This opinion will be unpublished and may
not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).


Linda L. West,


Tubs, Inc.,

Commissioner of Economic Security,

Filed December 28, 1999
Lansing, Judge

Department of Economic Security
Agency File No. 866UC99

James A. Mogen, Jr., Certified Student Attorney, Roger Haydock, Supervising Attorney, William Mitchell College of Law, 875 Summit Avenue, St. Paul, MN 55105 (for relator)

Tubs, Inc., 1431 West 32nd Street, Minneapolis, MN 55408 (pro se respondent)

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

Considered and decided by Lansing, Presiding Judge, Shumaker, Judge, and Foley, Judge.[*]

U N P U B L I S H E D   O P I N I O N


Linda West appeals the department's denial of reemployment benefits based on a finding of misconduct. West contends that her former employer failed to show discharge for misconduct within the meaning of Minn. Stat. § 268.095, subd. 6 (1998). Because the record does not support the commissioner's representative's finding of discharge for misconduct, we reverse.


In April 1998, Linda West began work as a customer service representative for Tubs, Inc., a rental company for small garbage dumpsters. West worked long hours, usually 60 or more hours a week. David and Sara Russick, president and vice-president of Tubs, discussed with West their need for more employees and also discussed the work stress that West was experiencing. In July 1998, the work stress combined with the death of a loved one caused West to suffer a breakdown. The Russicks encouraged West to work fewer hours, but she continued to work the longer hours to complete what needed to be done.

In December 1998, West's problems with stress and burnout intensified, and on Monday, December 7, she left a message on the voicemail at Tubs that she would be unable to work that day. Sara Russick called West at home Monday evening, and West said she did not know when she could return to work, but that she likely would not be able to return Tuesday. West did not work Tuesday. On Wednesday she left another message on voicemail at Tubs saying she would not be in that day and that she wanted to talk with Sara Russick outside of work.

On Thursday West set out for work and on her way called Sara Russick. Russick told her that they should talk outside of work, but that it was not convenient until the weekend. Russick said she would try to call West on Saturday. West interpreted this exchange to mean that she should not come in to work on Thursday or Friday. Russick did not call on Saturday. West tried to call Russick, and Russick returned West's call on Sunday. Russick told West that because she had not come to work, they concluded that she had resigned, and they had already arranged to advertise for her position. Russick acknowledged that during the conversation she "got the indication that [West] didn't necessarily want to resign."

West applied for reemployment benefits, and Tubs responded that West had voluntarily quit. The Department of Economic Security found that West was discharged for misconduct and denied reemployment benefits. On appeal, a reemployment insurance judge awarded West benefits, but that award was reversed by a commissioner's representative, who reaffirmed the department's initial determination of misconduct. West now appeals.


The court's review in economic security cases is narrow. McGowan v. Executive Express Transp. Enters., 420 N.W.2d 592, 594 (Minn. 1988). We view the commissioner's factual findings in the light most favorable to the decision and sustain those findings when the evidence in the record reasonably tends to support them. Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996). Whether the facts meet the statutory standard for disqualification, however, is a question of law on which reviewing courts exercise independent judgment. Id.

Because the economic security laws are remedial in nature, we narrowly construe the disqualification provisions. McGowan, 420 N.W.2d at 595. An employee is presumed eligible for benefits following discharge; the employer has the burden of proving disqualification by a preponderance of the evidence. McGowan, 420 N.W.2d at 595; Minn. Stat. § 268.03, subd. 2 (1998). Misconduct includes intentional conduct that demonstrates disregard for the employer's interests, the employer's reasonable standards of behavior, or the employee's duties. McGowan, 420 N.W.2d at 595. But if an employee's alleged misconduct is not the basis for the employee's discharge, the misconduct evidence is not relevant to whether the employee should be disqualified from receiving compensation. Harringer v. AA Portable Truck & Trailer Repair, Inc., 379 N.W.2d 222, 224 (Minn. App. 1985).

The record does not support the commissioner's representative's finding that West was discharged for misconduct. The Russicks have not alleged misconduct, have consistently denied that West was discharged, and have testified to no deficiencies in West's job performance. Sara Russick testified that she was sorry to lose West because "we wanted her to work with us" and in summarizing their position said, "we had no reason to let Linda go * * *. There was absolutely nothing prior to this that would make us want to let her go or fire her." The only basis for discharge supported by the record is mistake. That is, the Russicks discharged West because they mistakenly believed she had resigned her position. On these facts, the commissioner's representative erred in finding discharge for misconduct.

Even if West had been discharged for misconduct, the record does not support a finding that her absences during the week of December 7 constituted misconduct. Although unexcused absence from work may amount to misconduct, Minnesota courts have recognized a distinction between absenteeism evidencing an employee's disregard for the employer's interest and absenteeism attributable to other causes. See Prickett v. Circuit Science, Inc., 518 N.W.2d 602, 605 (Minn. 1994) (absenteeism not misconduct); McCourtney v. Imprimis Technology, Inc., 465 N.W.2d 721, 725 (Minn. App. 1991) (same); Blau v. Masters Restaurant Assocs., 345 N.W.2d 791, 794 (Minn. App. 1984) (absenteeism constitutes misconduct). When the circumstances do not overwhelmingly demonstrate deliberate or willful culpability, analysis shifts to the employee's history, conduct, and underlying attitude. McCourtney, 465 N.W.2d at 725. This analysis is aimed at the subjective intent of the person accused of misconduct. Fujan v. Ruffridge-Johnson Equip., 535 N.W.2d 393, 396 (Minn. App. 1995) (citing Ferguson v. State, Dep't of Employment Servs., 311 Minn. 34, 38, 247 N.W.2d 895, 897 (Minn. 1976)).

West's absenteeism does not evidence a disregard of her employer's interest. West was a hardworking employee who had never called in sick prior to December 7. The Commissioner argues that West was absent without notice during the week of December 7. But a careful examination of the record reveals that West communicated her need to miss work to her employer for Monday through Wednesday and believed that she was excused from work Thursday and Friday. A good-faith error in complying with an employer's policies is not misconduct. See Tilseth v. Midwest Lumber Co., 295 Minn. 372, 374-75, 204 N.W.2d 644, 646 (1973); Tuckerman Optical Corp. v. Thoeny, 407 N.W.2d 491, 493 (Minn. App. 1987). The record substantiates that West was suffering from health-related problems stemming from the demands of her job and that the Russicks were aware of these problems and sought to accommodate them. West's absences resulted from her physiological and psychological problems and did not evidence a disregard for her employer's interests. Taken together, these facts preclude a finding that West committed misconduct.

The record fails to support the commissioner's representative's finding that West was discharged for misconduct or that her actions constituted misconduct. We therefore reverse the commissioner's representative's determination that West was not entitled to reemployment benefits.


[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.