This opinion will be unpublished and

may not be cited except as provided by

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






Michael G. Swanson,





Trinity Universal Insurance,



Commissioner of Economic Security,



Filed August 1, 2000

Affirmed in part, reversed in part and remanded

Harten, Judge


Department of Economic Security

Agency File No. 3499


Lynn M. Starkovich, Mackall Crounse & Moore, PLC, 901 Marquette Avenue, Suite 1400, Minneapolis, MN 55402 (for relator)


Jeffrey B. Oberman, Kristin L. Boetticher, Oppenheimer Wolff & Donnelly, 3400 Plaza VII Building, 45 South Seventh Street, Minneapolis, MN 55402-1609 (for respondent Trinity Universal Insurance)


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


            Considered and decided by Schumacher, Presiding Judge, Harten, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N


            Relator Michael G. Swanson appeals the commissioner’s decision that he was discharged for misconduct and is ineligible for reemployment benefits.  We affirm the decision, but reverse the effective date of disqualification and remand to the department to consider the effect of respondent Trinity Universal Insurance’s untimely protest.


            Swanson began working for Trinity Universal Insurance (Trinity) in July 1991 as an attorney.[1]  In 1997, Swanson’s title was changed to Senior Claims Adjuster.  His duties, which included control of claims, conducting investigation, and fair and timely disposition of claims, remained the same.

            Swanson was counseled on numerous occasions about his attitude, his performance, and his failure to follow company policies and procedures.  He was often confrontational with his supervisor.  Twice in a short period of time he was rude to people outside the company.  He frequently submitted files and reports with insufficient details and failed to follow company procedure for organization of files.  Despite requests for more detailed reports, he continued to submit insufficient reports and files.

            Swanson also failed to follow numerous company policies.  Trinity mandated that any employee out of the office for reasons unrelated to work fill out and turn in a timecard.  Swanson was notified of the policy and given a stack of timecards for future use.  Despite this, he failed to submit timecards unless specifically told to do so.  Swanson was also expected to adhere to Trinity’s regular business hours, but on many occasions he arrived late or left early without notifying his supervisor. 

            On April 22, 1999, Swanson received an employee-counseling statement advising him that Trinity was dissatisfied with his performance, attitude, and failure to follow company procedures.  Following the meeting, Swanson’s performance, attitude, and attendance did not improve.  He was discharged on May 4, 1999, and he thereafter applied for reemployment insurance benefits.  Having received no protest from Trinity, the department issued an initial determination of nondisqualification for reemployment benefits in Swanson’s favor.  On June 28, 1999, Trinity appealed the determination of nondisqualification.  On appeal, the reemployment insurance judge reversed the determination, finding that Swanson was discharged for misconduct and therefore ineligible for benefits, effective the date of discharge.  The commissioner’s representative agreed.  Swanson appeals.


1.         Misconduct

            A determination by the commissioner’s representative that an employee committed misconduct is a mixed question of fact and law.  Colburn v. Pine Portage Madden Bros., Inc., 346 N.W.2d 159, 161 (Minn. 1984).  The representative’s factual findings are viewed in the light most favorable to the decision and will 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 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).  A reviewing court will affirm if the findings of fact are supported by the evidence and if the conclusions are not contrary to law.  Colburn, 346 N.W.2d at 161.

            Swanson argues that the representative’s decision that he was discharged for misconduct is not supported by the evidence.  An employee who is discharged for misconduct is disqualified from receiving reemployment benefits.  Minn. Stat. § 268.095, subd. 4 (1998). 

Misconduct is 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).     

            Swanson argues that he was an exempt employee and therefore not subject to Trinity’s office hours.  There is evidence, however, that Swanson was told that he was expected to comply with the company’s office hours and was warned about his tardiness and leaving early.  Continued tardiness, after receiving warnings, constitutes misconduct.  Evenson v. Omnetic’s, 344 N.W.2d 881, 883 (Minn. App. 1984). 

