This opinion will be unpublished and

may not be cited except as provided by

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





Vern L. Rasmussen,





Micron Metal Works,



Commissioner of Economic Security,



Filed July 17, 2001


Gordon W. Shumaker, Judge


Department of Economic Security

File No. 507400




Patrick James Foley, 2353 Rice Street, Suite 118, Roseville, MN 55113 (for relator)


Micron Metal Works, 2181 108th Lane Northeast, Blaine, MN 55449 (respondent)


Kent E. Todd, 390 North Robert Street, St. Paul, MN 55101 (for respondent commissioner)




            Considered and decided by Amundson, Presiding Judge, Lansing, Judge, and Shumaker, Judge.


U N PU B L I S H E D   O P I N I O N


            Relator challenges the commissioner’s representative’s determination that he committed employment misconduct and is therefore disqualified from unemployment benefits.  We reverse.


            Relator Vern L. Rasmussen, an eight-month employee of respondent Micron Metal Works, Inc., met with his supervisor, Gregory Kriel, and Micron’s vice-president, Charles Thrasher, during the week of April 20, 2000, and indicated that he was having medical problems and could not do his assigned work.  He inquired about the possibility of other positions in the company.  Thrasher told him that he had no other positions for which Rasmussen would be qualified.

On April 24, 2000, Rasmussen brought to Kriel and Thrasher a note from his physician excusing him from work until May 6.  Prior to his April meeting with Thrasher and Kriel, Rasmussen had requested vacation for the final week of April.  Thrasher approved the vacation and Rasmussen believed he would receive his wages for that week.

            Thrasher’s interpretation of Micron’s vacation policy was that any vacation time taken by an employee between the first six months and first year of employment would not be paid to the employee until the employee actually returned to work following the vacation.  Thus, although Thrasher had approved the vacation, he put a hold on Rasmussen’s wages because he was not sure that Rasmussen would return to work.

            When Rasmussen did not receive his vacation pay, he called Kriel on May 5 and was angry and upset.  Kriel testified that in the conversation Rasmussen made a threat:

and he did make the statement that he would not put a gun to his head, but he said that Monday things will be going down and he’s going to go to prison for it * * *.


(Emphasis added.)

            Rasmussen’s version of the conversation is different:

And I told Greg, you know, my truck was broke down and he asked me – get out of there, told him I am not going to drink, I am just came from the bar and I needed some cigarettes and I didn’t go there to drink in the first place, but I told him, I was not going to drink and I was not going to put a gun to my head and I am not going to rob some place and go to prison.  But when I get to work on Monday is when I get there on Monday, the [sh-t] is going to hit the fan, is what I told him.


(Emphasis added.)

            Rasmussen did not report for work on Monday, May 8, 2000, but he did call Thrasher at about noon and he asked about his vacation pay.  Thrasher discussed Rasmussen’s failure to come to work that day and said that had he returned to work the company would have paid him.  Thrasher then stated that he was terminated because of the threatening telephone call on May 5 to Kriel.

            Rasmussen applied for unemployment benefits.  An adjudicator for the department of economic security disqualified him on the ground that he voluntarily quit his job.  On appeal, an unemployment law judge ruled that Rasmussen was disqualified from benefits because of misconduct that resulted in his discharge:


On May 5, 2000 [Rasmussen] had a vehicular breakdown and called the employer pressing for issuance of his vacation paycheck.  When told that it was being held up at the supervisor’s instruction, [Rasmussen] called the supervisor at home, expressing anger and making references to a gun.  [Rasmussen] suggested that he would put the gun to someone’s head, and it wouldn’t be his own.


(Emphasis added.)

On further appeal, the commissioner’s representative affirmed the unemployment law judge’s decision, holding that Rasmussen used threatening language in his conversation with his supervisor:

Among other things, he told Kriel that when he got to work on Monday (May 8, 2000), “the [sh-t was] going to hit the fan.”


(Emphasis added.)


            The scope of this court’s review in unemployment compensation cases is limited to determining whether the record reasonably supports the commissioner’s representative’s decision.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  We review the commissioner’s representative’s factual findings in a light most favorable to the decision. Fujan v. Ruffridge-Johnson Equip., 535 N.W.2d 393, 395 (Minn. App. 1995).

The issue of whether 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).  Whether or not the employee committed an act alleged to be misconduct is a fact question, but the interpretation of that act as misconduct or not is an issue of law.  Scheunemann v. Radisson South Hotel, 562 N.W. 2d 32, 34 (Minn. App. 1997).  This court may exercise its independent judgment on issues of law.  Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).

            The only factual finding the commissioner’s representative made about the language Rasmussen used in his telephone call on May 5 was that when he returned to work on Monday the sh-t would hit the fan.  There is no reference to Rasmussen’s mention of a gun.  Rasmussen admits that he said what the representative found.

Misconduct for purposes of unemployment benefits is defined in Minn. Stat § 268.095, subd. 6 (a)(1) (2000) as

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 * * * .


The misconduct must “interfere with and adversely affect employment.”  Peterson v. Fred Vogt & Co., 495 N.W.2d 875, 877 (Minn. App. 1993).

The record shows that both Kriel and Rasmussen recall that Rasmussen said he would not put a gun to his head.  But Kriel recalls that Rasmussen said things would happen on Monday for which he would go to prison, and Rasmussen contends that he said he would not rob some place and go to prison.  The unemployment law judge resolved the conflict in this testimony by finding that Rasmussen said he would “put the gun to someone’s head, and it wouldn’t be his own.”  The record does not support that finding; no one testified that Rasmussen said that.  In any event, the commissioner’s representative did not resolve the  testimonial conflict about the gun.  The gun reference would provide a context for the statement that the sh-t would hit the fan.  If Kriel’s testimony about the gun reference were found to be true, the conclusion that Rasmussen made a threat would be substantiated.  On the other hand, if Rasmussen’s testimony were true, the record would not support that conclusion.  Because the commissioner’s representative did not make any factual finding as to the gun reference, we are left to evaluate only the statement that “the [sh-t] is going to hit the fan.”

The factual context for evaluating the import of that statement is this: Rasmussen’s employer approved his vacation and allowed Rasmussen to believe that he would be paid.  When Rasmussen did not receive his pay he became angry and upset and said the sh-t would hit the fan when he returned to work.  In that context, we cannot say that Rasmussen’s crude figure of speech could reasonably have been taken as a threat.  The statement at best is ambiguous and, without the gun reference alleged by Kriel, does not amount to a threat of harm.  Thus, we hold that the commissioner’s representative’s conclusion that Rasmussen committed disqualifying misconduct was erroneous.

We do not, however, agree with Rasmussen that he was terminated prior to May 8, 2000.  The record supports the finding of that date as his termination.

            Finally, the record includes a temporary restraining order obtained on behalf of Micron on May 19, 2000, which restrains Rasmussen from contacting certain Micron employees and excludes Rasmussen from certain property, including Micron’s business property.  The affidavit supporting the order quotes Rasmussen as having threatened his supervisor on May 8, 2000, and then repeating the threats to other employees from May 8 through May 10.  The quotation from May 8 is not supported by the testimony of anyone and the remaining allegation is of threats occurring after the discharge and is outside the record.  Thus, our decision is confined strictly to the testimonial record before us on appeal and to events prior to and including May 8, 2000.