                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2012).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A13-1815

                                    Cynthia Stephen,
                                        Relator,

                                           vs.

                                    Pro Pilots, LLC,
                                      Respondent,

                  Department of Employment and Economic Development,
                                      Respondent.

                                   Filed July 14, 2014
                                        Reversed
                                   Rodenberg, Judge

                  Department of Employment and Economic Development
                                  File No. 31203329-3

John N. Sellner, Winthrop & Weinstine, P.A., Minneapolis, Minnesota (for relator)

Lee B. Nelson, Christine E. Hinrichs, Munazza Humayun, Department of Employment
and Economic Development, St. Paul, Minnesota (for respondent DEED)

      Considered and decided by Johnson, Presiding Judge; Rodenberg, Judge; and

Chutich, Judge.
                        UNPUBLISHED OPINION

RODENBERG, Judge

      Relator Cynthia Stephen petitions for certiorari review of the determination of the

unemployment law judge (ULJ) that each of the following constituted employment

misconduct: (1) relator’s failure to provide “proper notice” to respondent Pro Pilots, LLC

(employer) of her illness-related absences, and (2) relator’s “negligent” work

performance. We reverse.

                                         FACTS

      Relator began her employment as a charter sales executive with employer on

March 22, 2012. Employer’s business includes chartering planes for various clients.

Relator’s job duties included managing and responding to sales emails, answering sales

phone calls and “logging” the callers’ information, and attending weekly sales meetings.

She was required to work from 8:00 a.m. to 4:30 p.m. Mondays through Fridays and

work nights and weekends “as requested.” When relator commenced her employment,

she was given Pro Pilot’s sick-leave policies, which stated: “Employees who are unable

to report to work due to temporary illness or injury should notify their direct supervisor

before the scheduled start of their workday.”

      Relator occasionally missed work due to a chronic medical condition, the

legitimacy and severity of which is not in dispute. After several absences in the summer

of 2012, relator received a written warning that set forth a policy for illness-related

absences requiring relator to provide two-hour advance notice of same-day absences and

a doctor’s note explaining each illness-related absence. After she received this policy,


                                            2
relator was again absent January 14, 15, 17 and 18. On April 4, 2013, relator worked

from home due to medical reasons and informed Pro Pilots by email at 2:18 p.m. On

April 11, 2013, while at a work-related lunch, relator left work early due to the sudden

onset of symptoms and had a coworker notify Pro Pilots. The ULJ found that relator

always notified Pro Pilots of her absences, but on certain occasions did not do so until

after the start of her shift.

       As a result of the April 11 absence, relator received a “final written warning for

leaving work early without prior approval” on April 16, 2013. The warning included a

policy that relator must notify a supervisor of any future emergencies requiring her to

leave work.     It also stated that relator was required to bring her performance to a

satisfactory level within 30 days and that “[f]ailure to adhere to the conditions of this

written warning . . . will lead to more serious corrective action and you[r employment]

may be terminated.” Relator’s only absence after receiving this warning was on May 6,

when she was told to work from home after notifying Pro Pilots that she may have

pinkeye (which is not the chronic condition plaguing relator). While working from

home, she was asked by a supervisor to obtain a doctor’s note before returning to work.

She obtained the note. The next day, she was discharged. Relator was told the reason

for her discharge was that she “disappeared for two hours” the previous day (during

which time she obtained a doctor’s note). The ULJ concluded that, because relator

sometimes provided notice of her illness-related absences after the start of her shift, she

had committed employment misconduct.




                                            3
       The “employee termination letter” given to relator when she was discharged listed

“unsatisfactory job performance” as a second reason for her discharge: Concerning

relator’s work performance, the ULJ found that “[she] frequently showed up unprepared

for meetings and frequently missed emails even after coaching by [a supervisor]. She

failed to log calls and provided misinformation to clients. By March 2013, [a supervisor]

had taken on most of the responsibilities for which [relator] was hired.” The ULJ

concluded that relator had committed employment misconduct based on a finding that her

job performance had been “negligent.” Upon reconsideration, the ULJ affirmed his

decision, and this certiorari appeal followed.

                                     DECISION

       Whether an employee engaged in conduct resulting in disqualification from

unemployment benefits is a mixed question of fact and law. Schmidgall v. FilmTec

Corp., 644 N.W.2d 801, 804 (Minn. 2002).          Whether the employee committed the

particular act is a question of fact. Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32,

34 (Minn. App. 1997). Whether a particular act constitutes employment misconduct is a

question of law, which we review de novo. Schmidgall, 644 N.W.2d at 804.

