This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Sharon D. Johnson,



County of Hennepin/Community Corrections,


Commissioner of Economic Security,


Filed December 15. 1998


Shumaker, Judge

Department of Economic Security

File No. 98 06 UC 97

Howard L. Bolter, Borkon, Ramstead, Mariani & Letourneau, Ltd., 485 Northstar East, 608 Second Avenue South, Minneapolis, MN 55402-1949 (for relator)

Michael O. Freeman, Hennepin County Attorney, Cheri Sudit, Assistant County Attorney, A-2000 Government Center, Minneapolis, MN 55487 (for respondent County of Hennepin/Community Corrections)

Kent E. Todd, Minnesota Department of Economic Security, 390 North Robert Street, St. Paul, MN 55101 (for respondent-commissioner)

Considered and decided by Kalitowski, Presiding Judge, Schumacher, Judge, and Shumaker, Judge.



Relator Sharon Darlene Johnson challenges the commissioner's representative's decision disqualifying her from receiving reemployment benefits because she was discharged from employment for misconduct. We affirm.


Sharon Johnson, an employee of Hennepin County Community Corrections, missed 619 hours, or 77 days, of work between January and August 1997. Of those 77 days, 28 days were undocumented. Because of numerous unexcused or undocumented absences, Johnson's employer asked her on June 24, 1997, if she needed any accommodations in order to do her job. Johnson declined the offer.

On July 3, 1997, Johnson called in sick and then failed to report to work the rest of July. Her supervisor, following Hennepin County Human Resource rules, ordered Johnson to have a fitness-for-duty examination and scheduled it for July 25, 1997. Johnson was informed of the examination by telephone and express mail. Without informing her supervisor, Johnson rescheduled the appointment to July 30, 1997, but then failed to report for it.

Johnson's supervisor suspended her for failure to report to the July 25, 1997, examination. The supervisor offered Johnson a medical leave of absence but required first that Johnson sign a medical release so that the supervisor could talk with Johnson's doctors. Johnson neither provided the medical release nor reported to work.

In early August 1997, Johnson was discharged from her employment with Hennepin County for failure (1) to attend the second fitness-for-duty exam, (2) to report to work for the entire month of July, and (3) to sign the medical release as requested by her employer.

Johnson filed for reemployment benefits. The claims representative determined that Johnson was disqualified from reemployment benefits because she had been terminated from her job for misconduct. Johnson appealed from the determination. The reemployment insurance judge affirmed the claims representative's decision. Johnson appealed to the commissioner's representative, who affirmed the reemployment insurance judge's decision. Johnson filed a writ of certiorari.


The reemployment insurance fund is available only to people "unemployed through no fault of their own." Minn. Stat. § 268.03 (1996); White v. Metropolitan Med. Ctr., 332 N.W.2d 25, 26 (Minn. 1983). Therefore, an employee discharged for misconduct is disqualified from receiving reemployment insurance benefits. Minn. Stat. § 268.09, subd. 1(b) (1996). The employer bears the burden of proving the employee's misconduct. Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989). Misconduct is defined as willful or wanton disregard of an employer's interests, as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee; or an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer. In re Tilseth, 295 Minn. 372, 374-75, 204 N.W.2d 644, 646 (1973).

This court limits its review of the commissioner's factual findings to whether the evidence, viewed in the light most favorable to the decision below, supports the decision. Evenson v. Omnetic's, 344 N.W.2d 881, 883 (Minn. App. 1984). However, whether an employee has committed misconduct is a question of law. Cook v. Playworks, 541 N.W.2d 366, 368 (Minn. App. 1996) (whether findings support determination of misconduct is question of law subject to de novo review).

Johnson argues that her employer did not meet its burden of proof on the issue of "misconduct." See Marz v. Department of Employment Servs., 256 N.W.2d 287, 289 (Minn. 1977) (concluding employer has burden of proving disqualification of otherwise eligible employees). However, the evidence shows that Johnson (1) failed to report to work for 28 days without providing any documentation, as required by county policy; (2) was given numerous opportunities to provide the appropriate documentation but failed to do so; (3) was given the opportunity to be placed on a medical leave of absence, but she failed to submit the required paperwork despite several time extensions; and (4) was warned several times about the consequences of her absenteeism and the lack of documentation regarding her illness. See Evenson, 344 N.W.2d at 883 (concluding that an employee's "continued tardiness, combined with several warnings, evidence[d] disregard by employee of the employer's interest [and was] a violation of standards of behavior which employer had a right to expect of its employees."); see also Jones v. Rosemount, Inc., 361 N.W.2d 118, 120 (Minn. App. 1985) (concluding chronic and excessive absenteeism demonstrates a lack of concern for her job; regardless of reason for her absence on her last day, her pattern of persistent absence demonstrated negligent behavior justifying denial of reemployment benefits).

Deferring to the commissioner's determination of credibility issues, we find the employer met its burden of proving Johnson's conduct constituted "misconduct" within the meaning of Minn. Stat. § 268.09, subd. 1(b). See Ress, 448 N.W.2d at 524 (concluding when conducting misconduct analysis courts may examine whether employee deliberately violated standards of behavior that employer has right to expect of its employee, whether an employee's conduct adversely affected business or other employees' morale, and whether an employee ignored past warnings). Thus, the evidence supports the commissioner's findings that Johnson's refusal to comply with the county's reasonable requests and for failure to report to work constituted misconduct.

Although Johnson's behavior constituted misconduct, such conclusion does not end the inquiry. Minnesota law provides reemployment benefits for an employee disqualified due to misconduct if the loss of employment is due to the employee's serious illness and the employee made reasonable efforts to retain employment. Minn. Stat. § 268.09, subd. 1(c)(2) (1996).

The record indicates that Johnson suffered from medical problems. She testified that she became ill with alcoholism and became depressed. However, she consistently failed to verify her "serious illness" with medical or other evidence, despite several attempts by her employer to help. Whether relator was ill is a credibility issue; resolving credibility issues is beyond the scope of this court. General v. General, 409 N.W.2d 511, 513 (Minn. App. 1987). The record shows Johnson provided neither sufficient evidence regarding the nature and extent of her illness nor evidence that her illness caused her to fail to comply with her employer's request for documentation. Cf. Loewen v. Lakeland Medical Health Center, Inc., 532 N.W.2d 270, 275 (Minn. App. 1995) (reversing and remanding where evidence indicated that relator's mental state may have impaired her ability to evaluate and respond to her employer's demand that she undergo a psychological evaluation). Accordingly, we find that there was no evidence that Johnson's misconduct was a result of a "serious illness." Thus, Johnson is not eligible for reemployment benefits under the "serious illness" exception.