This opinion will be unpublished and

may not be cited except as provided by

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







Janice E. Tolifson,







Commissioner of Economic Security,




Filed January 22, 2001


Anderson, Judge


Department of Economic Security

Case No. 2501


Jason M. Hastings, Krekelberg & Skonseng, P.L.L.P., 213 South Mill Street, Fergus Falls, MN  56537 (for relator)


Melinda Hanson Weerts, McLarnan, Hannaher, & Skatvold, P.L.L.P., 730 Center Avenue, Suite 202, P.O. Box 8, Moorhead, MN  56561-0008 (for respondent, Subway); and


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


            Considered and decided by Toussaint, Presiding Chief Judge, Anderson, Judge, and Mulally, 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 findings that her behavior while employed constituted misconduct under Minn. Stat. § 268.095, subd. 6 (2000).  Because we find that the commissioner’s representative’s findings of employment misconduct are reasonably supported by the record, we affirm the denial of unemployment benefits.


            In early 1992, respondent Subway hired relator to manage its Subway franchise in Fergus Falls.  Respondent Subway fired relator because she created a hostile work environment by interacting with other employees inappropriately. 

A hearing was held before an unemployment law judge regarding relator’s discharge.  There was a great deal of testimony concerning relator’s conduct.  Lee Fowler, the owner of the Subway, testified that in the spring of 2000, he witnessed relator reduce an employee to tears after “read[ing] her the riot act.”  Fowler testified that he told relator that she had to apologize to the employee for the incident.  Fowler also testified that he and Subway’s general manager hired an assistant manager who worked at the Fergus Falls store.  Fowler testified that the assistant manager asked to be relocated because relator was difficult to work with and because of the way relator interacted with the crew.  Fowler admitted, however, that the store was highly profitable and that relator completed all of her paperwork in a timely fashion.  In the summer of 2000, Fowler and relator met to discuss relator’s employment.  Fowler testified that he spoke to relator about her interaction with the other employees at the meeting, but maintained that he never used the word “warning.”

            The Subway’s general manager testified that while training a new employee, relator “ma[d]e * * * sarcastic or unproductive remarks to the employee.”  He also testified that he overheard relator use inappropriate language while speaking to an employee.  Nevertheless, the general manager admitted never warning relator about her conduct.  The assistant general manager testified that during an afternoon lunch rush, relator scolded an employee for certain actions and used a vulgarity in front of customers.  It is unclear whether the assistant general manager criticized relator for this conduct. 

            Relator admitted raising her voice to employees, but she denies cursing at them.  Furthermore, relator’s witness admitted that he thought about quitting after he was told that relator had gossiped about his gambling. 

The unemployment law judge found that relator was fired for reasons other than employment misconduct.  On appeal to the commissioner’s representative, the representative found that respondent received an increasing number of complaints from employees concerning relator’s conduct.  The representative found that several employees requested transfers or quit because of relator.  Based on these findings, the representative found relator was fired for employment misconduct.  This appeal followed


A commissioner’s representative’s determination that an employee is disqualified from receiving unemployment benefits for misconduct is a mixed question of fact and law.  Colburn v. Pine Portage Madden Bros., Inc., 346 N.W.2d 159, 161 (Minn. 1984).  On appeal from a denial of unemployment benefits, we must review the commissioner’s representative’s decision, rather than that of the unemployment law judge.  Weaver v. Minn. Valley Labs., Inc., 470 N.W.2d 131, 133 (Minn. App. 1991). 

We will affirm if the evidence supports the findings of fact and if “the conclusion on those facts is not contrary to the statutory mandate.”  Colburn, 346 N.W.2d at 161.  We view the commissioner’s representative’s factual findings in the light most favorable to the decision and sustain those findings when the evidence in the record reasonably tends to support them.  Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996); White v. Metro. Med. Ctr., 332 N.W.2d 25, 26 (Minn. 1983). 

Whether an employee’s acts constitute misconduct, however, is a question of law, and we remain free to exercise our independent judgment.  Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989); see also Scheunemann v. Radisson South Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).

            Minn. Stat. § 268.095, subd. 6(a) (2000) partially defines employment misconduct 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 or disregards the employee’s duties and obligations to the employer.


(Emphasis added.)

Both the supreme court and this court have found misconduct under a variety of circumstances.[1]  Here, relator signed two standard employment forms that stated respondent’s policy that an employee could be fired without warning for verbal abuse of other employees.  This court has held that when an employee violates an employer’s policy, the violation is misconduct and, therefore, this misconduct warrants disqualification from the right to receive unemployment benefits.  See Sivertson v. Sims Sec., Inc., 390 N.W.2d 868, 871 (Minn. App. 1986) (noting violations of employer’s policies constitutes misconduct), review denied (Minn. Aug. 20, 1986).

Relator’s conduct violated the standards that her employer had a right to expect of its employees.  Relator cursed on at least two occasions, and the record suggests that relator verbally abused an employee and brought her to tears. 

Because the record reasonably supports the commissioner’s representative’s findings, relator was legally discharged for misconduct under Minn. Stat. § 268.095, subd. 6(a), and, therefore, relator is not entitled to receive unemployment benefits. 



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

[1] See, e.g., Moeller v. Minn. Dep’t of Transp., 281 N.W.2d 879, 882 (Minn. 1979) (stating employee’s failure to properly notify employer of absence considered employment misconduct); Manos v. First Bank Minnehaha, 357 N.W.2d 372, 375-76 (Minn. App. 1984) (employee committed gross misconduct when she failed to report large overpayments that employer had made on her paychecks).