This opinion will be unpublished and

may not be cited except as provided by

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






Daniel M. Phuong,





Deborah L. Marynak,



Commissioner of Economic Security,



Filed August 1, 2000


Randall, Judge


Department of Economic Security

File No. 112 99



Peter B. Knapp, DeAnne M. Hilgers, Certified Student Attorney, William Mitchell Law Clinic, 875 Summit Avenue, St. Paul, MN  55105 (for relator)


Deborah L. Marynak, DDS, 1740 James Avenue, St. Paul, MN 55105 (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 Randall, Presiding Judge, Lansing, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N


            The commissioner’s representative determined that relator was disqualified from receiving reemployment insurance benefits because relator committed misconduct.  Relator challenges this decision, contending, first, that the record does not support the commissioner's representative's findings and, second, that his actions did not constitute misconduct.  We agree and reverse.


            Respondent Deborah L. Marynak, D.D.S., employed relator Daniel M. Phuong as a dental assistant from July 13, 1998, through June 3, 1999.  On June 3, Dr. Marynak called Phuong to her office and gave him a list of reasons for his immediate termination.

            Phuong sought reemployment insurance benefits.  The Department of Economic Security determined that intentional misconduct had not been established and concluded Phuong was eligible for benefits.  Dr. Marynak appealed, and a hearing was held before a reemployment insurance judge.  Dr. Marynak did not appear at the hearing, and no witnesses testified on her behalf.  The reemployment insurance judge affirmed the department's original decision and concluded that Phuong was not disqualified from receiving benefits.

            Dr. Marynak appealed from the reemployment insurance judge's decision.  The commissioner's representative concluded that Phuong was discharged for misconduct because he engaged in intentional conduct demonstrating a disregard for his employer's interests and the standards of behavior his employer had a right to expect.  The commissioner's representative reversed the reemployment insurance judge's decision and held that Phuong was disqualified from receiving benefits.  Phuong petitioned this court for writ of certiorari.   

                                                                 D E C I S I O N

            Whether an employee committed misconduct justifying disqualification from receiving reemployment insurance benefits is a mixed question of fact and law.  Colburn v. Pine Portage Madden Bros., 346 N.W.2d 159, 161 (Minn. 1984). The commissioner's representative's findings of fact must be viewed in the light most favorable to the decision, and those findings must not be disturbed if there is evidence reasonably tending to sustain them.  White v. Metropolitan Med. Ctr., 332 N.W.2d 25, 26 (Minn. 1983).  Whether the commissioner's representative erred by disqualifying an employee from receiving reemployment insurance, however, is a question of law on which an appellate court is "free to exercise its independent judgement."  Ress v. Abbott NW Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989) (citations omitted).

I.          Findings of Fact

            Phuong asserts that the record does not reasonably support the commissioner's representative's findings.  The record includes Phuong's testimony at the hearing before the reemployment insurance judge and documents submitted by Dr. Marynak and Phuong.

            Phuong accepts the commissioner's representative's findings on his dates of employment, salary, work schedule, and job title.  In Dr. Marynak's list of reasons for terminating Phuong, she noted that while she was ill in January 1999, she sent Mark McConeghey to ask Phuong to "deep clean" the office that day.  According to Dr. Marynak, Phuong informed McConeghey that he would do it the next day instead.  Phuong testified that although he did not recall refusing to stay to do the deep cleaning,

[i]f that was the case, the reason being was that Mark had come in very late into the afternoon.  I did not feel like staying later than, I think he had come in at about two or three o'clock, and all of us had wanted to get out early, and so if that was the case then I just, I might have.[1]


            The commissioner's representative found that on January 28, 1999, Phuong was informed that Dr. Marynak wanted him to "deep clean."[2]  The representative found that Phuong responded that he would do it the next day.  The record shows that he did so.  Based on the employer's written reasons and Phuong's testimony, the commissioner's representative's finding on this issue is supported by the record. 

            The commissioner's representative further found that Dr. Marynak "later" told Phuong that she was frustrated because when asked to do things, he would forget, refuse, or do things his own way. 

