This opinion will be unpublished and

may not be cited except as provided by

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






Florence J. Lee,





T & K Foods, Inc.,



Commissioner of Employment and Economic Development,



Filed June 1, 2004

Affirmed; motion granted

Huspeni, Judge*



Department of Employment and Economic Development

File No. 8926 03



Lisa Hollingsworth, Southern Minnesota Regional Legal Services, Inc., 15815 Franklin Trail Southeast, Prior Lake, MN 55372; and


Charles H. Thomas, 12 Civic Center Plaza, Suite 3000, P.O. Box 56002, Mankato, MN 56002 (for relator)


T & K Foods, Inc., 8600 114th Avenue North, Champlin, MN 55316 (respondent)


Lee B. Nelson, M. Kate Chaffee, Minnesota Department of Employment and Economic Development, 390 Robert Street North, St. Paul, MN 55101 (for respondent commissioner)


            Considered and decided by Halbrooks, Presiding Judge, Toussaint, Judge, and Huspeni, 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 disqualifying her from receiving unemployment benefits.  In concluding that relator had engaged in misconduct, the representative cited a history of absences from work and a specific no-call/no-show absence, finding that no medical excuse was provided.  Relator argues that the finding that she did not provide a medical excuse was not reasonably supported by the evidence and that the commissioner should have remanded the proceedings to take testimony from a supervisor at relator’s place of employment.  Because substantial evidence in the record as a whole reasonably supports the decision of the commissioner’s representative, and because we conclude that a supervisor’s testimony would not have aided relator, we affirm. 


Relator Florence Lee was employed part-time as a customer service representative at respondent T&K Foods from September 24, 2002, through May 1, 2003.  During the first six months of her employment, she reported ill numerous times and had a number of late arrivals at work.  She received oral warnings for her poor attendance. 

Lee was diagnosed with endometriosis in April 2003 and had surgery for that condition on April 17.  Although she was scheduled for a post-operative doctor’s visit on May 1, she returned to work on April 27, worked part of her shift, and left early to return home.  She was next scheduled to work on April 30, but failed to appear, and did not call to report her absence.  

            Lee established an account with the commissioner for unemployment benefits and was disqualified from receiving benefits because of unemployment misconduct.  At an appeal hearing before an unemployment law judge, Lee testified that when she came to work on April 27, she left a doctor’s note excusing her from further work until her post-operative appointment.  A representative from the employer testified, however, that the employer was unaware of the doctor’s note and that the supervisor working with Lee that day had not mentioned the note.  The employer’s representative also testified that Lee had received previous oral warnings about her job performance.  At the hearing, Lee introduced a duplicate note written by her doctor excusing her until after her post-operative appointment; an original note was never found.  

            The unemployment law judge determined that Lee was entitled to unemployment benefits.  On appeal, the commissioner’s representative reversed, determining that although Lee had a medical condition affecting her ability to work, that condition did not excuse her from providing proper notice to her employer, and that the employer had presented persuasive testimony that Lee did not provide a doctor’s excuse on April 27 so as to give notice that she would not be working on April 30.  The commissioner’s representative found that Lee’s testimony was not credible and that she was disqualified from receiving unemployment benefits because of employment misconduct.  This appeal followed. 



An employee discharged for misconduct is not eligible for unemployment benefits.  Minn. Stat. §  268.095, subd. 4(1) (2002).  Under the version of this statute in effect at the time of Lee’s termination, 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).[1]

            Whether a former employee is disqualified from receiving unemployment benefits is a mixed question of law and fact.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  The determination of whether an employee committed a particular act is a question of fact.  Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  Whether that act constitutes employment misconduct is a legal question.  Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996).  This court reviews the findings of the commissioner’s representative in the light most favorable to the decision, and if there is evidence reasonable to sustain those findings, we will not disturb them.  Schmidgall, 644 N.W.2d at 804.  Recognizing that the unemployment law judge before whom the witnesses appeared found in favor of Lee, we must nonetheless review the decision of the commissioner’s representative, not that of the unemployment law judge, even on issues concerning witness credibility and conflicting evidence.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995). 

