This opinion will be unpublished and

may not be cited except as provided by

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






Deborah C. Sipe,





Ability Building Center, Inc.,



Commissioner of Economic Security,



Filed July 9, 2002


Willis, Judge


Department of Economic Security

File No. 813101


Deborah C. Sipe, 4436 East Edgewood Avenue, Mesa, AZ  85206 (pro se relator)


Ability Building Center, Inc., c/o Sheakley Uniservice, Inc., 244 Juniper Lane, Bolingbrook, IL  60440 (respondent)


Philip B. Byrne, Department of Economic Security, 390 N. Robert Street, St. Paul, MN  55101 (for respondent commissioner)


            Considered and decided by Shumaker, Presiding Judge, Willis, Judge, and Foley, Judge.*

U N P U B L I S H E D   O P I N I O N


            Relator challenges the decision of the commissioner’s representative that she was disqualified from receiving unemployment benefits because she was discharged for misconduct.  Because (1) relator intentionally engaged in misconduct by failing to follow the employer’s policies regarding absences from work and by taking time off without approval, (2) the relevant findings of fact were not clearly erroneous, and (3) relator was given a fair hearing, we affirm.


            Respondent Ability Building Center, Inc., operates a training and rehabilitation program for people with mental retardation.  Relator Deborah C. Sipe was employed as a work-site supervisor, whose duties included training and supervising clients at their work sites.  As Sipe knew, if she was going to miss work, Ability’s procedure required her to report her absence to the coordinator on call.

            On Monday, June 4, 2001, a day on which she was not scheduled to work, Sipe called a co-worker and told her that, due to personal problems, Sipe would be unable to work that week.  She asked the co-worker to inform Ability.  Although the co-worker did so, she also called Sipe back later that day and told her that their supervisor had said that Sipe must report her planned absence to the coordinator on call.  Sipe did not do so.  She testified at the hearing that because of her personal problems, she was unable to make any additional calls.

            On Tuesday, Sipe did not report to her work site as scheduled.  The coordinator on call telephoned Sipe at her home that morning to ask why she was not at work and told Sipe that she had to report her absence to the coordinator on call.  Sipe responded that the telephone conversation that they were having constituted such a report.  When the coordinator asked Sipe the reason for her absence, Sipe stated that it was for personal reasons that she did not wish to disclose.  The coordinator told Sipe that she could not have the time off from work; Sipe responded that she would be unable to report to work.

On Wednesday evening, Sipe called her supervisor to talk to her regarding returning to work the following day.  The supervisor told Sipe that she would need to discuss the situation with Ability’s program manager because he was looking for a replacement for Sipe.  Sipe did not call the manager and did not report to work on Thursday.

            On Friday morning, the program manager called Sipe twice to discuss the situation.  The parties agree that after the second conversation, Sipe was no longer employed by Ability.

Sipe applied to the Department of Economic Security for unemployment benefits, and the department determined that she was qualified to receive benefits.  Ability appealed, and a hearing was held before an unemployment-law judge.  The judge ruled that Sipe was not qualified to receive benefits because she had been discharged for misconduct.  Sipe sought review from the commissioner’s representative, who affirmed the unemployment-law judge.  Sipe then filed this certiorari appeal.


When an appellate court reviews a decision of the commissioner’s representative, the court will not reverse findings of fact if they are reasonably supported by the evidence.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  Questions of law are reviewed de novo.  Markel v. City of Circle Pines, 479 N.W.2d 382, 384 (Minn. 1992).  The determination of whether an employee engaged in disqualifying misconduct is a mixed question of fact and law. Schmidgall, 644 N.W.2d at 804.  Whether particular acts by an employee constitute misconduct is a question of law to be reviewed de novo.  Id.

Sipe’s principal argument on appeal is that she did not engage in disqualifying misconduct.[1]  An employee who is discharged for employment misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4(1) (2000).  Under the current statutory scheme, employee misconduct is defined in relevant part as

any intentional conduct, on the job or off the job, that disregards the standards of behavior that an employer has the right to expect of the employee or disregards the employee’s duties and obligations to the employer.


Id., subd. 6(a)(1) (2000).  The statute further provides that employment misconduct does not include “poor performance because of inability or incapacity, or absence because of illness or injury with proper notice to the employer.”  Id., subd. 6(b) (2000).

