This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).







Larry D. Dobson,





Lutheran Social Service of MN,



Commissioner of Economic Security,




Filed May 9, 2000


Halbrooks, Judge


Department of Economic Security

File No. 992 UC 99



Larry D. Dobson, 421 First Avenue South, Sleepy Eye, MN 56085-1422 (pro se relator)


Penelope J. Phillips, Felhaber, Larson, Fenlon & Vogt, P.A., 601 Second Avenue South, Suite 4200, Minneapolis, MN 55402-4302 (for respondent Lutheran Social Services)


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


            Considered and decided by Willis, Presiding Judge, Kalitowski, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N


            Relator appeals from the decision by the representative of the Commissioner of Economic Security denying his application for reemployment benefits.  The commissioner’s representative determined that relator was not eligible to receive benefits because the relator had been terminated for disqualifying misconduct.  We affirm.


            Relator Larry Dobson was hired as a recovery outreach coordinator by respondent-employer Lutheran Social Services, Inc. (LSS) in early May 1998.  This was a temporary position.  LSS was assisting families in southern Minnesota who were victims of tornadoes on March 29, 1998.  Dobson’s primary job responsibility was to coordinate relief and disaster efforts in and around Comfrey, Minnesota.  He was also required to establish relationships with the local governments, the Red Cross, Salvation Army, FEMA representatives, and other resource agencies. 

            On July 24, 1998, the mayor of Comfrey asked Melanie Josephson, Director of LSS Disaster Program, to remove Dobson from serving in Comfrey.  The mayor’s concerns stemmed from Dobson’s statements to the mayor of a nearby city that the disaster recovery volunteers would boycott the city if not allowed to use the city’s pool/shower facilities and Dobson’s threats to go to the media if Comfrey city officials continued to “mishandle” the Carmona family’s case.

            In response, Josephson and Dick Graves, LSS Disaster Services Manager, met with Dobson and instructed him to work in the area west of Comfrey and to stop all direct communication with Comfrey and its city officials.  This response was not a consequence of any determination that the mayor’s complaints were accurate, but because LSS was concerned about developing and maintaining a good working relationship with Comfrey city officials.

            Three days later, on August 3, 1998, in direct disregard of the instructions and without LSS’s knowledge, Dobson attended a Comfrey city council meeting and publicly challenged council members on their handling of the Carmona case.  He also publicly questioned the mayor as to her role in his reassignment.

            Following this incident, LSS drafted a corrective action plan outlining the concerns LSS had, not with Dobson’s substantive communication, but with his communication style.  The plan called for Dobson to cease direct communications with the various governmental and relief organizations unless he obtained LSS’s consent to contact them.  Dobson and his supervisor signed the plan, which included a warning that, if the plan were violated, Dobson would be subject to further discipline or termination.

            Dobson and LSS operated under the terms of the plan for a few months.  But in December 1998, Dobson violated the plan by working on the Carmona case and by contacting a relief organization, the Region 9 Development Commission, without LSS’s permission, regarding money needed to pay a contractor.  During the conversation, Dobson told the disaster recovery coordinator that he expected to have the checks in his “filthy hands in two days” or he would “come in with both feet and sh-t would hit the fan.”  Dobson further asked the coordinator who her supervisor was and said she better not “butt heads” with him or there would be trouble for her.  Following this conversation, the coordinator contacted LSS and indicated that she felt threatened by Dobson’s language. 

            On December 14, 1998, after meeting with Dobson, LSS terminated Dobson’s employment for his use of threatening language and his violation of the corrective action plan.  Dobson sought reemployment benefits, but his application for benefits was denied by the Commissioner of Economic Security on the basis that he was terminated for disqualifying misconduct.  This appeal followed.


1.         Misconduct

            The commissioner’s representative’s determination that an employee committed misconduct is a mixed question of fact and law.  Colburn v. Pine Portage Madden Bros., 346 N.W.2d 159, 161 (Minn. 1984).  The representative’s factual findings must “be viewed in the light most favorable to the decision, and if there is evidence reasonably tending to sustain them, they will not be disturbed.”  White v. Metropolitan Med. Ctr., 332 N.W.2d 25, 26 (Minn. 1983).  But whether those findings support a misconduct determination is a question of law subject to de novo review.  Cook v. Playworks, 541 N.W.2d 366, 368 (Minn. App. 1996).  The employer has the burden to prove, by the greater weight of the evidence, that the employee has committed disqualifying misconduct.  Ress v. Abbott NW Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).

Dobson does not challenge the commissioner’s representative’s factual findings.  Therefore, the issue for this court is not whether LSS was justified in terminating Dobson, but whether Dobson’s conduct constituted misconduct as that term is defined in the disqualification statute.  Fujan v. Ruffridge-Johnson Equipment, 535 N.W.2d 393, 395 (Minn. App. 1995).  The statute defines misconduct as

intentional conduct showing a disregard of:

            (1) the employer’s interest;

(2) the standards of behavior that an employer has the right to expect of the employee; or

(3) the employee’s duties and obligations to the employer.  Misconduct also includes negligent conduct by an employee demonstrating a substantial lack of concern for the employment.  Inefficiency, inadvertence, simple unsatisfactory conduct, or poor performance as a result of inability or incapacity are not misconduct.


Minn. Stat. § 268.095, subd. 6 (1998).  The misconduct language is included in the disqualification statute because reemployment benefits are meant to provide assistance to those who have lost jobs “through no fault of their own.”  Ress, 448 N.W.2d at 523 (citation omitted). 

