This opinion will be unpublished and

may not be cited except as provided by

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






Anita Davis,


Rainbow Foods,


Department of Employment and Economic Development,


Filed February 28, 2006


Collins, Judge*


Department of Employment and Economic Development

File No. 13649 04


Betty A. Berger, Southern Minnesota Regional Legal Services, 166 East Fourth Street, Suite 200, St. Paul, MN  55101 (for relator)


Rainbow Food Group, Inc., RBF Corporation of Wisconsin, c/o TALX UCM Services, Inc., P.O. Box 283, St. Louis, MO  63166 (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 Minge, Presiding Judge; Randall, Judge; and Collins, Judge.

U N P U B L I S H E D   O P I N I O N


On certiorari appeal from a decision of the senior unemployment review judge (SURJ), relator contends that the SURJ was wrong in deciding that relator was discharged for employment misconduct and is consequently disqualified from receiving unemployment benefits.  Because the SURJ erred as a matter of law by concluding that relator committed employment misconduct, we reverse.


Relator was employed by RBF Corporation, d.b.a. Rainbow Foods (RBF), as a part-time “deli associate” from June 13, 2003, through June 12, 2004, when she was terminated due to absenteeism in violation of RBF’s attendance policy.  Since September 6, 1977, and continuously for 26 years prior to June 13, 2003, relator had worked at Rainbow Foods under a different corporate owner.

            The RBF attendance policy, effective June 13, 2003, and in effect on the date of relator’s termination, allowed for termination when an associate incurs “eight (8) incidents of absence/tardiness per twelve (12) months.”  Under the policy, an “incident of absence . . . is an occurrence of missing a scheduled shift.”  But, “an absence due to illness accompanied with a signed note by a medical doctor stating you were physically unable to work the day of the absence, will not be considered an incident.” 

Between June 13 and December 27, 2003, relator incurred seven incidents of absence.  Although she gave timely notice of each absence by telephone, on no occasion did she provide a doctor’s note.  On June 12, 2004, relator again called in to say she would be absent, and again provided no medical documentation.  RBF terminated relator for absenteeism when she next reported for work on June 14.    

Upon her application, relator was initially found qualified for unemployment benefits on the grounds that her last absence, of which she had given proper notice, was due to illness.  RBF appealed the determination of qualification for review by respondent Minnesota Department of Employment and Economic Development (DEED). At the hearing before the unemployment law judge (ULJ), relator attributed her absences from work for several days in the fall of 2003 to problems relating to her antidepressant medication and offered into evidence a note from her doctor corroborating this assertion.    The ULJ determined that relator was discharged for employment misconduct and is therefore disqualified from receiving unemployment benefits.

On relator’s appeal for de novo review, the SURJ affirmed the ULJ’s determination.  After observing that an absence accompanied by a “signed note from a medical doctor” did not count as “an incident” under RBF’s attendance policy and that relator provided notice by telephone—but not a doctor’s note—prior to each of the eight incidents between June 13, 2003, and June 12, 2004, that led to her termination, the SURJ reasoned that “[w]hile [relator] did offer reasonable explanations for many of her absences, she failed to submit doctor’s notes substantiating that she was ill and unable to work on the days she called in absent.”  The SURJ concluded that “[relator’s] failure to provide RBF with a doctor’s note corroborating the reason for her absence on June 12, 2004, exhibited a lack of concern for her job and a disregard of the standards of behavior RBF had the right to reasonably expect of her [and therefore constituted] employment misconduct.” 

Relator was granted certiorari review of the decision of the SURJ.  During the pendency of this appeal DEED informed this court by letter of its opinion that by concluding that relator’s failures to provide doctor’s notes supporting her absences constituted “employment misconduct,” the SURJ erred as a matter of law because the unemployment-benefits statute “specifically excludes absences due to illness with proper notice from the definition of misconduct.”  DEED concedes that giving notice of an absence by telephone constitutes “proper notice.”  RBF elected not to participate in this appeal.  DEED did not submit a brief. 


To its credit, DEED candidly opined that the SURJ erred as a matter of law.  Nevertheless, we must independently review the record de novo.

Because neither respondent filed a brief, the matter is to be decided on the merits pursuant to Minn. R. Civ. App. P. 142.03.  On certiorari appeal, we review and give special deference to the decision of the SURJ.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  Whether a discharged employee has engaged in employment misconduct is a mixed question of fact and law.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  The determination of whether an employee committed a specific act is a question of fact, which we review in the light most favorable to the decision and will not reverse if it is reasonably supported by the record.  Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996).  But whether a specific act or acts constitute misconduct is a question of law, which we review de novo.  Id.  A reviewing court will affirm the SURJ’s determination if the findings are supported by the evidence and the conclusion based on those facts is consistent with the statutory mandate.  Colburn v. Pine Portage Madden Bros., 346 N.W.2d 159, 161 (Minn. 1984). 

An employee who is discharged for employment misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4(1) (Supp. 2003).  Employment misconduct is defined as “any intentional, negligent, or indifferent conduct, on the job or off the job (1) that evinces a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee, or (2) that displays a substantial lack of concern for the employment.”  Id., subd. 6(a).  But employment misconduct does not include “absence because of illness or injury with proper notice to the employer.”  Id.  “The definition of employment misconduct provided by this subdivision shall be exclusive and no other definition shall apply.”  Id., subd. 6(e).

Here, relator contends that the SURJ erred as a matter of law by concluding that her failure to provide a doctor’s note on June 12, 2004, constituted employment misconduct when she had given notice of the absence by telephone, because the statute does not require a doctor’s note as an element of “proper notice.”  See id., subd. 6(a).  We agree and conclude that relator’s properly noticed absences due to illness did not amount to “employment misconduct.”  See Kemp v. U.S. Dep’t of Agric., 385 N.W.2d 879, 882 (Minn. App. 1986) (observing that “[a]n employee’s repeated failure to give notice in advance of intended absences has been held to constitute misconduct”).  The SURJ improvidently applied the standard for termination set forth in RBF’s attendance policy to determine whether relator was disqualified from benefits under the unemployment-insurance statute.  Therefore, although RBF may have been justified in terminating relator under the policy, the grounds for termination—failure to support the June 12, 2004, absence with a doctor’s note—did not constitute statutory employment misconduct and did not disqualify relator from unemployment benefits.  We therefore reverse the decision of the SURJ that relator’s course of conduct constituted employment misconduct and that she is disqualified from the payment of unemployment benefits.

Finally, we observe that because the decision of the SURJ was based exclusively on the erroneous conclusion that relator’s failure to provide a doctor’s note constituted employment misconduct, we need not address the other arguments raised by relator in her brief. 


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