This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C7-00-1943

 

Debra L. Pearson,

Relator,

 

vs.

 

Lakeside Hospitality,

Respondent,

 

Commissioner of Economic Security,

Respondent.

 

Filed May 15, 2001

Affirmed

Lansing, Judge

 

Department of Economic Security

File No. 509100

 

Debra L. Pearson, 319 Park Street, Detroit Lakes, MN 56501 (pro se relator)

 

Laura R. Peterson, Mary A. Rice, Mary A. Rice, P.A., 6600 City West Parkway, Suite 230, Eden Prairie, MN 55344 (for respondent Lakeside Hospitality)

 

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

 

            Considered and decided by Halbrooks, Presiding Judge, Lansing, Judge, and Huspeni, Judge.*

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            Debra Pearson appeals the Commissioner of Economic Security’s determination that she is disqualified from receiving unemployment insurance benefits.  Because the record supports the commissioner’s finding that Pearson terminated her employment before she was discharged and the commissioner’s alternative finding that the proposed discharge was based on misconduct, we affirm.

FACTS

            Debra Pearson worked as a waitress for Lakeside Hospitality from April 1997 until May 2000.  The commissioner’s representative found that, during Pearson’s employment, Lakeside received complaints that Pearson repeatedly made negative comments to co-workers and displayed a negative attitude toward her job.  Pearson acknowledged that she had repeatedly complained to her co-workers about their job skills and had a negative attitude toward her work.  Lakeside orally warned Pearson about her conduct.

On May 7, 2000, several employees complained to Lakeside that Pearson’s continuing negative remarks were causing them to consider ending their employment with Lakeside.  On May 11, Pearson’s manager gave her a written disciplinary warning, telling her that two of her co-workers were considering quitting because of her negative comments and attitude.  The manager specifically warned Pearson that further reports of negative comments and behavior would result in termination of her employment.  Following the written warning, Pearson called several of her co-workers at home to ask if they had complained to the manager about her behavior.  The manager concluded that the calls, which were upsetting to at least one of the employees, violated the written warning, and he decided to discharge Pearson. 

             Because Pearson’s next scheduled work day, May 14, 2000, was a busy day for Lakeside, the manager intended to wait until the following day, May 15, to talk with Pearson.  He told her that she was not needed on May 14 but to come in on May 15.  Pearson did not come into work on May 15.  When the manager called her at home, she stated she was not coming in because she understood she had been discharged.

Pearson applied for unemployment insurance benefits.  The Department of Economic Security initially determined that she was disqualified because she had quit her job without a good reason.  Pearson appealed and, after a hearing, an unemployment-law judge reversed the determination, finding that Pearson could have reasonably believed she was fired.  Lakeside appealed, and the commissioner’s representative reversed the unemployment-law judge, finding that a reasonable employee might have concluded that she was likely to be discharged, but not that she had been discharged.   The commissioner’s representative further found that Pearson committed employment conduct justifying discharge.  By writ of certiorari, Pearson appeals both findings.

D E C I S I O N

            “Whether an employee has been discharged or voluntarily quit is a question of fact.”  Midland Elec., Inc. v. Johnson, 372 N.W.2d 810, 812 (Minn. App. 1985).  Factual findings are reviewed in the light most favorable to the decision, and an appellate court must accept those findings if the evidence reasonably tends to support them.  White v. Metropolitan Med. Ctr., 332 N.W.2d 25, 26 (Minn. 1983).

            Unless an exception applies, an employee who quits a job is disqualified from receiving unemployment insurance benefits.  Minn. Stat. § 268.095, subd. 1 (2000).  An employee quits his or her job “when the decision to end the employment was, at the time the employment ended, the employee’s.”  Id., subd. 2 (2000).  But an employee is discharged “when any words or actions by an employer would lead a reasonable employee to believe that the employer will no longer allow the employee to work for the employer in any capacity.”  Id., subd. 5 (2000).

            The manager testified that he did not tell Pearson she was discharged on May 14, but did tell her that she was not needed that day.  He said that he intended to discharge Pearson the next day but wanted to give her a chance to explain, even though he thought it unlikely that her explanation would cause him to change his mind.  Pearson testified that she did not come back to work because she thought the manager had terminated her employment.

The commissioner’s representative found that the employer’s testimony on this subject was more credible than Pearson’s testimony, and we are required to defer to the commissioner’s representative’s assessment of witness credibility.  See Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  The employer’s testimony supports the finding that Pearson voluntarily quit her job in anticipation of being discharged.  See Souder v. Ziegler, Inc., 424 N.W.2d 834, 835-36 (Minn. App. 1988) (holding employee voluntarily quit when, after receiving a disciplinary warning, she left work and did not return).

Even if Pearson had been discharged, the record supports the commissioner’s representative’s alternative finding that Pearson committed misconduct disqualifying her from receiving unemployment insurance benefits.  Employment misconduct is any intentional conduct “that disregards the standards of behavior that an employer has the right to expect of the employee or disregards the employee’s duties and obligations to the employer” or any negligent conduct “that demonstrates a substantial lack of concern for the employment.”  Minn. Stat. § 268.095, subd. 6(a) (2000).

The commissioner’s representative found that (1) Lakeside Hospitality had received complaints from Pearson’s co-workers about Pearson’s negative comments and attitude; (2) some of Pearson’s co-workers had told the manager that they were considering quitting because of Pearson’s comments; (3) Pearson’s manager warned Pearson that if he received another complaint about her behavior, he would discharge her; and (4) after being warned to stop the behavior, Pearson persisted by calling several co-workers at home to ask them if they had complained about her to the manager.  The record supports these findings. 

Causing workplace disruption and dissension among co-workers and refusing to heed a supervisor’s warnings to stop behaving negatively is misconduct.  See Booher v. Transport Clearings, 260 N.W.2d 181, 183 (Minn. 1977) (concluding that employee’s spreading rumors and creating office discord was misconduct); Feia v. St. Cloud State College, 309 Minn. 564, 565, 244 N.W.2d 635, 636 (1976) (finding employee’s disruption of school’s art program by making negative comments about method of presenting coursework is misconduct).

The record contains sufficient evidence to support the commissioner’s representative’s conclusion that Pearson quit her job or, alternatively, that a termination of Pearson’s employment for misconduct was supported by the evidence.  Either result disqualifies Pearson from receiving benefits.

Affirmed.



* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.