            In Dr. Marynak's list of reasons for terminating Phuong, she stated that she expressed these sentiments to Phuong on May 13, 1999.  Phuong testified that Dr. Marynak never made these statements to him before she terminated him on June 3.  This court will give deference to the commissioner's representative's credibility determinations.  Gradine v. College of St. Scholastica, 426 N.W.2d 459, 462-63 (Minn. App. 1988), review denied (Minn. Aug. 24, 1988).  However, Dr. Marynak did not testify or submit a sworn statement, and she did not submit any other evidence demonstrating that she had previously informed Phuong that she was frustrated with his behavior.  Cf.Minn. R.3310.2922 (1999) (stating reemployment insurance judge not bound by rules of evidence when admitting evidence, but decision may only be based on "reliable, probative, and substantial evidence").  The evidence does not reasonably support the commissioner's representative's finding on this issue.

            According to Dr. Marynak's written reasons for terminating Phuong, while she was bonding a patient's crown on May 26, 1999, she asked Phuong to give her double the normal amount of cement, but Phuong replied that he thought he could get along with the usual amount.  In a separate reason for Phuong's termination, Dr. Marynak stated that she had spoken with Phuong a number of times about what should and should not be said in front of the patients.  In written responses to the Department of Economic Security before the initial decision, Dr. Marynak listed five comments Phuong made in front of patients that Dr. Marynak believed were inappropriate.  She did not state whether she reprimanded Phuong for these comments or told him that they were inappropriate.  Dr. Marynak also submitted to the department a staff memo dated January 28, 1999, which stated that employees should "[k]eep comments around patients positive, especially if it involves the procedure." 

            The commissioner's representative also found that in May 1999, Phuong contradicted Dr. Marynak in front of a patient when the doctor requested double cement and Phuong responded that he thought he could get by with the usual amount.  The representative further found that Dr. Marynak had counseled Phuong several times on what should not be said in front of the patients.

            Phuong testified that he recalled asking Dr. Marynak if she wanted him to use one or two pours of cement "because I think one would work in this case."  He testified that she asked for double and he gave her double.  When asked about other comments he allegedly made, he responded that he was not sure what was appropriate to say in a dental office but that he tried to follow Dr. Marynak's lead during conversations. 

            There is reasonable support in the record for the finding that Phuong made a comment in front of a patient about the amount of cement needed for a procedure.  The staff memo indicates that Dr. Marynak's staff was notified that comments around patients should be kept positive, but support is thin for the finding that Dr. Marynak counseled Phuong several times about his comments.               

            Dr. Marynak's list of reasons for terminating Phuong included a notation that on May 20, 1999, she asked Phuong to attend and tape a lecture.  He asked how he should do so, and Dr. Marynak told him to check the number of dictaphone tapes available in the office.  According to Dr. Marynak, Phuong told her "[D]on't worry I'll figure out something."  Dr. Marynak noted that the lecture was not taped.

            The commissioner's representative next found that Dr. Marynak requested Phuong attend and tape a lecture.  The representative found that although Phuong attended the lecture, he took only one tape and was unable to tape the lecture.

            Phuong testified that the office only had one dictaphone tape.  According to Phuong, he informed Dr. Marynak of this and said he would figure out something, but she told him that she would give him a credit card to purchase prerecorded tapes of the lecture instead.  Dr. Marynak did not do this, and, Phuong stated, he telephoned her the night before the lecture, but she did not return his call.  Phuong testified that he was unable to record the entire lecture on the tape and that although he sat in the front row during the lecture, the tape was full of static making it difficult to understand.

            There is support for the commissioner's representative's finding that Phuong took only one tape to the lecture and ended up unable to tape the lecture.  However, this finding is incomplete.  It fails to note why Phuong took only one tape to the lecture or to note that the dictaphone, which Dr. Marynak asked Phuong to use, did not adequately tape-record the lecture. 

            Dr. Marynak stated in her reasons for dismissal that she had asked Phuong to stay out of the front but that when the front-desk chair was empty, he would sit in it and use the phone.  She also noted that he had called patients and filled out appointment cards for patients.  She went on to state that "this" is the front desk's job and not the assistant's job.  It is not clear whether she was referring to filling out appointment cards, calling patients, or both. 

            The commissioner's representative found that although Dr. Marynak informed Phuong to stay out of the front area of the office, Phuong frequently used the front desk and the telephone on the front desk without permission.

            Phuong testified that he called patients after procedures to check on their well-being and called patients to remind them to schedule check-ups.  He further testified that there were only three phones in the office:  one in Dr. Marynak's office, one in the lab, and one at the front-desk.  According to Phuong, Dr. Marynak's door was always closed, and client files were not allowed in the lab, so his only alternative was using the front-desk telephone.

