This opinion will be unpublished and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
Big Ten Audit, Inc.,
Commissioner of Economic Security,
Department of Economic Security
File No. 646500
Tatyana Novitsky, 1700 Four Oaks Road, Apt. 328, Eagan, MN 55121-1839 (pro se relator)
Big Ten Audit, Inc., 9555 James Avenue South, Suite 255, Bloomington, MN 55431 (employer)
Kent E. Todd, 390 North Robert Street, St. Paul, MN 55101 (for respondent Commissioner of Economic Security)
Considered and decided by Peterson, Presiding Judge, Amundson, Judge, and Anderson, Judge.
U N P U B L I S H E D O P I N I O N
Pro se relator Tatyana Novitsky appeals from a decision of the representative of the Commissioner of Economic Security that she is disqualified from receiving unemployment compensation benefits because she was discharged for employment misconduct. We affirm.
Respondent Big Ten Audit, Inc., an accounting firm, employed Novitsky as an auditor beginning November 8, 1998. During her last year of employment, Novitsky experienced substantial personal problems, which caused her to miss work and to spend time at work dealing with her personal problems.
On February 8, 2000, David Engen, the office manager at Big Ten, issued a written warning to Novitsky. The warning put Novitsky on notice that management expected Novitsky to perform her auditing duties eight hours per day; that personal telephone calls in excess of three per day totaling ten minutes would be unacceptable; that absences from the office in excess of two 15-minute breaks and a lunch break would be unacceptable; and that any violations could be grounds for immediate dismissal.
On July 10, 2000, Novitsky was assigned an auditing project. After working on the project for 90 minutes, she spent several hours attending to personal matters. As a result, Big Ten discharged Novitsky.
An employee discharged from employment for misconduct is disqualified from receiving unemployment benefits. Minn. Stat. § 268.095, subd. 4 (1) (2000). Whether an employee has committed acts of disqualifying misconduct is a mixed question of fact and law. Colburn v. Pine Portage Madden Bros., 346 N.W.2d 159, 161 (Minn. 1984). This court views the commissioner’s factual findings in the light most favorable to the decision below and will not disturb the findings if there is evidence in the record that reasonably tends to support them. Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996). But the ultimate question of whether an employee’s actions constitute misconduct, “is a question of law upon which [the court] remains free to exercise its independent judgment.” Id. (quotation omitted).
The unemployment compensation act is remedial in nature, and the court should narrowly construe the disqualification provisions. Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).
Employment misconduct means:
(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).
An employer has the right to expect an employee to abide by reasonable requests within the expected job duties of the employee. McGowan v. Executive Express Transp. Enter., 420 N.W.2d 592, 596 (Minn.1988). Generally, when an employer’s request is reasonable and does not impose an undue burden on the employee, the employee’s refusal to comply with the request constitutes misconduct. Soussi v. Blue & White Serv. Corp., 498 N.W.2d 316, 318 (Minn. App. 1993).
Novitsky argues that she did not commit employment misconduct because she held her employer in the highest regard and did the job that she was hired to do. The commissioner’s representative’s decision, however, was not based on a determination that Novitsky did not do her job well. The decision was based on the specific factual finding that on July 10, 2000, Novitsky spent several hours at work dealing with personal concerns in violation of the written warning she received on February 8, 2000.
There is evidence in the record that supports the commissioner’s representative’s factual finding. On July 10, a Big Ten employee saw Novitsky working on a personal project at her desk for several hours during the afternoon. The employee was not available to testify, but a Big Ten representative who was told about the incident testified about it. Hearsay evidence is admissible in unemployment benefit hearings and can be used to support a determination that an employee was terminated for misconduct. Youa True Vang v. A-1 Maint. Serv., 376 N.W.2d 479, 482 (Minn. App. 1985). Another Big Ten employee testified that on July 10, she saw Novitsky send two personal faxes to her realtor and receive one fax from her realtor.
In the February warning letter, Big Ten informed Novitsky that she was to perform her auditing duties eight hours per day. Because there is evidence tending to support the commissioner’s findings that Novitsky worked on personal matters for several hours on July 10 rather than performing auditing duties for eight hours as required, and Big Ten’s request that Novitsky not perform personal tasks during work hours was a reasonable request, we conclude that Novitsky was discharged for employment misconduct.