The supreme court has recently interpreted the statutory definition of misconduct.  Houston v. Int’l Data Transfer, 645 N.W.2d 144, 149 (Minn. 2002).  First, the statute requires that the conduct must be intentional, which the court interpreted to mean that it “must be deliberate and not accidental.”  Id. (citations omitted).  Applying this standard to the facts in this case, there is no claim that Sipe’s conduct was accidental; therefore, this prong is satisfied.

Second, the conduct must disregard either “the standards of behavior that an employer has the right to expect” or “the employee’s duties and obligations to the employer.”  Minn. Stat. § 268.095, subd. 6(a)(1).  At issue in Houston was whether the disregard as well as the conduct must be intentional.  645 N.W.2d at 148.  The employee argued that an employee must have had the “intent to produce the result of violating such a standard.”  Id.  The employer contended that “only the conduct need be intentional, not the disregard itself.”  Id. at 149.  The supreme court concluded that the requirement of intent applies both to the conduct in question and to the disregard of the employer’s standards of behavior or the duties and obligations owed to the employer by the employee.  Id. at 150.  Thus, there must be a showing

that the employee not only engaged in intentional conduct, but also intended to, or engaged in conduct that evinced an intent to, ignore or pay no attention to his or her duties and obligations or the standards of behavior the employer has a right to expect.


Id.  Therefore, we must address whether Sipe intended to disregard her duties or her employer’s standards of behavior.

It is undisputed that Ability required that employee absences be reported to the coordinator on call and that Sipe did not report her first day of absence to the coordinator on call.  Further, the commissioner’s representative’s finding of misconduct was not based solely on Sipe’s failure to report her first day of absence to the coordinator on call.  She also failed to report to work the next day after the coordinator on call told her that she was not excused from work.  She ignored her supervisor’s advice that she discuss her absences with the manager.  Instead, when she had not reported to work by Friday, the manager called her twice at home.    

“As a general rule, refusing to abide by an employer’s reasonable policies and requests amounts to disqualifying misconduct.”  Schmidgall, 644 N.W.2d at 804 (citation omitted).  Thus, “an employee’s decision to violate knowingly a reasonable policy of the employer is misconduct.”  Id. at 806 (citation omitted).  An employee who leaves work without permission, does not contact a supervisor as directed to report an absence, or takes time off after the employer has denied a request for time off will be deemed to have engaged in disqualifying misconduct.  Del Dee Foods, Inc. v. Miller, 390 N.W.2d 415, 417 (Minn. App. 1986).  Under limited circumstances, if the absence is brief or the employee showed a single, good-faith error of judgment, it may not be considered misconduct.  Id. at 418.  Sipe’s conduct clearly meets the requirement that she intended to disregard reasonable standards of behavior that Ability had a right to expect.

            Sipe also contends that she complied with Ability’s reporting rule to the best of her ability under the circumstances and that it was unreasonable to require her to make a second telephone call to Ability when she had already called her co-worker, who informed Ability of Sipe’s planned absence.  She argues that because of her personal problems, she was incapable of complying with Ability’s policy.  An absence due to illness or injury that the employee properly reports to the employer may not constitute employee misconduct.  Minn. Stat. § 268.095, subd. 6(b).  But here the absence was not due to illness or injury but was for undisclosed personal reasons.  Likewise, an employee who performs poorly at work because of incapacity does not engage in disqualifying misconduct.  Id.  But Sipe did not report to work.  The commissioner’s representative did not err in determining that Sipe engaged in disqualifying misconduct under the statute.

Sipe challenges several of the commissioner’s representative’s findings, most of which were made on conflicting testimony and are reasonably supported by the evidence.  While one challenged date was implicitly acknowledged as incorrect by the commissioner, none of the disputed dates affects the decision on appeal.

Sipe contends that she did not receive a fair hearing, asserting that the unemployment-law judge did not understand why, after Sipe spoke with her co-worker, Sipe was unable to make a second telephone call to report her absence to the coordinator on call.  She argues that the judge failed to assist her in exploring factual contradictions in the testimony of Ability’s witnesses.  An unemployment-law judge must assist unrepresented parties like Sipe in presenting evidence, control the hearing so as to protect the parties’ rights to a fair hearing, and ensure that the facts are clearly and fully developed.  Minn. R. 3310.2921 (2001).  A review of the transcript reveals that the facts were clearly presented to the judge, that Sipe highlighted contradictions in the testimony of Ability’s witnesses, and that she received a fair hearing.

The decision of the commissioner’s representative is affirmed.


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



[1]While Ability asserted at the hearing that Sipe resigned, the commissioner’s representative found that she was discharged.  This finding is not challenged on appeal.