This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C5-99-1030

Joan M. Behrends,
Relator,

vs.

Rainier Corporation,
Respondent,

Commissioner of Economic Security,
Respondent.

Filed February 22, 2000
Affirmed
Randall, Judge

Department of Economic Security
Agency File No. 2152 UC 99

Gordon L. Moore III, Von Holtum, Malters & Shepherd, 607 Tenth Street, P.O. Box 517, Worthington, MN 56187-0517 (for relator)

Rainier Corporation, P.O. Box 68, Worthington, MN 56187 (respondent employer)

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

Considered and decided by Peterson, Presiding Judge, Randall, Judge, and Klaphake, Judge.

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

Relator appeals the decision of a representative of the Commissioner of Economic Security, disqualifying her from receiving reemployment benefits. She argues that the commissioner’s representative’s factual findings are not supported by the record evidence and that the commissioner’s representative erred in concluding she committed disqualifying misconduct by refusing to comply with her employer’s request to discharge a fellow employee. We affirm.

FACTS

In August 1996, relator Joan M. Behrends worked for respondent Rainier Corporation as a general manager at its Ramada Inn located in Worthington. In the winter of 1998 the owners of Rainier Corporation, Andrew Sim and Tae Chae, decided not to rent the upper floor of the motel in an effort to save money on labor expenses during a period of low occupancy. As a result, the rooms were not being cleaned or heated on a regular basis. Behrends was opposed to this decision and informed Chae that renovations to the rooms must be completed in order to comply with Ramada’s standards. The owners decided not to complete the recommended renovations. On December 26, 1998, Ramada inspectors examined the motel. As part of their overall compliance evaluation, the inspectors examined the upstairs guest rooms. Because the rooms had not been cleaned, the housekeeping department lost points due to the condition of the rooms. After a complete examination of the entire motel, it failed the inspection.

Chae was upset about the motel’s failure, and on several occasions, beginning in January 1999, he indicated to Behrends that he wanted her to fire the head housekeeper, Lavonne Kruger. On each occasion, Behrends informed Chae that she believed firing Kruger was the incorrect action to take. Behrends believed Kruger should not be fired because the housekeeping points lost during inspection were not solely Kruger’s fault. Behrends also informed Chae that Kruger had always received good reviews in the past, she had no blemishes in her record, and she should be given a warning as opposed to being terminated. Behrends believed that it was in the motel’s best interest not to terminate Kruger because termination of such a good employee could generate negative publicity for the motel in a community the size of Worthington. In addition, Behrends believed that firing Kruger would constitute wrongful termination, violating Minnesota employment law. To this end, Behrends wrote Chae a letter indicating Kruger should receive a warning prior to being terminated in order to avoid a potential lawsuit.

On January 25, 1999, Chae told Behrends to fire Kruger immediately. Behrends again told Chae that she believed it was a mistake to fire Kruger and asked, "After the note I gave you, you still haven’t reconsidered that?" Chae replied, "If you do not fire her, I want a resignation." Behrends responded, "Just remember, you asked for it. I’m not giving it willingly." Chae left the office, but returned a few minutes later and asked Behrends for her motel keys. This was Behrends’s last day of employment at Ramada Inn.

Believing she was terminated from employment, Behrends sought reemployment benefits from the Department of Economic Security. The department disqualified her from receiving benefits, finding she had quit voluntarily. Behrends appealed, and a reemployment insurance judge disqualified her from receiving benefits, finding that her employer discharged her due to misconduct. Behrends appealed, and the commissioner’s representative affirmed the decision of the reemployment insurance judge. This certiorari appeal follows.

D E C I S I O N

An employee who is discharged for misconduct is disqualified from receiving reemployment benefits. Minn. Stat. § 268.095, subd. 4(1) (1998). An employer has the right to expect an employee to abide by reasonable requests within the expected job duties of the employee. McGowan v. Executive Express Transp. Enters., 420 N.W.2d 592, 596 (Minn. 1988). Generally, when an employer’s request is reasonable and does not impose an undue burden on the employee, the employee’s refusal to comply with the request constitutes misconduct. Soussi v. Blue & White Serv. Corp., 498 N.W.2d 316, 318 (Minn. App. 1993). Determining the reasonableness of the request will vary based on the facts of each case. Sandstrom v. Douglas Mach. Corp., 372 N.W.2d 89, 91 (Minn. App. 1985). "Inefficiency, inadvertence, simple unsatisfactory conduct, or poor performance as a result of inability or incapacity are not misconduct." Minn. Stat. § 268.095, subd. 6(3) (1998).

