This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-96-727

Kathleen Abbey,

Relator,

vs.

Samaritan Bethany, Inc.,

Respondent,

Commissioner of Economic Security,

Respondent.

Filed December 4, 1996

Reversed

Willis, Judge

Department of Economic Security

File No. 10603UC95

William L. French, 627 Woodhaven Ct. N.E., P.O. Box 6323, Rochester, MN 55903 (for Relator)

Gregory J. Griffiths, Dunlap & Seeger, P.A., 206 South Broadway, 505 Marquette Bank Building, Rochester, MN 55903 (for Respondent Samaritan Bethany, Inc.)

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

Considered and decided by Willis, Presiding Judge, Lansing, Judge, and Kalitowski, Judge.

U N P U B L I S H E D O P I N I O N

WILLIS, Judge

Kathleen Abbey appeals the decision of the representative of respondent Commissioner of Economic Security on the ground that the representative erroneously determined that respondent-employer discharged her for misconduct. We reverse.

FACTS

Kathleen Abbey began working for Samaritan Bethany, Inc. (Samaritan), as a housekeeper in December 1980. For the purpose of scheduling vacations, Samaritan requires employees to complete a vacation request form, to obtain their supervisor's written approval on the form, and to retain the portion of the form signed by the supervisor. In October 1995, Abbey submitted a written vacation request to her supervisor, Kris Rogers. Abbey claims that although Rogers did not give written approval, she orally approved Abbey's request for vacation to begin on November 20, 1995. Samaritan claims Abbey's vacation was scheduled to begin on November 27, 1995, and produced a vacation request form showing that date. At the hearing, Abbey testified that she did not write the "7" on the form and that it appeared that the date had been changed.

On November 20, 1995, Abbey did not report for scheduled work. Rogers called Abbey to determine why she was not at work and told her that Samaritan had no record showing a vacation request for that date. Rogers asked Abbey to come to the office to straighten out the vacation issue, but she did not specify a date or time for Abbey to do so. On November 22, 1995, Abbey remained absent from work, but she came in to discuss vacation scheduling issues at the request of Jason Cronk, Samaritan's administrator. Abbey was unable to show Cronk written authorization for the dates of her vacation, but offered to work both on November 25 and November 27, 1995. On both days, she was sent home shortly after she arrived. On December 1, 1995, Cronk terminated Abbey for violating the company's "no call/no show" policy that "[a]n employee who does not come to work or call on three (3) consecutive days when scheduled will have voluntarily terminated."

The Minnesota Department of Economic Security denied Abbey's claim for reemployment insurance benefits. On appeal, the reemployment insurance judge decided Abbey was entitled to benefits. The Commissioner's representative reversed, stating that it was misconduct for Abbey (1) to continue her absenteeism after Samaritan advised her that vacation leave had not been approved for the days at issue and (2) to refuse to comply in a timely manner with Samaritan's reasonable request that she come in to discuss the situation. Abbey appeals the decision of the Commissioner's representative.

D E C I S I O N

The employer has the burden of proving, by the greater weight of the evidence, that an employee is disqualified from receiving benefits under Minn. Stat. § 268.09, subd. 1(b) (1994), based on misconduct. Lumpkin v. North Cent. Airlines, 296 Minn. 456, 459-60, 209 N.W.2d 397, 400 (1973). Because misconduct is a disqualification, it is to be narrowly construed. Smith v. Employers' Overload Co., 314 N.W.2d 220, 222 (Minn. 1981). On appeal, this court reviews the findings of the Commissioner's representative in the light most favorable to the decision and will not disturb the findings if evidence exists reasonably tending to sustain them. Ress v. Abbott Northwestern Hosp., 448 N.W.2d 519, 523 (Minn. 1989). The issue of whether a claimant is properly disqualified from receiving reemployment benefits is a question of law on which this court is free to exercise its independent judgment. Id.

"[T]he intended meaning of the term 'misconduct' * * * is limited to conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer."

