This opinion will be unpublished and

may not be cited except as provided by

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







Michael L. Moren,





Northland Process Piping, Inc.,



Commissioner of Employment and Economic Development,



Filed July 27, 2004


Lansing, Judge


Department of Employment and Economic Development

File No. 9364 03



Michael L. Moren, 722 Fourth Street Northwest, Aitkin, MN (pro se relator)


Northland Process Piping, Inc., 1662 – 320th Avenue, Isle, MN 56342-4303 (for respondent Northland Process Piping, Inc.)


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


            Considered and decided by Willis, Presiding Judge; Lansing, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N


            By writ of certiorari, Michael Moren challenges the commissioner of employment and economic development’s order determining that employment misconduct disqualified him from receiving unemployment benefits.  Moren asserts he was discharged for absenteeism, documented with his employer, that was caused by surgery; continued pain; and adjustment to medication.  Because we conclude that the evidence does not reasonably support a conclusion that Moren was discharged for employment misconduct, we reverse. 



            Michael Moren worked as a finisher for Northland Process Piping, Inc. from February 4, 2002, until his employment was terminated on May 6, 2003.  In 2002 Moren was late or absent a significant number of times.  He received a written warning for “late/leave early” in June 2002 and a subsequent three-day suspension for absenteeism in September of that year. 

            In March and April 2003, Moren had excused medical absences because of a gall-bladder condition that required surgery on April 1, 2003.  About a week after his surgery, Moren returned to work on prescribed narcotic painkillers.  Moren was late to work on April 7 and had an excused doctor’s appointment on April 11.  He received a written warning on April 15 for being late three times between January 1 and April 15.  The notice stated that failure to improve would result in suspension or dismissal.  After the warning, Moren missed two days of work.  He called in sick on May 2 with surgery-related pain and the next working day he had a previously excused absence for a probate proceeding.  When Moren reported to work on the following work day, Northland discharged him for excessive absenteeism. 

            Moren filed a claim for unemployment benefits with the department of employment and economic development, and a department adjudicator determined that he was qualified to receive benefits because he was not discharged for employment misconduct.  An unemployment law judge affirmed the determination of benefits, finding by a preponderance of the evidence that Moren was discharged for an approved absence and a properly noticed absence due to illness.  On Northland’s appeal, the commissioner’s representative reversed.  The commissioner’s representative concluded that Moren’s “episodes of tardiness and absenteeism” that occurred “throughout his tenure” constituted employment misconduct.  This appeal followed.



            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 . . . or . . . negligent or indifferent conduct . . . that demonstrates a substantial lack of concern for the employment.”  Minn. Stat. § 268.095, subd. 6(a) (2002); Houston v. Int’l Data Transfer Corp., 645 N.W.2d 144, 149 (Minn. 2002) (interpreting statutory definition). 

            Whether an 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 whether the employee committed a particular act is a factual question.  Scheunemann v. Radisson South Hotel, 562 N.W.2d 32, 33 (Minn. App. 1997).  A determination that a particular act constitutes employment misconduct is a question of law.  Id.  This court defers to the factual determinations of the commissioner’s representative if they are reasonably supported in the record but exercises independent judgment with respect to legal questions.  Lolling v. Midwest Patrol, 545 N.W. 2d 372, 377 (Minn. 1996). 

            Northland asserts that substantial evidence in the record as a whole supports the  commissioner’s representative’s determination that Moren was discharged for his employment misconduct because of excessive absences and tardiness throughout his tenure.  But Minn. Stat. § 268.095, subd. 4(1), requires that a person be “discharged because of employment misconduct” in order to be disqualified from receiving unemployment benefits.  (Emphasis added.)  In other words, “[t]o disqualify a person from receiving benefits, the misconduct must be the cause of the discharge.”  Hansen v. C.W. Mears, Inc., 486 N.W.2d 776, 780 (Minn. App. 1992), review denied (Minn. July 16, 1992); see also Harringer v. AA Portable Truck & Trailer Repair, 379 N.W.2d 222, 224 (Minn. App. 1985) (noting rule in other jurisdictions that employee’s misconduct is irrelevant to determination of benefits if that conduct was not in fact reason for employee’s discharge).  Disqualification provisions of the unemployment-compensation statute are narrowly construed.  Prickett v. Circuit Science, Inc., 518 N.W.2d 602, 604 (Minn. 1994). 

            Moren was discharged immediately following one day of medically excused absence due to surgery-related pain and one day of excused absence for a probate proceeding.  Although Northland raised questions about whether Moren gave sufficient notice of the sick day, the unemployment law judge determined that he did and the commissioner’s representative did not change that finding.  Moren had been warned two weeks before these absences about tardiness and told that a failure to improve would result in suspension or dismissal.  He had no further tardiness.  He had a one-day absence because of illness and an excused absence for a probate proceeding.  The commissioner’s representative did not find that either of these absences were unjustified or constituted misconduct.  See, e.g., Gerr v. Target-Fridley, 382 N.W.2d 231, 234 (Minn. App. 1986) (holding that employee’s absences due to documented illnesses did not demonstrate lack of concern for her job).  The commissioner’s representative instead found that the decision to terminate Moren was based not on these particular absences, but on Moren’s attendance and tardiness throughout his tenure.  Moren contends that he was given a final warning for tardiness, not for absences, and that the reason Northland gave for his discharge was excessive absence due to illness.  The written copy of the April 15, 2003, warning supports Moren’s claim that the warning was for tardiness.  The evidence is uncontradicted that following the warning, Moren had only an excused absence for the probate proceeding and the absence for illness.  The record also reflects that Moren’s attendance had improved overall since 2002.

            We recognize that an employee’s conduct on the last day of work is not alone determinative of whether he is entitled to unemployment benefits.  See, e.g., Jones v. Rosemount, Inc., 361 N.W. 2d 118, 120 (Minn. App. 1985) (concluding that pattern of persistent absence may constitute employment misconduct regardless of reason for employee’s absence on last day of work).  But in this context, Northland’s failure to identify wrongful conduct that occurred between Moren’s warning and discharge conflicts with the representative’s finding that Moren was discharged for employment misconduct.

            Although our deference to the commissioner’ findings is broad, it is not unlimited.  Neve v. Austin Daily Herald, 552 N.W.2d 45, 47 (Minn. App. 1996).  This is especially true in this case, when the commissioner’s representative made no findings that conflict with or alter the unemployment law judge’s findings on the reasons for discharge.  The unemployment law judge found specifically that Moren was discharged for reasons other than employment misconduct, and that, although Moren had a substantial history of disciplinary actions related to attendance, the two absences that triggered his discharge were not misconduct because one was a properly noticed illness and the other was a previously approved absence.  These findings may be modified or set aside by the commissioner’s representative without providing a basis for that action.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  But the commissioner’s representative may not simply substitute a different determination without facts that support the decision.  See Minn. Stat. § 268.105, subd. 2(c) (2002) (commissioner’s representative is authorized to examine the evidence and make findings of fact that the evidence requires).

            The commissioner’s representative’s decision must be supported by findings that are based on the evidence.  Id.  And the evidence in the record must reasonably tend to support the representative’s determination.  Lolling, 545 N.W.2d at 377.  Because the evidence and the findings do not support a conclusion that Moren’s discharge was caused by employment misconduct, we reverse and reinstate Moren’s unemployment benefits.