This opinion will be unpublished and.

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







Cindy Y. Lindsay,





White Earth Land Recovery Project,



Commissioner of Employment and Economic Development,




Filed October 7, 2003


Lansing, Judge

Dissenting, Schumacher, Judge


Department of Employment and Economic Security

File No. 9982 02



Amber J. Ahola, Anishinabe Legal Services, Inc., Post Office Box 157, Cass Lake, MN 56633 (for relator)


David J. Goldstein, Angela M. Crandall, Faegre & Benson LLP, 2200 Wells Fargo Center, 90 South Seventh Street, Minneapolis, MN 55402-3901 (for respondent White Earth Land Recovery Project)


Lee B. Nelson, Philip B. Byrne, Department of Employment and Economic Development, 390 North Robert Street, St. Paul, MN 55101 (for respondent Commissioner)


            Considered and decided by Lansing, Presiding Judge, Toussaint, Chief Judge, and Schumacher, Judge.

U N P U B L I S H E D   O P I N I O N


            A discharged administrative assistant appeals, by writ of certiorari, the determination of a commissioner's representative that she committed employment misconduct disqualifying her from receiving unemployment benefits.  Because the record supports the representative's determination of misconduct within the meaning of Minn. Stat. § 268.095, subd. 6(a) (2002), we affirm.


White Earth Land Recovery Project (White Earth) hired Cindy Lindsay as an administrative assistant in August 1999.  On January 24, 2002, Lindsay, who was at home, saw a newspaper advertisement announcing a vacant administrative assistant position at White Earth.  Believing the advertised position to be her own, Lindsay became extremely upset and called her supervisor to see if she was being discharged.  The supervisor informed Lindsay she was not being discharged and told her to come to work to discuss the matter, which Lindsay did not do. 

            The next day, a physician advised Lindsay to take a medical leave of absence from work to receive treatment for depression and work-related stress.  Lindsay began the leave that day.  Lindsay’s doctor provided a memo to White Earth stating that she was being treated for depression and “is advised not to return to work until Monday, January 28.”  On January 28 another doctor sent a memo stating that Lindsay was advised not to return to work until February 4, 2002.  On February 4, 2002, this doctor sent a follow-up memo saying Lindsay is “advised not to return to work until February 18, 2002.”  On February 19, 2002, Lindsay’s doctor sent a memo saying that Lindsay is “encouraged” not to resume employment until March 4, 2002.  On March 3, 2002, Lindsay’s doctor sent a memo saying Lindsay was advised not to return to work until she had met with the board, but “is expected to return to work once the board has met.”

On March 26 Lindsay met with the board chair, who instructed Lindsay to discuss her job status with her supervisor because the board would not address the issue.  Lindsay refused to meet with her supervisor and did not subsequently contact anyone at White Earth.  Lindsay’s doctor sent a memo on March 26, 2002, saying Lindsay is “not comfortable returning to work” until there is a resolution of her “job status and conflict issues.”  On April 30 White Earth sent Lindsay a letter stating her employment benefits had been cancelled as of April 1 because she had not been working 40 hours a week as required by White Earth's insurance provider. 

On May 12 Lindsay filed a claim for unemployment benefits with the Minnesota Department of Economic Security (now known as the Minnesota Department of Employment and Economic Development).  Lindsay’s doctor submitted a medical statement that Lindsay was unable to work from November 26, 2001, to March 3, 2002, and that her current ability to work was limited only until the requested board mediation occurred.  An unemployment law judge determined Lindsay's prolonged absence from work was excused by written statements from her treating doctor and did not constitute misconduct disqualifying her from receiving unemployment benefits.  A representative of the Commissioner of Economic Security reversed that decision, reasoning that Lindsay's refusal to comply with the board chair's instruction to meet with her supervisor constituted disqualifying employment misconduct.  The department also issued Lindsay a determination of overpayment of benefits in the amount of $6,235, which Lindsay was required to repay.  Lindsay appealed the denial of benefits by writ of certiorari.


An employee discharged for misconduct is not eligible for unemployment benefits. Minn. Stat. § 268.095, subd. 4(1) (2002).  Employment misconduct includes "any intentional conduct . . . that disregards the standards of behavior that an employer has the right to expect of the employee."  Minn. Stat. § 268.095, subd. 6(a)(1) (2002); see also Houston v. Int'l Data Transfer Corp., 645 N.W.2d 144, 149 (Minn. 2002) (explicating statutory definition).

Whether a former employee is disqualified from receiving unemployment benefits is a mixed question of fact and law.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  The determination of whether the employee committed a particular act is a question of fact.  Colburn v. Pine Portage Madden Bros., Inc., 346 N.W.2d 159, 161 (Minn. 1984).  A determination that a particular act constitutes employment misconduct is a question of law.  Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996).  This court defers to the factual determinations of the commissioner's representative if they are reasonably supported by evidence in the record, but exercises independent judgment with respect to questions of law.  Id.