The commissioner’s representative concluded that Behrends’s refusal to comply with Chae’s request constituted a willful disregard of the standards of behavior that Chae had a right to expect of her. The representative also concluded that her failure to accede indicated a lack of concern for her job. Behrends argues that her conduct (1) did not evidence a disregard of the standards of behavior her employer had a right to expect of her, (2) was reasonable based on her subjective understanding of Minnesota employment law, and (3) was an isolated error in judgment based on her concern for her employer’s interest.

We conclude that the findings of the commissioner’s representative support, although not by a wide margin, a determination that Behrends was terminated for misconduct. Behrends’s refusal to comply with Chae’s request was aimed at what she thought was in the best interests of her employer. Her intentions appear to be well intentioned. But the owner of a business does have the right to expect that employees will follow clear directives, even if they might have done something different. By refusing to comply, Behrends impermissibly substituted her judgment for Chae’s. See Bibeau v. Resistance Tech., Inc., 411 N.W.2d 29, 31-32 (Minn. App. 1987) (holding relator’s intentional disregard of employer’s directive because she thought it was "stupid" constituted misconduct).

Firing Kruger was within the scope of Behrends’s duties as a general manager. It was reasonable for Chae to order his general manager, Behrends, to fire an employee, Kruger. Also, Behrends’s refusal to comply with Chae’s request was intentional; she chose to resign rather than follow Chae’s directive. See McGowan, 420 N.W.2d at 596 (holding request to run personal errand for employer was within scope of employment and relator’s decision was deliberate, calculated, and intentional refusal to carry out directive of employer). But see Enz v. Holiday Inn N., 388 N.W.2d 756, 758 (Minn. App. 1986) (holding relator’s refusal to speak in public was not misconduct because it was outside scope of usual duties as kitchen manager). Accordingly, we conclude that Behrends’s decision not to comply with Chae’s request constituted a disregard (not malice - but a disregard) of the standards of behavior Chae had a right to expect from an employee.

The issue of whether the commissioner’s representative’s findings support a determination that Behrends committed misconduct is complicated by Behrends’s belief that firing Kruger violated Minnesota employment law. If an employee’s refusal to comply with an employer’s request is based on a reasonable belief that the requested action was illegal, it may not constitute misconduct. Christenson v. City of Albert Lea, 409 N.W.2d 564, 566 (Minn. App. 1987). To constitute misconduct, an employee must act with disregard of an employer’s legitimate interest, not an illegal one. Eyler v. Minneapolis Star & Tribune Co., 427 N.W.2d 758, 761 (Minn. App. 1988).

Behrends contends that her refusal to comply with Chae’s request does not constitute misconduct because Chae’s request required her to violate Minnesota employment law. Behrends argues that the case should be remanded so the commissioner’s representative can determine whether, at the time Behrends refused to comply with Chae’s request, she reasonably believed her compliance would have violated Minnesota employment law. To support this argument, Behrends relies on Christenson and Eyler.

Unlike the relators in Christenson and Eyler, Behrends never articulated the provisions of Minnesota employment law she thought she would violate if she fired Kruger. The relator in Christenson argued that performing rent calculations in the manner requested by her employer would violate Department of Housing and Urban Development (HUD) standards. 409 N.W.2d at 565. The court reversed and remanded because the representative failed to determine whether the relator reasonably believed that complying with her employer’s request would have violated HUD standards. Id. at 566-67. The relator in Eyler contended that driving the number of hours required by his employer would violate Department of Transportation (DOT) regulations. 427 N.W.2d at 759. The court reversed and remanded in part because the representative failed to determine whether relator’s compliance with his employer’s request would have violated DOT regulations. Id. at 760-61. Unlike those cases, Behrends failed to specify how Chae’s request to fire Kruger would violate Minnesota employment law. Minnesota is an at-will employment state. Chae was free to let Kruger go for no reason.[1] Unlike the relators in Christenson and Eyler, Behrends has failed to establish that Chae’s request required her to engage in any illegal conduct or that it violated any laws.

