This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




Carrie J. Aydt,



Minnegasco/Minn Loc Noram Energy,


Commissioner of Economic Security,


Filed July 20, 1999


Shumaker, Judge

Department of Economic Security

Agency File No. 6687UC98

Stephen W. Cooper, Kathryn J. Cima, Stacey R. Everson, The Cooper Law Firm, 800 Ceresota Building, 155 Fifth Avenue South, Minneapolis, MN 55401 (for relator)

Michael I. Fahey, Minnegasco/Min Loc Noram Energy, 800 LaSalle Avenue, P.O. Box 59038, Minneapolis, MN 55402 (for respondent-employer)

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

Considered and decided by Peterson, Presiding Judge, Short, Judge, and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N


By writ of certiorari, relator Carrie J. Aydt appeals the denial of reemployment benefits, arguing that her failure to pursue outpatient treatment was not misconduct and did not adversely affect her employment. We affirm.


Relator Carrie J. Aydt began working for respondent Minnegasco in 1977. From March 12 to May 20, 1998, Aydt took a leave of absence because of depression, panic disorder and alcohol abuse. From April 23 to April 27, 1998, Aydt was in the hospital for in-patient alcohol dependency treatment. On May 11, 1998, she was scheduled to start an intensive outpatient program. However, she failed to make her May 11 appointment because she stayed home with a sick horse. Aydt again failed to start the program on May 12, 1998 because she was ill. On May 14, 1998, Aydt failed to make a medical appointment because she did not have transportation. Because of these absences, Minnegasco informed Aydt in a letter she received on May 18, 1998, that she had been removed from approved leave as of May 11, 1998. The letter also informed Aydt that an employee absent for three consecutive days is deemed to have quit and instructed Aydt to attend a meeting with her supervisors at 7:30 a.m. on May 20, 1998.

On May 19, 1998, Aydt met with her nurse practitioner who told her that she had to start outpatient treatment. According to the nurse practitioner, Aydt agreed to start treatment the evening of May 19. According to Aydt, the nurse practitioner did not tell Aydt that she needed to start that night. The nurse practitioner then told Minnegasco that she would not support further medical leave if Aydt did not follow through with chemical dependency treatment. Aydt did not report for treatment on May 19, 1998 and the nurse practitioner reported her failure to Minnegasco. Aydt knew that she was required to attend the meeting on May 20, but she did not attend or call her supervisors.

Minnegasco terminated Aydt's employment on May 20, 1998 after she failed to attend the meeting scheduled for that morning. Aydt applied for reemployment benefits, and the Department of Economic Security determined that Aydt voluntarily quit her employment and was disqualified from receiving benefits. On appeal, the reemployment insurance judge reversed the initial determination of ineligibility. The reemployment insurance judge found that Aydt did not quit because "the employer made the decision that the claimant's employment would end." Minnegasco appealed to the commissioner's representative who found that Aydt "engaged in intentional conduct showing a disregard of the employer's interests of standards of behavior." Based on this finding, the commissioner's representative determined that Aydt was terminated for disqualifying misconduct and reversed the decision of the reemployment insurance judge. Aydt appeals.


Whether an employee has committed misconduct is a mixed question of fact and law. Colburn v. Pine Portage Madden Bros., 346 N.W.2d 159, 161 (Minn. 1984). The commissioner's representative's findings must be viewed in the light most favorable to the decision, and a reviewing court will not disturb these findings if there is evidence reasonably tending to sustain them. White v. Metropolitan Med. Ctr., 332 N.W.2d 25, 26 (Minn. 1983). Whether the commissioner's representative properly disqualified an employee from receiving reemployment insurance on these facts is, however, a question of law upon which an appellate court is "free to exercise its independent judgment." Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).

The burden is on the employer to prove that an employee committed misconduct. Id. Minn. Stat. § 268.09, subd. 12 (Supp. 1997) defines misconduct as

intentional 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.

We have recognized that absenteeism may constitute disqualifying misconduct if it shows an employee's disregard for the employer's expectations. Del Dee Foods, Inc. v. Miller, 390 N.W.2d 415, 418 (Minn. App. 1986).

If an employee is discharged for misconduct because of serious illness, the employee is not necessarily disqualified from receiving benefits. Minn. Stat. § 268.09, subd. 10 (1)(i)(Supp. 1997). The employee is required to make reasonable efforts to retain his employment in spite of the serious illness. Id. In determining what is a reasonable effort to retain employment, the commissioner's representative must determine what is reasonable for the particular employee under the circumstances of that case. Moeller v. Minnesota Dep't of Transp., 281 N.W.2d 879, 882 (Minn. 1979).

The record demonstrates that Aydt missed medical appointments on May 11 and May 14, 1998, failed to commence outpatient treatment on May 19, and failed to attend a meeting with her supervisors on the morning of May 20, 1998. These multiple absences constituted misconduct, even if they were caused by Aydt's psychological and physical ailments. See Jones v. Rosemount, 361 N.W.2d 118, 120 (Minn. App. 1985) (holding that a pattern of persistent absence constitutes misconduct, regardless of the reason for the absence).

The next question is whether Aydt's misconduct disqualifies her from receiving reemployment benefits. If Aydt's misconduct was a result of a serious personal illness and she made reasonable efforts to retain her employment, Aydt remains qualified for reemployment benefits. Moeller, 281 N.W.2d at 882.

The record indicates that Aydt suffered from serious illnesses, including panic disorder, depression and alcohol dependency. See Minn. Stat. § 268.09, subd. 10(1)(i) (recognizing chemical dependency as a serious illness). Aydt contends that she "made every effort to try to get help" within the constraints of her illnesses and that her failure to attend outpatient treatment was caused by her serious illnesses. When viewed in a light most favorable to the decision, however, the record demonstrates that Aydt missed her first outpatient appointment because her horse was ill. The record also indicates that Aydt missed her May 14, 1998, appointment because she did not have transportation. Although she agreed to do so, Aydt failed to begin outpatient treatment on May 19, 1998. With regard to the May 20 meeting, Aydt testified that she did not know why she failed to call and inform her supervisors that she would not be attending, but she admitted that she was capable of calling. On each of these occasions, Aydt failed to seek treatment because of personal concerns that were not directly related to her illnesses. Accordingly, the record supports the commissioner's representative's conclusion that Aydt's absences were not a result of her serious illnesses.

Finally, Aydt contends that she was not "discharged because of misconduct that interfered with and adversely affected that employment." Minn. Stat. § 268.09, subd. 10(1) (emphasis added). Because Aydt was on medical leave and missed no work assignments, she argues that her employment with Minnegasco was not harmed by her failure to attend outpatient treatment or her scheduled meeting with her supervisors. We disagree. In order to be disqualified from receiving reemployment benefits, an employee's misconduct need not actually harm the employer. Rather, the misconduct must only adversely affect the claimant's employment. Id. In this case, Minnegasco permitted Aydt's medical leave and requested that she attend outpatient treatment, in part, so that she could improve her health and return to the workplace. By failing to honor those reasonable requests and maintain her treatment, Aydt limited her ability to return to work. In that way, Aydt's actions adversely affected her employment with Minnegasco. When viewed in a light most favorable to the decision of the commissioner's representative, the evidence supports the finding that Aydt was discharged for disqualifying misconduct.