This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).







J.R. Burger,





Viking Drill & Tool, Inc.,



Commissioner of Economic Security,




Filed December 11, 2001

Klaphake, Judge


Department of Economic Security

File No. 58001


J. R. Burger, 2914 East 25th Street, #1, Minneapolis, MN  55406 (pro se relator)


John Rolland Neve, Autumn I. Hurias, Rider, Bennett, Egan & Arundel, LLP, 333 South Seventh Street, Suite 2000, Minneapolis, MN  55402 (for respondent Viking Drill & Tool)


Philip B. Byrne, Minnesota Department of Economic Security, 390 North Robert St., St. Paul, MN  55101 (for respondent Commissioner)


            Considered and decided by Klaphake, Presiding Judge, Schumacher, Judge, and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N


            Pro se relator J.R. Burger challenges a determination by a representative of respondent Commissioner of Economic Security that he was discharged due to employment misconduct after he repeatedly failed to give his employer, respondent Viking Drill & Tool, Inc. (Viking), proper notice of his absences or late arrivals.  Relator argues that his conduct did not constitute employment misconduct because he was absent due to illness and was using leave protected under the Family and Medical Leave Act (FMLA).  Because the commissioner’s representative was entitled to reject relator’s claim that illness prevented him from calling in to report his absences and because the record reasonably supports the decision of the commissioner’s representative, we affirm.


            Our review of unemployment insurance law cases is very narrow and limited to determining whether the record reasonably supports the decision of the commissioner’s representative.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995); Cent. Specialties v. Comm’r of Econ. Sec., 622 N.W.2d 833, 835 (Minn. App. 2001), review denied (Minn. May 15, 2001).

            “Employment misconduct” is defined as any intentional conduct that “disregards the standards of behavior that an employer has the right to expect of the employee” or any negligent conduct that “demonstrates a substantial lack of concern for the employment.”  Minn. Stat. § 268.095, subd. 6(a) (2000).  While “absence because of illness or injury” is not employment misconduct, proper notice still must be given to the employer.  Minn. Stat. § 268.095, subd. 6(b); Kemp v. U.S. Dep’t of Agric., 385 N.W.2d 879, 882 (Minn. App. 1986).  Consistent with this, Viking’s human resources director testified that Viking does not take points away from an employee under its no-fault attendance policy if an absence or late start is due to health reasons, as long as the employee gives proper notice pursuant to the attendance policy or “as soon as practical under the FMLA.”

            The commissioner’s representative concluded:

The evidence in the present record shows that [relator] was clearly placed on notice that his attendance was unsatisfactory.  The evidence also shows that [relator] on several occasions was absent or tardy without calling in and in accordance with the employer’s attendance policy.  While it is true that some of [relator’s] absences from work were related to illness, we do not find that [relator’s] failure to call-in in accordance with the employer’s policy was because of illness.  [Relator’s] doctor’s statement to the employer stated that the doctor was not aware of any reason why [relator’s] illness would prevent him from calling the employer.


We defer to the commissioner’s representative, who obviously rejected relator’s claim that on several occasions illness prevented him from calling in prior to the start of his shift.  See Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995) (where witness credibility and conflicting evidence are at issue, this court defers to commissioner’s representative’s ability to weigh evidence and make those determinations).  The record easily supports the conclusion that relator’s excessive absenteeism and failure to properly notify Viking that he would be late or absent from work, whether due to illness or for other reasons, demonstrated a substantial disregard for Viking’s interests and constituted employment misconduct.

            We therefore affirm the decision of the commissioner’s representative that relator was discharged for employment misconduct.