            The evidence Dr. Marynak provided the department on this issue is cursory and does not explain whether Phuong was generally performing employment duties while in the front-desk area and, if so, whether Dr. Marynak had made another location available for Phuong to perform these duties.  Because Dr. Marynak did not appear at the hearing, there was no opportunity for the reemployment insurance judge to develop the record on this issue.  The commissioner's representative's finding is incomplete without a finding on whether Phuong was using the front-desk area because it was the only available location from which he could fulfill his job duties.  

            The representative next found that despite being a hard worker, Phuong frequently ignored or disregarded Dr. Marynak's directions on how to perform his duties.  Finally, the representative found that Phuong was discharged "because of [his] continuous failure and/or refusal to follow the employer's directions and policies and procedures." 

            The representative may have based these conclusory findings on the representative's own findings regarding Phuong's (a) failure to sign the employee manual, (b) refusal to "deep clean" when asked, (c) comments in front of the patients, (d) failure to tape a lecture successfully, and (e) use of the front-desk area.  Considering these incidents, the record does not support a finding that Phuong ignored or disregarded specific instructions, and it does not reasonably support a finding that he frequently did so.

II.        Misconduct Determination

            Phuong next asserts that even assuming the record reasonably supports the commissioner's findings, those findings are not sufficient to establish misconduct.

                Under the statute in effect when Phuong was discharged, a claimant discharged from employment is disqualified from receiving reemployment insurance benefits if the employer discharged the claimant for "misconduct that interfered with and adversely affected that employment."  Minn. Stat. § 268.095, subd. 4 (1) (1998).  Misconduct is defined 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 employer has the burden of proving that the discharged employee committed misconduct.  Ress, 448 N.W.2d at 523.

            Although Phuong did not sign the employee manual, the commissioner's representative did not find that Phuong refused to sign it.  Thus, his failure to do so could have been inadvertent.  The finding that Phuong refused to "deep clean" the office on the day he was requested to do so might, possibly, support the conclusion that he acted outside of the standards of behavior that an employer has a right to expect of an employee.  But this incident occurred in January 1999, and Phuong was not terminated until June 3.  Also, there is no evidence that Dr. Marynak ever reprimanded Phuong or even spoke to him about the incident.

            Phuong's statement in front of a patient about the amount of cement necessary for a particular procedure may have been inappropriate, but there was no finding that he did not complete the procedure as requested, and the comment was not egregious.  Further, the seminar taping was, at most, a misunderstanding.  Additionally, although the commissioner's representative found that Phuong used the front-desk area after being told not to do so, the representative did not make findings on what Phuong was doing in the front area.  According to both Dr. Marynak and Phuong, Phuong was using the area to telephone patients.  Without a finding indicating that there was another option available to Phuong to fulfill his job duties, his use of a telephone at the front desk was not misconduct.

                Finally, the accumulation of all of these actions does not constitute misconduct under the "last-straw" doctrine.  Under that doctrine, the employee's prior actions need not be related in "time or tenor" to the action resulting in termination, but the final infraction must be "of such a nature that it demonstrates conclusively the employee's utter disregard for the employer's interests."  Barstow v. Honeywell, Inc., 396 N.W.2d 714, 716 (Minn. App. 1986) (quotation omitted).  Here, the commissioner's representative did not find that Phuong took any action on, or immediately preceding, his June 3, 1999, termination that resulted in the discharge.  The most recent dated events in the findings include the double-cement comment in front of a patient in May 1999 and Dr. Marynak's reminder to sign the employee manual on May 13, 1999.  Absent a finding about the event that triggered Phuong's termination, the "last-straw" doctrine does not apply.

            The commissioner's representative's findings do not support the representative's conclusion that Phuong committed disqualifying misconduct by showing intentional disregard for his employer's interests and/or for the standards of behavior an employer has a right to expect.  The representative erred by disqualifying Phuong from receiving reemployment insurance benefits.


[1] Phuong's timecard for January 28, 1999, the date he was asked to deep clean, indicates that he worked from 7:10 a.m. to 4:45 p.m.  Dr. Marynak conceded that the deep-cleaning process takes four to five hours.

[2]  Deep cleaning a dental office means an extra-thorough, antiseptic cleaning of all surfaces.