            Lindsay argues that her absence was excused by her doctor through April 30, the date her benefits were terminated, and that her failure to return to work cannot therefore constitute employment misconduct.  We disagree.  The letters from her doctors provided a medical reason for her inability to work until March 3.  The March 3 and March 26 letters from Lindsay’s doctor requested that Lindsay be excused from work until she could meet with the board to resolve her job status.  The letters did not provide a medical reason for why Lindsay was unable to work.  The medical statement that Lindsay’s doctor submitted to the department stated that she was unable to work only until March 3, 2002, and the single limitation after that time was a meeting with the board.

On March 26, Lindsay met with the board chair, who instructed her to discuss her issues with her supervisor, which Lindsay refused to do; she made no subsequent effort to return to work or contact the board again to arrange a meeting.  When the board chair told her that the board would not meet with her and she must discuss her employment issues with her supervisor, any conditionally excused absence was no longer excused.

An employee's refusal to comply with an employer's request constitutes misconduct "if the request of the employer is reasonable and does not impose an unreasonable burden on the employee."  Sandstrom v. Douglas Mach. Corp., 372 N.W.2d 89, 91 (Minn. App. 1985); see also Gilkeson v. Indus. Parts & Serv., Inc., 383 N.W.2d 448, 452 (Minn. App. 1986) (stating employee's tendency to "ignor[e employer's] directions and requests" demonstrated disregard for employer's interests and constituted misconduct).

The board chair reasonably instructed Lindsay to contact her supervisor to discuss her job status.  Lindsay's refusal to comply with this instruction or otherwise take steps to return to work constituted misconduct.  See Fresonke v. St. Mary's Hosp., 363 N.W.2d 328, 330 (Minn. App. 1985) (holding employee committed disqualifying misconduct by disregarding a supervisor's directive that he return to work following a medical leave of absence).

            Lindsay also argues her conduct did not rise to the requisite level of intent to constitute misconduct.  Intentional conduct need only be "deliberate and not accidental."  Houston, 645 N.W.2d at 149 (citations omitted).  Lindsay's refusal to return to work or to contact her supervisor was deliberate and not accidental.  Her refusal to contact her supervisor after being told to do so by the White Earth board chair disregarded the standards of behavior that White Earth had the right to expect of her and therefore constituted employment misconduct within the meaning of Minn. Stat. § 268.095, subd. 6(a).




ROBERT H. SCHUMACHER, Judge (dissenting)

I respectfully dissent.  I do not believe Lindsay's failure to return to work after the March 26 meeting with the board chair constituted misconduct within the meaning of Minn. Stat. § 268.095, subd. 6(a)(1) (2002), and would therefore reverse the commissioner's representative's determination that Lindsay was disqualified from receiving benefits.

"[A]bsence because of illness . . . with proper notice to the employer [is] not employment misconduct."  Minn. Stat. § 268.095, subd. 6(b) (2002).  It is undisputed here that as of the March 26 meeting, Lindsay was on an approved leave of absence to receive medication and therapy for depression and job-related stress.  Her absence following the March 26 meeting was based on a good-faith belief in the continuing validity of her medical excuse and an understanding the board would contact her to discuss her job status before she returned to work.  I cannot conclude Lindsay acted with sufficient intentional disregard for White Earth's interests to justify characterizing her absence as misconduct.  See Prickett v. Circuit Sci., Inc., 518 N.W.2d 602, 605 (Minn. 1994) (holding absenteeism attributable to causes other than disregard for employer's interest does not generally constitute misconduct).  I believe these facts, taken together, preclude a conclusion that Lindsay committed misconduct.

I also write because it seems unjust to compel Lindsay to repay the $6,235 in benefits she received prior to the determination that she was disqualified.  In Minnesota, unemployment benefits paid to a claimant who is ultimately determined to be disqualified are considered overpayments that must be repaid.  Minn. Stat. §§ 268.18, subd. 1(a)(4), 268.103, subd. 6 (2002).  I believe this statutory provision is unfair in light of the public purpose of the unemployment insurance law and under the circumstances typically present in unemployment-benefits appeals.  Unemployment benefits "provid[e] workers who are unemployed through no fault of their own a temporary partial wage replacement to assist the unemployed worker to become reemployed."  Minn. Stat. § 268.03, subd. 1 (2002).  To require individuals to repay these benefits, which are presumably spent on basic necessities as they are received, because a prior determination by an unemployment law judge is subsequently reversed strikes me as a penalty contrary to the beneficent public purpose of the Minnesota Unemployment Insurance Program.  A benefits claimant should not be made to assume financial responsibility for an unemployment law judge's decision.  The legislature should correct this anomaly.