This opinion will be unpublished and

may not be cited except as provided by

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




Steven P. Summer,



Quality Pork Processors Inc. of Texas,


Commissioner of Economic Security,


Filed April 28, 1998


Huspeni, Judge

Department of Economic Security

Agency File No. 4114UC97

Richard D. Stochl, Elwood, O'Donohoe, O'Connor & Stochl, 116 N. Main St., Charles City, IA 50616 (for relator)

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

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



Relator Steven Summer appeals a decision of the Commissioner of Economic Security denying him reemployment insurance benefits. Because the record establishes that Summer was discharged for misconduct, we affirm.


From July 31 through August 8, 1996, relator Steven Summer, an employee of respondent Quality Pork Processors (employer), missed at least three days of work because he was incarcerated. Summer knew of his employer's policy that employees who missed work due to incarceration would be dismissed. On August 9, 1996, Summer appeared at his place of employment; he asked to return to work and explained that his absences were due to his arrest and inability to post bond. A wrongful incarceration could excuse his absences. Although the employer immediately suspended Summer, it directed him "to get some more information in order to prevent his discharge."

The employer testified that the suspension ran longer than normal because the union representative was ill. When the employer learned that Summer was still suspended, the employer sent a letter on November 15, 1996, informing Summer that if it did not hear from him by November 29, 1996, "We will consider you to have voluntarily quit * * *." Summer claims he did not receive the letter. When the employer received no response, it discharged Summer effective December 13, 1996, giving voluntary termination as the reason.


We review the factual findings of the commissioner's representative in the light most favorable to the decision and determine whether evidence in the record reasonably tends to sustain those findings. Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996). However, the ultimate determination of whether an employee was properly disqualified from receiving benefits is a question of law, and appellate courts exercise independent judgment when deciding that question. Id. An employee is disqualified from receiving reemployment benefits if the employee "was discharged for misconduct * * *." Minn. Stat. § 268.09, subd. 1(b) (1996). 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 * * *.

Tilseth v. Midwest Lumber Co., 295 Minn. 372, 374-75, 204 N.W.2d 644, 646 (1973) (adopting and quoting definition from Boynton Cab Co. v. Neubeck, 237 Wis. 249, 259, 296 N.W. 636, 640 (1941)). The employer has the burden of proving misconduct by the greater weight of the evidence. Ress v. Abbott Northwestern Hosp., 448 N.W.2d 519, 523 (Minn. 1989). Because the reemployment act is remedial, appellate courts narrowly construe its disqualification provisions. Id.

The record supports the commissioner's findings that: (1) from July 31 to August 1996, Summer missed at least three days of work because he was incarcerated; (2) Summer was immediately suspended without pay rather than discharged to give him the opportunity to demonstrate he had been wrongfully incarcerated; and (3) Summer ultimately pled guilty to the charges. The commissioner then decided that Summer's indefinite suspension constituted a discharge for reasons of misconduct.

Absence from work due to incarceration for criminal acts is misconduct that disqualifies an employee from reemployment benefits. Smith v. American Indian Chem. Dependency Diversion Project, 343 N.W.2d 43, 46 (Minn. App. 1984). When suspended, Summer was given an opportunity to avoid discharge by establishing that his incarceration was wrongful. He did not establish wrongful incarceration; he pled guilty to a lesser charge. Under Minnesota law, Summer's suspension became a discharge from employment when the suspension exceeded 30 days. See Minn. Stat. § 268.09, subd. 1(g) (1996).

Summer argues that because the termination notices he ultimately received in late 1996 and early 1997 gave voluntary quit as the reason for his discharge, the commissioner could not rely on his incarceration as misconduct to disqualify him from receiving benefits. Summer relies on language in Hansen v. C.W. Mears, Inc., 486 N.W.2d 776 (Minn. App. 1992), review denied (Minn. July 16, 1992), "The character of the termination is determined at the time of the termination." Id. at 780. Summer reads Hansen too narrowly. The case also holds "To disqualify a person from receiving benefits, the misconduct must be the cause of the discharge." Id. Hansen concluded that conduct not discovered until July 12 could not have caused an employee's discharge on July 1. Here the employer knew of Summer's incarceration and suspended him for that reason. When the suspension ripened into discharge, the underlying incarceration continued to form the basis of both the suspension and the discharge. Regardless of the reason given by the employer in its notice to Summer, when Summer could not establish that his incarceration was wrongful, that misconduct was the cause of his discharge. See Grushus v. Minnesota Mining & Mfg. Co., 257 Minn. 171, 174-76, 100 N.W.2d 516, 519-20 (1960) (employee unable to accept work because of incarceration for commission of offense to which he entered guilty plea was properly disqualified from benefits; "[h]is illegal act resulting in his arrest and incarceration was the cause of his [unemployment]").

We need not consider Summer's due process argument that, when the employer was permitted to argue the discharge was for incarceration rather than a voluntary quit, Summer was prevented from presenting evidence that the employer applied a different discharge policy than was written in its handbook. Once Summer was discharged, the only issue relevant to his receipt of reemployment benefits was whether he became "unemployed through no fault of [his] own." Minn. Stat. § 268.03 (1996). Absences due to incarceration are the fault of the employee and disqualify the employee from benefits. See Grushus, 257 Minn. at 175-76, 100 N.W.2d at 520; Smith, 343 N.W.2d at 45.