This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-96-1784

Patricia Dawson,

Relator,

vs.

Lowertown Commercial Building Services,

Respondent,

Commissioner of Economic Security,

Respondent.

Filed February 25, 1997

Affirmed

Parker, Judge

Department of Economic Security

File No. 4732UC96

Patricia Dawson, c/o Inez Kapala, 10331 Hummingbird Street Northwest, Coon Rapids, MN 55433 (relator pro se)

Lowertown Commercial Building Services, 175 East Fifth Street, #77, St. Paul, MN 55101 (respondent)

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

Considered and decided by Parker, Presiding Judge, Huspeni, Judge, and Schumacher, Judge.

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

PARKER, Judge

Relator Patricia Dawson was involuntarily discharged by respondent Lowertown Commercial Building Services on April 24, 1996, due to absenteeism on the days of April 22 and 23. The Commissioner's representative affirmed the reemployment judge's ruling that Dawson was disqualified from receiving benefits because she had been discharged for misconduct. Dawson appeals, arguing that, based upon the record, the Commissioner's determination that she was discharged from employment for reasons of misconduct is erroneous. We affirm.

D E C I S I O N

The narrow standard of review in an economic security case requires that the findings be viewed in a light most favorable to the decision, and if there is evidence reasonably tending to sustain them, they will not be disturbed. White v. Metropolitan Med. Ctr., 332 N.W.2d 25, 26 (Minn. 1983); Nyberg v. R. N. Cardozo & Brother, Inc.,, 243 Minn. 361, 364, 67 N.W.2d 821, 823 (1954). While this court must defer to the Commissioner's findings of fact if they are reasonably supported by the evidence in the record, the court exercises its independent judgment with respect to questions of law. Smith v. Employers Overload Co., 314 N.W.2d 220, 221 (Minn. 1981); Forsberg v. Depth of Field/Fabrics, 347 N.W.2d 284, 286 (Minn.App. 1984).

Minn. Stat. § 268.09, subd. 1(b) (Supp. 1995), provides that individuals "discharged for misconduct, not amounting to gross misconduct connected with work, or for misconduct which interferes with and adversely affects employment" shall be disqualified from receiving waiting-week credit and benefits.

The definition of misconduct set forth in Tilseth v. Midwest Lumber Co., 295 Minn. 372, 204 N.W.2d 644 (1973), governs this action. In Tilseth, the Minnesota Supreme Court stated:

[T]he intended meaning of the term 'misconduct' is limited to conduct evincing such wilful or wanton disregard of an employer's interest 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. On the other hand, 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.'

Id., 295 Minn. at 374-75, 204 N.W.2d at 646. In Feia v. St. Cloud State College, 309 Minn. 564, 565, 244 N.W.2d 635, 636 (1976), the supreme court expanded the definition of misconduct to include conduct "demonstrating a lack of concern by the employee for her job."

This court has recognized the employer's right to establish and enforce reasonable work rules relating to absenteeism. Flahave v. Lang Meat Packing, 343 N.W.2d 683, 686 (Minn. App. 1984).

We hold that the facts on record warrant the Commissioner's conclusion that Dawson's discharge was for "misconduct," that is, conduct evincing a willful or wanton disregard for the employer's interests. Dawson's own voluntary testimony demonstrated that she failed to show up or call in to work on April 22 and 23, 1996, after having called in absent on five consecutive days following a five-day disciplinary suspension. It is well-established that an employee commits misconduct when she fails to give proper notice to her employer of an intended absence from work. See Flahave, 343 N.W.2d at 686 (citing Moeller v. Minnesota Dep't of Transp., 281 N.W.2d 879, 882 (Minn. 1979)).

Affirmed.