This opinion will be unpublished and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
C2-98-357

Marie J. Sanchez,
Relator,

vs.

Marshall Manor Good Samaritan Center,
Respondent,

Commissioner of Economic Security,
Respondent.

Filed September 22, 1998
Affirmed
Amundson, Judge

Commissioner of Economic Security
File No. 9229 UC 97

John A. Winters, 107 West Second Street, P.O. Box 434, Crookston, MN 56716 (for relator)

Marshall Manor Good Samaritan Center, 410 South McKinley Street, Warren, MN 56762 (respondent)

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

Considered and decided by Kalitowski, Presiding Judge, Schumacher, Judge, and Amundson, Judge.

U N P U B L I S H E D   O P I N I O N

AMUNDSON, Judge

Relator challenges the respondent commissioner's representative's decision that respondent employer dismissed her for misconduct. She argues that her absences did not reflect the requisite lack of concern for her employment and that her behavior on her last day was an isolated hotheaded incident. We affirm.

FACTS

On October 2, 1996, relator Marie J. Sanchez began work as a nursing assistant at respondent Marshall Manor Good Samaritan Center (Marshall Manor). Between January 1 and July 28, 1997, she missed work 12 times, either because of her own illness, illness of members of her family, or an unexcused absence. On July 28, 1997, Sanchez was given verbal warning that her absences were excessive. Sanchez missed seven days of work in August and September for various reasons including illness, taking her husband to his medical appointments, and a death in the family. She generally notified Marshall Manor the morning of her absences. On September 27, 1997, Marshall Manor gave Sanchez a written warning regarding her unexcused absences and her irregular attendance.

On October 1, 1997, Sanchez arrived at work and mistakenly believed that she would be the only nursing assistant working in her wing of the facility. She became very upset and reportedly told her coworkers, "I'm going to tell the Director of Nursing to shove the schedule up her ass." The charge nurse explained to Sanchez that she was not the only one working in the wing and persuaded her to stay at work. Sanchez told a coworker that when she went home for lunch, she would not be returning to complete her shift. The coworker told management. Marshall Manor terminated Sanchez at 11:45 a.m. for insubordination and attendance problems.

A reemployment department representative disqualified Sanchez from receiving benefits pursuant to Minn. Stat. 268.09, subd. 10 (1) (Supp. 1997) because she had been discharged for misconduct. Sanchez appealed the decision to a reemployment judge, who affirmed the decision. Sanchez appealed to respondent Commissioner of Economic Security (commissioner); a commissioner's representative found that Sanchez was disqualified for benefits because she was discharged for misconduct. This certiorari appeal followed.

D E C I S I O N

The commissioner's findings, viewed in the light most favorable to the decision, should not be overturned if the record reasonably sustains them. The ultimate question of whether an employee is disqualified from receiving benefits is a question of law that is subject to independent review. Ballin v. Metropolitan Transit Comm'n, 525 N.W.2d 11, 12 (Minn. App. 1994).

Here, the issue is whether Sanchez committed misconduct. Misconduct is defined by statute as:

[I]ntentional conduct showing a disregard of:
(1) the employer's interest;
(2) the standards of behavior that an employer has the right to expect of the employee; or
(3) the employee's duties and obligations to the employer. Misconduct also includes negligent conduct by an employee demonstrating a substantial lack of concern for the employment. Inefficiency, inadvertence, simple unsatisfactory conduct, or poor performance as a result of inability or incapacity are not misconduct.

Minn. Stat. 268.09, subd. 12 (Supp. 1997).

I. Attendance

The commissioner's representative found that Sanchez's attendance problems indicated a substantial lack of concern for her employment, which constitutes misconduct under the statute. Sanchez argues that her missed work does not reflect a lack of concern for her job, especially because virtually all of her absences were related to health problems.