            In challenging the decision that she was disqualified from receiving unemployment benefits, Lee argues that the evidence fails to show that she was not under a medical excuse at the time of her discharge and that, because she presented a doctor’s note on April 27, any failure to communicate her later absence did not constitute employment misconduct.  See Houston, 645 N.W.2d at 149 (noting that to be intentional under the statute, conduct must constitute a “deliberate” act that is “not accidental”).  But the company’s representative testified that Lee’s supervisor, who was deemed to be conscientious about leaving notes, was not aware of the doctor’s note, and that although Lee testified that she worked about three hours on April 27, she was actually paid five and one-half hours for that day.  Under the current statutory scheme for determining an award of unemployment benefits, we defer to the commissioner’s representative’s ability to weigh conflicting evidence concerning witness credibility.  Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995).  Under this deferential standard of review, we conclude that the commissioner’s representative could reasonably have believed the employer’s testimony that a doctor’s note was not given to the employer on April 27.

This court has held that even a single absence from work may constitute employment misconduct if the employee has not received permission to be absent and it shows disregard for the employer’s expectations.  Del Dee Foods, Inc. v. Miller, 390 N.W.2d 415, 417 (Minn. App. 1986).  In Fresonke v. St. Mary’s Hosp., 363 N.W.2d 328, 330 (Minn. App. 1985), this court upheld the commissioner’s determination that an employee was disqualified from receiving unemployment benefits when the employee, after his medical leave of absence ended, believed that he was still under doctor’s instructions to not return to work, but failed to so notify the employer.  The employer therefore only knew that he was absent without permission.  Id. at 329.  Similarly, in this case, the employer was unaware that Lee would not be returning for her next scheduled workday.  Lee admitted that she did not notify the employer in any other way that she would not be coming in, but assumed that knowledge based on the events of April 27.  Lee’s failure to notify her employer about her medical circumstances thus may provide grounds for a determination of employment misconduct.  Therefore, we conclude that substantial evidence on the record as a whole supports the commissioner’s representative’s decision.

Lee argues that the commissioner’s representative improperly failed to remand the proceedings to obtain testimony from Lee’s supervisor on duty on April 27, who did not provide direct testimony at the unemployment hearing.  See Minn. Stat. § 268.105, subd. 2(d) (2002) (allowing consideration of further evidence for purpose of deciding whether to remand matter to unemployment law judge for further hearing).  But the employer’s representative testified that the supervisor was not aware of the note, and although hearsay, the commissioner properly considered that evidence in making a decision.  See Minn. Stat. § 268.105, subd. 1(b) (2002) (noting that rules for evidentiary hearing before unemployment law judge need not conform to common law or statutory rules of evidence).  In addition, we note that because additional records submitted after the hearing corroborated the employer’s version of events, a remand for testimony that would have been consistent with that already in the record would have failed to produce a different result. 

Lee has also moved to strike from the respondent commissioner’s appendix certain legislative research materials relating to the amendment of the Minnesota unemployment law statutes in 2003.  “The law is clear that matters not received into evidence at the trial may not be considered on appeal.”  Imprint Techs., Inc. v. Comm’r of Econ. Sec., 535 N.W.2d 372, 378 (Minn. App. 1995); see also Minn. R. Civ. App. P. 110.01, 115.04, subd. 1 (applying provisions of rule 110 to certiorari review and stating references to trial court shall be read as references “to the body whose decision is to be reviewed”).  Because the record does not establish that these documents were submitted to the commissioner as part of the proceedings below, Lee’s motion to strike is granted.

            Affirmed; motion granted.



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

[1] The definition of employment misconduct was amended effective August 1, 2003.  2003 Minn. Laws 1st Spec. Sess. ch. 3, art. 2, §§  13, 20(g); see also Minn. Stat. § 645.02 (2002) (providing that unless otherwise specified, laws are effective August 1 of year enacted).  We apply the version of the statute in effect at the time of Lee’s termination from employment.