This opinion will be unpublished and

may not be cited except as provided by

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




Virginia L. Moore,



EMC Corporation,


Commissioner of Economic Security,


Filed November 25, 1997


Huspeni, Judge

Department of Economic Security

File No. 1294UC97

Dennis J. Merley, Felhaber, Larson, Fenlon & Vogt, P.A., 601 Second Ave. S., #4200, Minneapolis, MN 55402 (for relator EMC)

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

Considered and decided by Huspeni, Presiding Judge, Klaphake, Judge, and Harten, Judge.



Relator challenges the finding of the Commissioner of Economic Security's representative that respondent was dismissed from her job for reasons other than misconduct. Because the finding is not without support in the evidence, we affirm.


In June 1996, respondent Virginia Moore was notified by her employer, relator EMC Corporation, that a new policy prohibited employees from leaving voice mail messages to alert the employer of an expected absence.

On October 21, 1996, respondent received a written warning after she left her supervisor a voice mail message stating that she would be absent from work. On December 4, 1996, respondent received a two-day suspension without pay after again violating company policy by leaving a voice mail message notifying the supervisor of an expected absence.

On January 20, 1997, respondent was scheduled to begin her shift at 7:30 a.m. At 8:00 a.m., she woke up feeling ill. Because she did not have an operational phone, she had to walk two blocks to a pay phone to call in sick. When the supervisor did not answer respondent's call, it went into the voice messaging system. Respondent left a message stating that she was ill, that she knew she should not leave a message, and that she would try to contact the supervisor directly later in the morning.

After returning home, respondent fell asleep and did not call her supervisor again that afternoon. The next day, respondent was terminated for failing to contact her supervisor directly.

The Minnesota Department of Economic Security found that respondent had been discharged for misconduct and denied her request for reemployment insurance benefits; the reemployment insurance judge affirmed the Department's decision. Respondent appealed, and the Commissioner of Economic Security reversed, finding that respondent was discharged for reasons other than misconduct.


"On appeal, [a reviewing court] must review the decision of the Commissioner's representative, rather than that of the referee." Weaver v. Minnesota Valley Lab., 470 N.W.2d 131, 133 (Minn. App. 1991). The Commissioner's representative's determination that an employee committed misconduct is a mixed question of law and fact. A reviewing court will affirm if the findings of fact "are not without support in the evidence" and if "the conclusion of those facts is not contrary to the statutory mandate." See Colburn v. Pine Portage Madden Bros., 346 N.W.2d 159, 161 (Minn. 1984).

An employee may be disqualified from receiving reemployment insurance benefits if that employee was discharged for misconduct. Minn. Stat. § 268.09, subd. 1(b) (1996). Misconduct is

conduct evincing such willful or wanton disregard of an employer's interest as is found in deliberate violations or disregard of standards of behavior which the employer has a right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability * * *. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as a 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 v. Midwest Lumber Co., 295 Minn. 372, 374-75, 204 N.W.2d 644, 646 (1973). The issue in this case is not whether respondent should have been fired, but whether, now that she is unemployed, she should be denied reemployment insurance benefits. See Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).

The Commissioner's representative found that respondent's actions in this case constituted a good-faith effort to comply with relator's policy. We agree. While sick,[1] respondent walked two blocks in January to a pay phone to notify her supervisor directly about her intended absence. Respondent even noted in her message that she was aware of the company policy and would try again later to make direct contact.

Respondent's ability to comply with the company policy hinged on whether the supervisor was at her desk at the time of respondent's call. Had the supervisor been at her desk, respondent would have complied with the policy. The record supports the Commissioner's representative's determination that respondent made a good-faith effort to comply.

Relator argues that this case is factually similar to Fresonke v. St. Mary's Hospital, 363 N.W.2d 328 (Minn. App. 1985). In Fresonke, the employee was terminated after he told a personnel representative of his expected absence, but ignored the representative's direction to inform his supervisor directly. This court upheld the denial of benefits, holding that taking seven days of additional medical leave without attempting to notify the supervisor demonstrated a lack of concern for retaining his job. Id. at 329-30.

Fresonke is factually distinguishable from this case. Respondent called her supervisor and, because the supervisor did not answer the phone, left the supervisor a personal voice mail message indicating that she would be absent. Though a technical violation of company rules, this action is not similar to Fresonke.

Relator argues that respondent's actions demonstrate a pattern of unacceptable behavior that results in misconduct, relying on Jones v. Rosemount, Inc., 361 N.W.2d 118, 120 (Minn. App. 1985) (holding that even though the final absence was not willful, the overall absences were "sufficiently chronic and excessive" to demonstrate a lack of concern for the job). The record indicates, however, that relator failed to raise this issue previously and therefore waived the right to raise it before this court. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (holding that this court will only consider issues that have been "properly presented and considered by" the previous hearing body).[2]

Even if we were to address this issue on its merits, we would not deem respondent's actions "sufficiently chronic and excessive" enough to rise to the level of misconduct described in Jones, where the employee missed 82 hours of work in a seven-month period following two warnings for excessive absences. Jones, 361 N.W.2d at 119.

The Commissioner's representative's determination that respondent made a good-faith effort to comply with her employer's policy is supported by the record.


[1] Relator does not dispute that respondent was, in fact, sick on January 20, 1997.

[2] At the initial hearing, Human Resources Manager Sue Cook and Customer Service Manager Sandy Duffey appeared on behalf of relator. At the conclusion of testimony, they waived giving a closing statement. Later, when the matter was appealed to the Commissioner of Economic Security, relator did not file a statement of legal and factual arguments in response to that filed by respondent. At no time did the parties argue that respondent was fired for chronic and excessive absence.