Tilseth v. Midwest Lumber Co., 295 Minn. 372, 374-75, 204 N.W.2d 644, 646 (1973) (citation omitted). A claimant's absenteeism may constitute disqualifying conduct. Moeller v. Minnesota Dep't of Transp., 281 N.W.2d 879, 882 (Minn. 1979). But "mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed 'misconduct.'" Tilseth, 295 Minn. at 375, 204 N.W.2d at 646.

The Commissioner's representative correctly cites Sandstrom v. Douglas Mach. Corp., 372 N.W.2d 89 (Minn. App. 1985), for the general proposition that an employee's refusal to comply with an employer's reasonable request that does not impose an unreasonable burden on the employee constitutes misconduct. Id. at 91. However, Samaritan initially identified, and the Commissioner's representative found, Abbey's violation of Samaritan's "no call/no show" policy to be the reason for her discharge. Even if it was misconduct for Abbey to fail to comply until November 22 with Samaritan's reasonable requests to come in to straighten out her schedule, that conduct was not the reason for her discharge; therefore, it may not serve as a basis for denying Abbey reemployment insurance benefits. See Minn. Stat. § 268.09, subd. 1(b) (providing that individual is disqualified from receiving benefits if "discharged for misconduct") (emphasis added); Harringer v. AA Portable Truck & Trailer Repair, Inc., 379 N.W.2d 222, 224 (Minn. App. 1985).

The Commissioner's representative found that (1) Abbey knew of Samaritan's "no call/no show" policy; (2) she did not report for scheduled work, or call in to report her absence, from November 20 to November 22, 1995; and (3) she knew or should have known she was scheduled to work on those three days.[1] In accordance with Ress, we accept these findings. See 448 N.W.2d at 523. But even if Abbey should have known she was scheduled to work the week of November 20, there is no evidence that she demonstrated intentional and substantial disregard of Samaritan's interests. See Tilseth, 295 Minn. at 374-75, 204 N.W.2d at 646; see also Sticha v. McDonald's, 346 N.W.2d 138, 140 (Minn. 1984) (holding that misunderstanding and lack of communication between employer and employee regarding the reason employee took a day off is insufficient to establish disqualifying misconduct).

The evidence shows that (1) Abbey testified that Rogers orally approved her vacation leave beginning November 20; (2) Abbey's neighbor, upon whom she relied to drive her to work, stated that she informed him in advance that she signed up for vacation beginning November 20; (3) Abbey testified that she takes time off around Thanksgiving every year; (4) Abbey worked at Samaritan for 15 years with no history of absenteeism or scheduling confusion; (5) Rogers testified that when she spoke with Abbey on November 20, Abbey told her that she would be on vacation until December 5; (6) Abbey testified that she would not have missed work if she had known her vacation had not been approved; (7) during the November 20 conversation, Rogers did not tell Abbey to come in to work; (8) when Rogers asked Abbey to come in to straighten out her schedule, she did not specify a date by which Abbey was required to do so; (9) when Cronk asked Abbey to come in to straighten out her schedule, she came in the same day; and (10) when Abbey was unable to provide documentation of her approved vacation dates, she offered to work both on November 25 and November 27.

Because this record does not show that Abbey's conduct evinced "wilful or wanton disregard" of Samaritan's interests, Samaritan failed to meet its burden of proving, by the greater weight of the evidence, that Abbey is disqualified from receiving reemployment insurance benefits based on misconduct. See Fujan v. Ruffridge-Johnson Equip., 535 N.W.2d 393, 396 (Minn. App. 1995) (holding that employer failed to meet its burden of proof that relator was discharged for disqualifying misconduct where "nothing in the record demonstrates that relator acted with ill will").

Reversed.

[ ]1The Commissioner's representative based her determination of misconduct partly on a finding that Abbey made inconsistent statements regarding whether she received written vacation verification. The evidence, however, does not support that finding. Abbey testified that she intended to show Cronk her work schedule on November 22, 1995, but she was unable to locate it. Accordingly, Abbey's testimony that she was never provided with written vacation authorization is not inconsistent with Cronk's statement that on November 22 Abbey told him she could not find documentation of her vacation.