impact on the employer.”  Id.

            A determination that an employee is not entitled to unemployment benefits because of employee misconduct is a mixed question of fact and law.  Colburn v. Pine Portage Madden Bros., 346 N.W.2d 159, 161 (Minn. 1984).  On certiorari appeal we review the decision of the senior review judge, not that of the unemployment law judge.  See Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995) (applying predecessor statute to decision by “representative of the commissioner,” now referred to as “senior unemployment review judge”).  We will not reverse a senior review judge’s findings so long as “there is evidence that reasonably tends to sustain those findings.”  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  We review de novo whether the employee’s actions constitute employment misconduct, which disqualifies the employee from receiving unemployment benefits.  Ress v. Abbott Nw. Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).

            The senior review judge, in exercising de novo review, must base his or her findings of fact and decision on the “evidence submitted at the evidentiary hearing” conducted by the unemployment law judge.  Minn. Stat. § 268.105, subd. 2(c) (2004).  The transcript of the evidentiary hearing establishes that both Medpersonnel’s president and Franczyk testified that, when Franczyk left the office early on October 5, the president directed Franczyk to notify her by 6:30 a.m. on October 6 whether she would report for work that day.  The uncontradicted record also establishes that Franczyk complied by calling the president shortly after 6:30 a.m. to report that she would not be in that day.  The president then asked Franczyk to let her know that day (October 6) whether she would be in the following day, October 7.  When Franczyk picked up her cell phone to call at approximately 4:30 p.m. (October 6), she had a phone message from the president discharging her for failure to cooperate.

            In determining that Franczyk was discharged for employment misconduct, the senior review judge mistakenly found that Franczyk never told the president whether she would come in on October 6, the day she made the early morning phone call.  Specifically, the senior review judge found that Franczyk “said she would call MedPersonnel’s president later that morning to say if she would be able to report to work at any time that day.”  This finding has no support in the record.  The undisputed evidence establishes that Franczyk notified the president shortly after 6:30 a.m. on October 6 that she would not be in that day.

            Although the senior review judge is authorized to make findings of fact and a decision independent of the unemployment law judge’s determination, the independent findings and decision must be based on the evidence submitted at the hearing conducted by the unemployment law judge.  Minn. Stat. § 268.105, subd. 2(c), (d).  Findings that are not reasonably supported by the record will not be sustained on review.  Schmidgall, 644 N.W.2d at 804.  Because the senior review judge’s finding is not sustained by the record, we next determine whether the unsupported finding affects the senior review judge’s decision.

            The unsupported finding that Franczyk failed to contact MedPersonnel “to say if she would be able to report to work at any time that day” is central to the determination of employment misconduct.  The senior review judge based Franczyk’s disqualification solely on her “failure to contact MedPersonnel” to tell them “if she would be able to report to work at any time that day.”

            Based on the corrected factual findings, we cannot conclude that the events of October 6 constitute disqualifying employment misconduct under the statute.  The president’s phone message discharging Franczyk was left on Franczyk’s cell phone at approximately 4:30 p.m.  Franczyk communicated with the president by e-mail later that same day.  The timing of Franczyk’s communication would not provide a basis for employment misconduct because it exceeds the notice requested the previous day—that Franczyk let the president know of her intended absence by 6:30 a.m. on the day of the absence to allow time to hire a temporary replacement.  See Minn. Stat. § 268.095, subd. 6 (defining employment misconduct).  Franczyk’s failure to contact MedPersonnel before 4:30 p.m. to notify them that she would be absent the following day does not establish a serious violation of the standards of behavior the employer could reasonably expect of the employee or display a substantial lack of concern for the employment.