            Swanson argues that the two times he was curt with people outside the company constituted only two incidents in the nine years he was with Trinity.  But “[a] single incident where an employee deliberately chooses a course of action adverse to the employer can constitute misconduct.”  Ress v. Abbot N.W. Hosp., Inc., 448 N.W.2d 519, 524 (Minn. 1989).  An employee’s rudeness to customers shows a willful and wanton disregard of an employer’s interests.  Montgomery v. F&M Marquette Nat. Bank, 384 N.W.2d 602, 605 (Minn. App. 1986), review denied (Minn. July 13, 1986).

            Swanson argues that he did not know about Trinity’s timecard policy.  The record shows that Swanson’s supervisor told him about the policy and gave him a stack of timecards; nevertheless, Swanson had to be told repeatedly to fill them out.  A knowing violation of an employer’s policies or rules constitutes misconduct.  Montgomery, 384 N.W.2d at 604; see also Ruzynski v. Cub Foods, Inc., 378 N.W.2d 660 (Minn. App. 1985) (employee’s violation of employer’s timecard policy constituted misconduct).

            Regarding his failure to comply with requests for more specific information in his files and reports, Swanson argues that he asked his supervisor to discuss the problems with him but his supervisor refused.  The record shows, however, that although the supervisor told Swanson that his door was always open, Swanson never came to him with questions, and when the supervisor went to Swanson’s office to discuss the problems, Swanson became argumentative and hostile.

This court defers to the representative’s credibility determinations as long as there is evidence in the record supporting the credibility determination.  Arnolds Supply & Kleenit Co. v. Vang, 410 N.W.2d 37, 39 (Minn. App. 1987).  “The general rule is that if the request of the employer is reasonable and does not impose an unreasonable burden on the employee, a refusal will constitute misconduct.”  Sandstrom v. Douglas Mach. Corp., 372 N.W.2d 89, 91 (Minn. App. 1985). Additionally, insubordination can constitute misconduct.  Montgomery, 384 N.W.2d at 605.

            The commissioner’s representative found that Swanson’s conduct was intentional and violated standards of behavior Trinity had a right to expect.  We conclude that the evidence supports the commissioner’s representative’s findings and his decision is not contrary to law.  

2.         Untimely appeal

            Swanson argues that pursuant to Minn. Stat. § 268.101 (1998), Trinity’s protest was untimely and any disqualification resulting from the untimely protest should not have taken effect until the Sunday two weeks following the protest.

            Minn. Stat. § 268.101 provides that the commissioner of economic security shall notify an employer if a former employee applies for a reemployment insurance account and that

[a]n employer shall have ten calendar days after the sending of the notice to make a protest in a manner prescribed by the commissioner raising any issue of disqualification * * * .


Minn. Stat. § 268.101, subd. 1(b).  Any protest by the employer made more than ten calendar days after the notice is untimely.  Id.  Even if an untimely protest is made, however, the commissioner must “promptly determine any issue of disqualification” raised by the employer.  Minn. Stat. § 268.101, subd. 2(c).  The result of an untimely protest by an employer is that

any disqualification imposed as a result of determination issued pursuant to this paragraph shall begin the Sunday two weeks following the week that the untimely protest was made.



            The parties agree that Trinity’s protest was untimely.  Because the determination that Swanson is disqualified from receiving benefits failed to address the effect of Trinity’s untimely protest, we reverse and remand in part with directions to the department to reopen this issue and make appropriate findings.

            Affirmed in part, reversed in part and remanded.

[1] At that time, the company was Milwaukee Insurance Company.  In 1995, Milwaukee Insurance Company was purchased by and became Trinity Universal Insurance.

[2] Trinity argues that Swanson relies on an outdated version of Minn. Stat. § 268.101. Numerous changes to the reemployment compensation law, including this one, became effective August 1, 1999.  These changes do not affect this case, which should be decided under the law in effect on May 4, 1999, the date Swanson was discharged.