Next, Behrends argues that her conduct was an isolated error in judgment based on her concern for her employer’s interest.[2] This argument is derived from the common law definition of misconduct found in Tilseth, which states in part that "ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed ‘misconduct.’" Tilseth v. Midwest Lumber Co., 295 Minn. 372, 375, 204 N.W.2d 644, 646 (1973) (quotation omitted). However, the legislature codified the definition of misconduct (articulated in Tilseth in 1973) in Minn. Stat. § 268.095, subd. 6. The Tilseth exceptions to misconduct, meaning types of employee mistakes that would not forfeit re-employment benefits, were narrowed.[3] A reviewing court may not "supply what the legislature either purposely omitted or inadvertently overlooked." Isse v. Alamo Rent-A-Car, 590 N.W.2d 137, 140 (Minn. App. 1999) (quotation omitted), review denied (Minn. Apr. 20, 1999). We cannot conclude that the commissioner’s representative erred by not finding an exception.

Behrends believed she was protecting the interests of her employer and protecting the interests of a coworker. With hindsight, her opinion may have made more sense than Chae’s opinion. But Chae owned the company. The commissioner’s representative did not err in concluding that Behrends committed disqualifying misconduct.

Behrends also argues the commissioner’s representative’s findings are not reasonably supported by the record. The representative made the following findings regarding Chae’s decision to fire Kruger and Behrends’s conduct in relation to Chae’s decision:

    1. Chae told Behrends to fire Kruger several times during the week ending January 23, 1999. On each occasion Behrends told Chae that such action was wrong.
    2. It was within Chae’s prerogative as the owner of the motel to decide to fire Kruger.
    3. Behrends was discharged because she refused to comply with Chae’s repeated requests to fire Kruger.
    4. Behrends knew that a likely consequence of her behavior would be termination of her employment.

Behrends contends the record evidence does not support the representative’s finding that she "refused to comply" with Chae’s request to fire Kruger. Behrends asserts that she engaged in several dialogues with Chae regarding the housekeeping situation whereby Chae reconsidered his decision. Second, Behrends claims there is no record evidence that she had "knowledge that a likely consequence of her behavior would be termination of her employment."

We conclude the record evidence supports the commissioner’s representative finding that Behrends refused to comply with Chae’s request to fire Kruger. It is clear that on several occasions Chae directed Behrends to fire Kruger. Chae and Behrends talked on several occasions regarding Chae’s decision. On January 25, 1999, Chae specifically asked Behrends to fire Kruger. When Chae told Behrends to either fire Kruger or she would have to resign, Behrends responded by stating, "Just remember, you asked for it. I’m not giving it willingly." Behrends’s refusal to comply can be inferred from her actions; rather than fire Kruger she chose to give Chae her resignation. This sequence of activity supports the commissioner’s representative’s finding that Behrends knew that a likely consequence of her behavior would be termination of her employment.

Viewing the record evidence in the light most favorable to the commissioner’s representative’s decision, the evidence reasonably supports the representative’s factual findings that (1) Behrends refused to comply with Chae’s request to fire Kruger, and (2) Behrends knew that a likely consequence of her behavior would be termination of employment.

Affirmed.

[1] In Minnesota, employment is "at-will" where the hiring is for an indefinite term; the employee may be dismissed summarily by the employer and the employee has no obligation to remain on the job. Pine River State Bank v. Mettille, 333 N.W.2d 622, 627 (Minn. 1983).

[2] The Commissioner of Economic Security interprets relator's argument as invoking the isolated, hotheaded incident rule. See Isse v. Alamo Rent-A-Car, 590 N.W.2d 137, 139-40 (Minn. App. 1999) (holding statutory definition of misconduct closely resembles common law definition but common law "isolated, hotheaded incident" exception is no longer Minnesota law), review denied (Minn. Apr. 20, 1999). However, relator never asserts this term, and her discussion in her brief appears to be a good-faith-error argument.

[3] Minn. Stat. § 268.095, subd. 6(3), states that misconduct is intentional conduct showing a disregard of the employer's interests, the standard of behavior the employer has the right to expect of the employee, or the duties and obligations of the employee to the employer. It also includes negligent conduct by an employee that demonstrates a substantial lack of concern for the employment. Id. Misconduct does not include "inefficiency, inadvertence, simple unsatisfactory conduct, or poor performance as a result of inability or capacity." Id.