This opinion will be unpublished and

may not be cited except as provided by

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






Andy J. Will,





Citywide Enviroserv, Inc.,



Commissioner of Economic Security,




Filed September 19, 2000


Randall, Judge


Department of Economic Security No. 722-99


Gregg B. Nelson, Nelson Law Offices, Mail Box 167, 855 Village Center Drive, North Oaks, MN 55127(for relator)


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


Ruth Y. Ostrum, 270 Grain Exchange North, 301 Fourth Avenue South, Minneapolis, MN 55415 (for respondent Citywide Enviroserv, Inc.)


            Considered and decided by Randall, Presiding Judge, Harten, Judge, and Halbrooks, Judge.


U N P U B L I S H E D  O P I N I O N


            Relator challenges the commissioner’s representative’s decision that relator was disqualified from receiving benefits because he was discharged for misconduct.  He contends that the matter should be remanded because the commissioner’s representative failed to make findings on the credibility of the witnesses; he also argues that the incident leading to his dismissal did not constitute misconduct.  We affirm.


            Relator Andy J. Will worked full-time as a furnace duct cleaner for respondent Citywide Enviroserv, Inc., from June 1, 1998, through May 19, 1999.  He was a member of a two-person cleaning crew that drove the company van to job sites where they used company equipment to clean customers’ ducts.

Citywide operated out of the home of Julie Stephens, who was president of the company, and Bryan Donnelly, who acted as the company manager and supervised the cleaning crews.  The cleaning crews would come to the home office the morning of each workday before going to that day’s job sites.  At the job sites they would meet with the customers and explain the services to be provided.  Company policy called for the operators to get the customer’s signatures on an invoice and on a credit card slip before performing any work.  They were given a 30-minute paid lunch break. 

Stephens and Donnelly testified at the hearing that relator had a history of violating basic company policies and procedures.  They testified that he was frequently late to work, had stopped for breakfast on company time, often took more than 30 minutes for lunch, had been the subject of complaints for driving too fast in the company van, and frequently left company property at job sites, requiring someone to go back for the forgotten items.  Citywide also submitted written documentation stating relator he had failed to notify a customer and Citywide after his crew accidentally burned a hole in a customer’s carpet.  Citywide stated that relator was warned that these actions were against company policy. 

Stephens and Donnelly also described another incident that took place while relator was the lead crew member on a job.  As lead crew member, relator was responsible for obtaining the customer’s payment check.  In this incident, relator forgot a check for $1,200.  After returning to the company office, Stephens asked him to retrieve the check, but he refused.  An argument ensued, during which relator said he was “not going back to the f-cking job.”  Eventually the other crew member volunteered to retrieve the check. 

Stephens described the events immediately preceding relator’s discharge as follows:  Relator and his other crew member went to a customer’s house for a job, and relator failed to get the customer’s signature on the credit card slip and invoice before beginning the work.  Then, after they began working, they damaged a duct in the customer’s home.  Relator called the office and Stephens agreed to pay for the damage and discount the customer’s bill.  This did not satisfy relator or the customer, and relator called back to ask for a greater discount.  While the crew was still at the customer’s house, the customer argued with Stephens on the telephone, but they could not resolve the dispute.  Stephens ultimately decided to abort the job and directed relator to pack up the equipment and leave the job site. 

It was customary for the cleaning crews to call the office when they were leaving a site.  Stephens and Donnelly testified it typically took only 10-15 minutes for a cleaning crew to pack up their equipment and leave a job. When 40 minutes had passed and relator had not called, Donnelly called him and found that the crew was still at the job site. 

Donnelly asked about why they were still at the job and about relator’s failure to get the customer’s signature.  Relator responded that he did not want to talk about it.  Donnelly questioned relator, repeating what relator had said, and relator again said he did not want to talk about it.  Then Donnelly told relator he was fired.  After relator returned to the office, Stephens told him he was fired, and relator angrily and profanely demanded to see Donnelly.  Stephens told him to leave, and eventually he left.

At the hearing, relator testified that he was rarely late for work, only once had breakfast on company time, and never intentionally exceeded his allotted lunch time.  He said other crews often left property at job sites, and he disputed his employer’s version of the incident in which they claimed he cursed and refused to return to a job site to pick up a payment check he had forgotten.  He said he was a good and safe driver and that he did not have an opportunity to notify the customer about the burned carpet.  He also stressed that he had never received a “write up,” which was the company procedure for handling disciplinary matters.  Relator claimed that on the day he was fired he had refused to discuss with Donnelly why he was still at the customer’s house and why he had failed to get the signatures only because he was having trouble hearing Donnelly on the cellular phone.

The Department of Economic Security initially deemed relator disqualified from benefits because he was fired for misconduct.  Relator appealed the determination and, after a hearing, the reemployment insurance judge reversed his disqualification, finding that relator’s testimony and that of his witnesses was more credible than the testimony of his employer’s witnesses and concluding that relator had been discharged for reasons other than misconduct.

Citywide appealed the decision,[1] and the commissioner’s representative reversed the reemployment judge, concluding that the evidence showed relator was discharged for misconduct based on his prior record and his conduct on the day he was fired.


            Whether 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 commissioner’s representative’s findings are reviewed in the light most favorable to the decision and will be upheld if the record evidence reasonably supports those findings.  Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996).  After the facts are established, whether the employee’s behavior constituted misconduct is a question of law reviewed de novo on appeal.  Monyoro v. Marriott Corp., 403 N.W.2d 325, 328 (Minn. App. 1987).


            Relator argues that the case should be remanded to the commissioner's representative for factual findings on why the commissioner’s representative rejected the reemployment insurance judge’s findings on witness credibility.