In this case, the commissioner’s representative found that Dobson’s


conduct showed a disregard of the employer’s interests, the standards of behavior that the employer has a right to expect of the employee, and the employee’s duties and obligations to the employer.


See Minn. Stat. § 268.095, subd. 6(1)-(3).  The “conduct” that led to this conclusion was the December 9, 1998 call to the Region 9 coordinator that was found to be “abrasive” and “vaguely threatening,” coupled with Dobson’s earlier actions that had led to the imposition of the corrective action plan. 

            An employer has a right to expect that its employees will abide by reasonable instructions and directions.  McGowan v. Executive Express Transp. Enters., Inc., 420 N.W.2d 592, 596 (Minn. 1988).  In this case, LSS specifically told Dobson to avoid contacting city and other assistance officials on behalf of LSS without obtaining express permission from his supervisors.  Specifically, the August 6, 1998 corrective action plan stated in part:

Any calls or inquiries that need to be made with city officials, * * * Region 9, or others will be done by [another LSS employee].


* * * *


Any correspondence (whether written, verbal, or by other means) with the officials of Comfrey or others in the area concerning this case, or others that involve Comfrey residents, must be done through [another LSS employee] or with clearance from [Dobson’s supervisors].  Issues within the office that are viewed as being politically sensitive and require the action of LSS/LDR should be reviewed by other staff and cleared by management.  This is necessary in order to keep staff informed, promote understanding and commitment amidst the staff and to insure harmonious relations with the leadership of a traumatized community.


(Emphasis added.)  The plan also served to inform Dobson that failure to abide by these terms would result in disciplinary action, including possible termination.  Dobson’s supervisors at LSS made it clear through this corrective action plan that his previous dealings with the local governmental and relief agencies were considered inappropriate.  Dobson signed the corrective action plan on August 12, 1998.

Dobson contends that his conduct was an isolated “hot-headed” incident and is insufficient to disqualify him from receiving reemployment benefits.  See Shell v. Host Int’l Corp., 513 N.W.2d 15, 17 (Minn. App. 1995) (holding that although employee can be terminated for isolated hot-headed incident, it does not constitute misconduct unless the incident interferes with the employer’s business interest).  Contrary to Dobson’s assertion, however, this is not the type of case to which this rule applies. 

            First, Dobson’s conduct was not isolated.  He had previously used tactics that LSS deemed were inappropriate in attempting to advocate for one of the families with whom he was assigned to work and in seeking to obtain volunteer lodging.  To address its concerns, LSS implemented the corrective action plan.  The conduct that precipitated his termination occurred after LSS and Dobson signed the corrective action plan.   Rather than being an isolated incident, Dobson’s conduct toward Koplin on December 9, 1998, is better described as a continuing pattern of misconduct.  See Cavalier v. C. Mach. Co., Inc., 404 N.W.2d 391, 394 (Minn. App. 1987) (holding that incident that by itself may appear to be a hot-headed incident can be considered along with previous incidents in finding disqualifying misconduct). 

Second, Dobson’s conduct interfered with his employer’s business interests.  LSS is a private social-service agency that depends on good relations with governmental and other private organizations to fulfill its mission of assisting people in need.  The corrective action plan clearly indicated that LSS considered “harmonious relations with the leadership of a traumatized community” essential to its “business.”  Dobson’s repeated use of threatening tactics and his use of abusive language interfered with this legitimate business interest.

            The commissioner’s representative’s findings support his conclusion that Dobson was terminated for disqualifying misconduct.  Dobson disregarded the corrective action plan that set forth reasonable standards of behavior LSS had a right to expect.  See McGowan, 420 N.W.2d at 596.  His violation of the plan demonstrated an intentional and substantial disregard for the employer’s interest in maintaining harmonious relationships with the various agencies with which it works.  See Minn. Stat. § 268.095, subd. 6(1) (providing that intentional conduct showing a disregard for the employer’s interest is disqualifying misconduct). 

2.         Constitutional challenge

            Dobson also contends that LSS interfered with his First Amendment right to petition the government for redress of grievances.  He claims that the corrective action plan was implemented because he had approached the mayor of Comfrey and Comfrey’s city council regarding the mayor’s request that he be transferred by LSS to another city.  He further contends that the corrective action plan was unconstitutional because it prevented him from petitioning the government if he desired to keep his employment.  Dobson raised this constitutional challenge below, but the commissioner’s representative correctly noted that he lacked jurisdiction to consider the issue.  See Neeland v. Clearwater Mem’l Hosp., 257 N.W.2d 366, 368 (Minn. 1977). 

            The corrective action plan did make Dobson’s continued employment contingent on his agreement to forego additional unapproved contact with government officials regarding the issues that arose as part of his employment.  Nonetheless, this does not rise to the level of a constitutional violation because there was no state action.  See State v. Wicklund, 576 N.W.2d 753, 757 (Minn. App. 1998) (noting that First Amendment does not provide protection from actions of private individuals or corporations) (citation omitted), aff’d, 589 N.W.2d 793 (Minn. 1999).  The First Amendment only protects citizens from governmental interference with the rights enumerated in that amendment.  See id.  LSS is a private employer and not a governmental agency.  It cannot violate Dobson’s First Amendment rights.

3.         Other issues

            Dobson has raised several additional issues in this appeal.  These issues, however, are outside the limited scope of our review in this reemployment-benefits case.