An employee's absence from work may constitute misconduct. Little v. Larson Bus Service, 352 N.W.2d 813, 814-15 (Minn. App. 1984). In particular, an employee's repeated failure to give advance notice of intended absences has been held to constitute misconduct. See, e.g., Kemp v. U.S. Dept. of Agriculture, 385 N.W.2d 879, 882 (Minn. App. 1986) (employee's repeated takings of leave without advance notice, for which he had received warnings, constituted misconduct); Flahave v. Lang Meat Packing, 343 N.W.2d 683, 684 (Minn. App. 1984) (employee's failure to report to work without notice four times constituted misconduct); Edwards v. Yellow Freight Sys., 342 N.W.2d 357 (Minn. App. 1984) (employee's repeated failure to notify employer of absence at least two hours ahead of shift, as required by policy, constituted misconduct).

The facts regarding the absences are not in dispute. Sanchez had been warned that her absences were excessive, yet her attendance continued to be irregular. She also frequently failed to give Marshall Manor adequate notice of her absences. It was not an error of law for the commissioner's representative to conclude that Sanchez's history of absenteeism constituted misconduct under the statute.

II. Actions of October 1, 1997

Sanchez also argues that her actions on October 1, 1997, did not constitute misconduct. First, she argues that the simple use of vulgar language does not constitute misconduct. She cites a case in which an employee used vulgar language toward a supervisor and misconduct was not found, contending that here, not only was her language far less vulgar, but it was not directed at a supervisor. See Mankato Lutheran Home v. Miller, 358 N.W.2d 96, 98 (Minn. App. 1984), review denied (Minn. February 6, 1985). The issue, however, is not only the profanity, but the context in which it was used. Sanchez's behavior, regardless of her use of foul language, was insubordinate. She threatened to not return to work after her lunch; here, even the threat of such action has a disruptive effect on coworkers. Her reliance on Mankato Lutheran Home is misplaced, as the case represents an unusual fact situation. There, the employee, who had had no prior history of misconduct in her five years of employment, was under particular stress at the moment of the outburst because she was concerned that she was having a heart attack, but was worried that she would lose her job if she left work. Id. at 99.

Sanchez also contends that her behavior on October 1 should be excused under the "hotheaded incident" rule. This rule dictates that "an isolated hotheaded incident by an employee which does not adversely affect an employer's business is not 'misconduct'" disqualifying an employee from unemployment benefits. Windsperger v. Broadway Liquor Outlet, 346 N.W.2d 142, 142 (Minn. 1984). In Windsperger, where an employee had a "temper tantrum" over a scheduling conflict with her supervisor, the court held that the behavior was unpremeditated, did not take place in front of other customers, and did not interfere with business to the extent to disqualify the employee from unemployment benefits. Id. Sanchez notes that no resident heard her comments, which were addressed to coworkers. Sanchez's reliance on Windsperger is made tenuous because Windsperger, along with another reemployment insurance case1, has been limited. The supreme court wrote that the two cases "reach into the outer limits of eligibility. We decline to liberalize further the granting of benefits in those two cases." McGowan v. Executive Express Transp. Enter., Inc., 420 N.W.2d 592. 595 (Minn. 1988). We agree that Sanchez's behavior on October 1 was irresponsible to the point of being disruptive to the operation of Marshall Manor.

Sanchez also argues that her speech to her coworkers is constitutionally protected. This position is meritless.

Sanchez's behavior on October 1, following her history of absenteeism, represented the "last straw" for Marshall Manor. The "last straw" doctrine dictates that "repeated infractions of his employer's work rule demonstrate his substantial disregard of his employer's interest and of the duties and obligations that he owed to his employer." Flahave v. Lang Meat Packing, 343 N.W.2d 683, 687 (Minn. App. 1984). The commissioner's representative's determination of misconduct is supported both by the facts and the law.

Affirmed.

1. Sticha v. McDonald's No. 291, 346 N.W.2d 138 (Minn. 1984) ("good-faith error in judgment" in 10-year history of employment did not qualify as misconduct for reemployment insurance purposes).