       An employee who is discharged from employment for misconduct is ineligible to

receive unemployment benefits. Minn. Stat. § 268.095, subd. 4(1) (2012). “Employment

misconduct means any intentional, negligent, or indifferent conduct, on the job or off the

job that displays clearly: (1) a serious violation of the standards of behavior the employer

has the right to reasonably expect of the employee; or (2) a substantial lack of concern for

the employment.” Id., subd. 6(a) (2012). The ULJ held that relator’s illness-related


                                             4
absences and negligent work performance constituted employment misconduct.              We

address both determinations in turn.

                                             I.

       In general, an employee’s refusal to abide by an employer’s reasonable policies

and requests is disqualifying misconduct. Schmidgall, 644 N.W.2d at 804. “Minnesota

law allows an employer to establish and enforce reasonable rules governing employee

absences.” Cunningham v. Wal-Mart Assocs., Inc., 809 N.W.2d 231, 235 (Minn. App.

2011). But absence from work due to illness or injury is not considered employment

misconduct if the employee provides proper notice to the employer.             Minn. Stat.

§ 268.095, subd. 6(b)(7) (2012).

       Caselaw does not firmly establish what constitutes “proper notice” of absence due

to illness. It is undisputed that Pro Pilots expressed a policy that relator was to provide

notice of her illness-related absences at least two hours in advance. The ULJ concluded

that “the record does not support that [relator] made reasonable efforts to provide notice

to Pro Pilots of her absences and tardiness” and that there were instances when she did

not provide notice until after her shift had started. He concluded that this displayed “a

substantial lack of concern for the employment,” and relator had therefore committed

employment misconduct.

       Relator argues, and the record supports, that she gave notice to the employer every

time she was absent due to illness and that, due to the unpredictable nature of her illness,

her late notices were “conduct an average reasonable employee would have engaged in

under the circumstances.” See id., subd. 6(b)(4) (2012) (listing an exception to the


                                             5
definition of employment misconduct).             Respondent Minnesota Department of

Employment and Economic Development counters by arguing that relator consistently

failed to provide notice before the start of her shift and that “an average reasonable

employee would have talked to her employer and explained the reason for these

unexpected absences, delay in reporting those absences, and reasons why a doctor’s note

may have been impractical.” But the precise issue before us is narrower than examining

the entire course of relator’s employment.

       Relator was discharged in direct response to her absence on May 6, 2013 due to

suspected pinkeye. This was relator’s only absence after she received the “final written

warning” on April 16, 2013 regarding her attendance. This warning stated that it was

relator’s opportunity to correct her unsatisfactory performance and that continued failure

to follow Pro Pilots’s policies could result in discharge.

       The record allows no conclusion other than that relator complied with Pro Pilots’s

policies and directions when she notified her supervisor of what she thought was pinkeye.

In fact, her supervisor instructed her to work from home after relator told him of her

symptoms. A different supervisor contacted relator that afternoon and directed that she

obtain a doctor’s note before returning to work the next day. She did that as well.

Despite complying with all of Pro Pilots’s policies and despite complying with the

requests of two supervisors concerning the pinkeye incident, relator was discharged the

following day.     Relator fully complied with Pro Pilots’s policies and the specific

directions of her supervisor, which does not constitute employment misconduct. See id.,

subd. 6(b)(7) (medical absences with notice are not employment misconduct);


                                              6
Schmidgall, 644 N.W.2d 804 (stating that an employee must generally comply with the

employer’s reasonable policies).1

                                             II.

       Employment misconduct does not include inefficiency or inadvertence, simple

unsatisfactory conduct, poor performance because of inability or incapacity, or good-faith

errors in judgment.    Minn. Stat. § 268.095, subd. 6(b) (2012).        The ULJ held that

“[relator’s] negligent performance seriously violated the standards [that the employer]

had the right to reasonably expect,” constituting misconduct. See id., subd. 6(a)(1). The

meaning of “negligent” is of central importance in this appeal.

       In interpreting an older version of the unemployment insurance statute, our

supreme court explained:

              The intended meaning of the term “misconduct” is limited to
              conduct evincing such wilful 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 in carelessness or
              negligence of such degree or recurrence as to manifest equal
              culpability, wrongful intent or evil design, or to show an
              intentional and substantial disregard of the employer’s
              interests or of the employee’s duties and obligations to his
              employer.