            Relator’s argument is precluded by the supreme court’s ruling in Tuff v. Knitcraft Corp., 526 N.W.2d 50 (Minn. 1995).  In that case, the commissioner’s representative reversed the referee’s fact findings and concluded that the employee had committed disqualifying misconduct.  Id. at 51.  This court reversed and remanded, holding that the commissioner’s representative was required to specify why it had rejected the referee’s credibility determination.  Tuff v. Knitcraft Corp., 520 N.W.2d 483, 486-87 (Minn. App. 1994).  The supreme court reversed, reinstating the decision of the commissioner’s representative and holding that this court’s decision imposed a burden on the commissioner’s representative that was inconsistent with caselaw and the applicable statute.  Tuff, 526 N.W.2d at 52. 

            The statute at the time of the Tuffdecision authorized the commissioner to:

[D]isregard the findings of fact of the referee and examine the testimony taken and make any findings of fact as the evidence taken before the referee may, in the judgment of the commissioner, require, and make any decision as the facts found by the commissioner require.


Minn. Stat. § 268.12, subd. 13(3) (1992).

            The statute when relator was terminated likewise authorized the commissioner’s representative to review the reemployment insurance judge’s findings and decision de novo:

The commissioner may disregard the findings of fact of the reemployment insurance judge and examine the evidence and make any findings of fact as the evidence may, in the judgment of the commissioner require, and make any decision as the facts found by the commissioner require.


Minn. Stat. § 268.105, subd. 3(b) (1998).

            Thus, relator is seeking to impose a greater burden on the commissioner’s representative than is authorized in the governing statute, and relator’s argument fails.  Cf. Lolling, 545 N.W.2d at 377 (stating appellate court reviews findings of commissioner’s representative not those of reemployment insurance judge, even though findings may involve witness credibility).


            Relator also argues that his actions did not constitute misconduct as a matter of law.  See Monyoro, 403 N.W.2d at 328 (stating after facts established, whether employee committed misconduct is question of law reviewed de novo).

            Misconduct includes

                        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.


Minn. Stat. § 268.095, subd. 6 (1998).  “Inefficiency, inadvertence, simple unsatisfactory conduct, or poor performance as a result of inability or incapacity are not misconduct.”  Id., subd. 6(3). 

Relator appears to be arguing that, under the circumstances, Donnelly’s request to discuss (a) relator’s failure to promptly leave the job site despite Donnelly’s instructions and (b) relator’s failure to get the customer’s signatures was an unreasonable request.  Cf. Loewen v. Lakeland Mental Health Ctr., Inc., 532 N.W.2d 270, 274 (Minn. App. 1995) (stating where employer’s request is reasonable, refusal to comply may constitute misconduct).  But there is no evidence in the record suggesting that Donnelly’s request placed an undue burden on relator.  Approximately 40 minutes had elapsed since the job was called off and relator’s crew was told to leave.  It was reasonable for Donnelly to have expected relator to explain himself.  Relator’s repeated refusal to discuss his actions with his supervisor showed intentional disregard for the standards of behavior that an employer has the right to expect of the employee”; therefore, this conduct alone may constitute misconduct.  Minn. Stat. § 268.095, subd. 6(2); see Ress v. Abbott Nw. Hosp., Inc., 448 N.W.2d 519, 524 (Minn. 1989) (stating single incident may constitute misconduct if employee deliberately chooses course of action adverse to employer).

In addition, the record contains evidence of other on-the-job conduct that contributed to Citywide’s decision to discharge relator.  Under the last straw doctrine, “behavior unrelated in time or tenor may, as a whole, support a determination of misconduct.”  Barstow v. Honeywell, Inc., 396 N.W.2d 714, 716 (Minn. App. 1986) (citations omitted); see also Flahave v. Lang Meat Packing, 343 N.W.2d 683, 687 (Minn. App. 1984) (stating employee’s repeated infractions of employer’s work rule showed substantial disregard of employer’s interest and of duties and obligations owed to employer).  The final incident resulting in termination must “demonstrate[ ] conclusively the employee’s utter disregard for the employer’s interests.”  Barstow, 396 N.W.2d at 716 (quotation omitted).

At the time of his discharge, relator already had been warned about numerous on-the-job actions that departed from company policy.  These included tardiness, going to breakfast on company time, taking long lunches, driving too fast, leaving company property at job sites and refusing to retrieve it, and failing to disclose damage his crew had inflicted on a customer’s rug.  Cf. McGowan v. Executive Express Transp. Enters.,Inc., 420 N.W.2d 592, 596 (Minn. 1988) (holding refusal to perform task within expected job duties constituted misconduct); Gilkeson v. Industrial Parts & Serv., Inc., 383 N.W.2d 448, 452 (Minn. App. 1986) (upholding disqualification from benefits where employee “demonstrated a substantial disregard of his employer's interests by his pattern of failing to follow policies and procedures and ignoring directions and requests”); Daniels v. Gnan Trucking, 352 N.W.2d 815, 816 (Minn. App. 1984) (holding refusal to perform task known to be part of job  “was a deliberate act of insubordination” and constituted misconduct); Evenson v. Omnetic’s, 344 N.W.2d 881, 883 (Minn. App. 1984) (holding continued tardiness, combined with several warnings, constituted misconduct).

Taking the record as a whole, and viewing the totality of the evidence, there is enough to affirm the commissioner's representative's decision that relator committed misconduct and is disqualified from receiving benefits.


[1] This was the second time Citywide appealed the decision.  The first time, because part of the record was lost, the commissioner’s representative vacated the reemployment judge’s first decision and remanded the case for another hearing.  The reemployment judge again found relator’s testimony more credible than that of his employer’s witnesses and concluded that relator was not fired for misconduct.