This opinion will be unpublished and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

C8-00-1790

 

John E. Kutt,

Relator,

 

vs.

 

KRS Computer & Business,

Respondent,

 

Commissioner of Economic Security,

Respondent.

 

Filed July 10, 2001

Affirmed

Willis, Judge

 

Department of Economic Security

File No. 544200

 

Todd C. Pearson, Law Office of Todd C. Pearson, 220 South Sixth Street, Minneapolis, MN 55402 (for relator)

 

KRS Computer & Business Schools, Inc., 5100 West 82nd Street, Bloomington, MN 55437 (respondent)

 

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

 

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


U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

            Relator John E. Kutt seeks review of the commissioner’s representative’s determination that he was disqualified from receiving unemployment benefits because he was discharged from his employment for misconduct.  Because the record shows that Kutt committed employment misconduct, we affirm.

FACTS

Respondent KRS Computer & Business Schools, Inc. (KRS), employed relator John E. Kutt as a networking instructor from August 30, 1999, until April 26, 2000.  After his discharge, Kutt filed for unemployment benefits, and the Department of Economic Security determined that Kutt was not disqualified.  An unemployment-law judge affirmed the department’s determination.

On appeal, the commissioner’s representative found that (1) KRS had a policy providing that employees were expected to be at work on time and remain until the end of their shifts; (2) KRS warned Kutt about violations of this policy in December 1999 and January 2000; (3) on March 31, 2000, KRS gave Kutt a notice of probation and warning, dated March 30, 2000, stating that any further failure to perform duties in a satisfactory manner could lead to dismissal; (4) Kutt looked at the notice, stated that it was “BS,” and left immediately without signing it; (5) on April 24, 2000, Kutt left work 45 minutes early for a doctor appointment without his supervisor’s permission; (6) on April 26, 2000, Kutt reported to his cubicle 20 minutes after the start of the workday; and (7) KRS discharged Kutt on April 26, 2000, for his “failure and refusal to abide by the employer’s hours of work, despite warnings, and his failure to comply with the employer’s policies and procedures.”  The commissioner’s representative reversed the unemployment-law judge, determining that Kutt engaged in conduct that demonstrated “an intentional disregard [for] the standards of behavior which the employer has a right to expect of its employees.”  Kutt appeals by writ of certiorari.

D E C I S I O N

            A determination of the commissioner’s representative that an employee is disqualified for reasons of misconduct is a mixed question of fact and law.  Colburn v. Pine Portage Madden Bros., Inc., 346 N.W.2d 159, 161 (Minn. 1984).  Whether an employee committed the specific act or acts alleged to be misconduct is a question of fact, but whether the acts constitute misconduct is a question of law.  Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  This court defers to the commissioner’s representative’s findings of fact if they are reasonably supported by the evidence in the record, but “whether the [act or] acts constitute misconduct is a question of law upon which this court is ‘free to exercise its independent judgment.’”  Id. (quoting Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989)).

Minnesota law defines “employment misconduct” as:

(1) any intentional conduct, on the job or off the job, 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

(2) negligent or indifferent conduct, on the job or off the job, that demonstrates a substantial lack of concern for the employment.

 

Minn. Stat. § 268.095, subd. 6(a) (2000).  The supreme court has determined that leaving work early without a supervisor’s permission is employment misconduct.  See Colburn, 346 N.W.2d at 161.  In Colburn, a resort waitress asked her employer for a vacation day so that she could perform with a singing group at a high-school reunion.  Id. at 160.  The manager informed her that he expected her to work on the day in question but that she would be allowed to leave after serving dinner to her assigned group of guests, without having to clear and reset their tables.  Id.  On the day of the reunion, the employee left work after serving only the soup course in order to arrive at her performance on time.  Id.  The manager discharged the employee when she returned to work the next day.  Id.  The supreme court affirmed the commissioner’s representative’s determination that the employee’s early departure, without the manager’s permission, constituted employment misconduct.  Id. at 161.  Here, KRS informed Kutt that it expected him to remain until the end of his shifts, warned Kutt about violating those policies, and placed Kutt on probation for 30 days.  By leaving early from work without permission, Kutt committed employment misconduct.

Respondents also argue that Kutt committed employment misconduct by leaving early from the meeting with his supervisor on March 31, 2000.  Although we do not need to reach this issue, we note that this court has held that it is misconduct for an employee to refuse to discuss performance-related problems with his employer.  See Woodward v. Interstate Office Sys., 379 N.W.2d 177, 179-180 (Minn. App. 1985) (affirming determination that relator was discharged for misconduct for failing to respond to company president’s requests for progress reports and request for in-person meeting); Snodgrass v. Oxford Props., Inc., 354 N.W.2d 79, 80 (Minn. App. 1984) (affirming determination that relator was discharged for misconduct when, claiming that her supervisor was harassing her, she refused to go to his office to discuss complaints regarding her job performance and later refused to respond to questions regarding those complaints).  By leaving early from the meeting with his supervisor on March 31, 2000, Kutt committed employment misconduct.

Because the evidence in the record reasonably supports the commissioner’s representative’s determination, we affirm.

            Affirmed.