1
 At oral arugment, DEED’s counsel argued that we should not only look at relator’s last
absence, but we also must look at the “totality of the circumstances,” citing Jones v.
Rosemount, Inc., 361 N.W.2d 118 (Minn. App. 1985), as support. Jones held that the
decision-maker had improperly placed emphasis on the employee’s last absence being
outside of her control given the fact that she had a habit of absenteeism (not due to illness
or injury). 361 N.W.2d at 120. Here, because relator was specifically given an
opportunity to correct her behavior and did so, this case is readily distinguishable from
Jones, wherein the employee took no steps to rectify the reasons for her eventual
discharge, even if her last absence was due to reasons outside her control. See id. at 119-
20.

                                             7
Tilseth v. Midwest Lumber Co., 295 Minn. 372, 374-75, 204 N.W.2d 644, 646 (1973)

(quotation omitted), superseded by statute Minn. Stat. § 268.09, subd. 12 (Supp. 1997) as

recognized in Houston v. Int’l Data Transfer Corp., 645 N.W.2d 144, 149 (Minn. 2002)).

The Tilseth court went on to explain: “[M]ere inefficiency, unsatisfactory conduct, failure

in good performance as the result of inability or incapacity, inadvertencies or ordinary

negligence in isolated instances, or good-faith errors in judgment or discretion are not to

be deemed ‘misconduct.’” Id. at 375, 204 N.W.2d at 646 (emphasis added) (quotation

omitted).

       The current version of the unemployment insurance statutes incorporates much of

the above-quoted language. Although “negligent” conduct is included in the definition of

“employment misconduct,” Minn. Stat. § 268.095, subd. 6(a), the following are excluded

from the definition of employment misconduct: (1) inefficiency or inadvertence,

(2) simple unsatisfactory conduct, (3) conduct as the result of inability or incapacity, and

(4) good-faith errors in judgment, id., subd. 6(b)(2)-(3), (5)-(6). This case raises the issue

of whether “ordinary negligence” should now be considered disqualifying “employment

misconduct.” See id., subd. 6(a).

       Because the list of exceptions to the statutory definition of employment

misconduct includes terms that are synonymous with ordinary negligence (e.g.

“inefficiency or inadvertence,” and “good faith errors in judgment”), we conclude that the

legislature did not intend for ordinary negligence to fall within the definition of

“employment misconduct.” Tilseth specifically referenced “inadvertencies or ordinary

negligence in isolated circumstances,” 295 Minn. at 375, 204 N.W.2d at 646, and


                                              8
ordinary negligence appears to us to be included within the current statute’s reference to

“inefficiency or inadvertence,” Minn. Stat. § 268.095, subd. 6(a), (b)(2). Despite the

exclusivity provision of the statute concerning the definition of “employment

misconduct,” id., subd. 6(e), something more than ordinary negligence is required in

order for an employee’s conduct to constitute employment misconduct under the current

statute. We therefore consider whether relator’s “negligent” conduct was more egregious

than “ordinary negligence.”

       Relator argues that her poor job performance does not amount to intentional or

negligent disregard for her employment and that Pro Pilots presented no evidence that it

was intentional or negligent. Pro Pilots counters that while some of relator’s “failures

may be attributable to inefficiency or inadvertence, the record shows that she did not

comply with basic instructions from management related to her job responsibilities.”

Although it is undisputed that relator was unable to perform her job satisfactorily, Pro

Pilots has provided absolutely no evidence of, nor did it even claim that, appellant was

indifferent or deliberately ignored her job responsibilities. The list of job-performance

issues relied on by the ULJ in determining that relator was negligent includes instances

where relator made mistakes due to inadvertence or her inability or incapacity to do the

job. This record does not support a conclusion that relator’s conduct was anything more

than “ordinary negligence.”      See Tilseth, 295 Minn. at 375, 204 N.W.2d at 646.

Therefore, relator’s poor job performance does not constitute “employment misconduct”

as defined by Minn. Stat. § 268.095, subd. 6(a), (b)(2).




                                             9
      The ULJ erred in concluding that relator’s illness-related absences constitute

employment misconduct and in determining that relator’s poor work performance was

employment misconduct. Because we reverse on purely legal grounds, we do not reach

relator’s arguments regarding the ULJ’s factual findings and credibility determinations.

      Reversed.




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