This opinion will be unpublished and

may not be cited except as provided by

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







David E. Frank,





DC Group, Inc.,



Commissioner of Economic Security,




Filed December 10, 2002

Klaphake, Judge


Department of Economic Security

File No. 890201



Kevin M. Lindsey, 1611 Ames Avenue, St. Paul, MN  55106 (for respondent Frank)


James P. Young, Lundquist Law Offices, P.A., 1012 Grain Exchange Building, 400 South Fourth Street, Minneapolis, MN  55415 (for relator)


Linda Holmes, M. Kate Chaffee, Michelle Overby, Certified Student Attorney, Department of Economic Security, 390 N. Robert Street, St. Paul, MN  55101 (for respondent Commissioner)


            Considered and decided by Klaphake, Presiding Judge, Kalitowski, Judge, and Harten, Judge.

U N P U B L I S H E D   O P I N I O N


            In this certiorari appeal, relator DC Group, Inc. challenges a decision by a representative of the respondent Commissioner of Economic Security determining that respondent David E. Frank was discharged for reasons other than employment misconduct and was therefore qualified to receive unemployment insurance benefits.  Because the evidence reasonably supports the decision of the commissioner’s representative, we affirm.


            Our review of unemployment insurance cases is very narrow and limited to determining whether the record reasonably supports the decision of the commissioner’s representative.  See Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995); Cent. Specialties, Inc. v. Comm’r of Econ. Sec., 622 N.W.2d 833, 835 (Minn. App. 2001), review denied (Minn. May 15, 2001).  When the parties have presented conflicting evidence, this court must defer to the commissioner’s credibility assessments and determinations.  Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995).

            An employee is disqualified from receiving benefits if discharged for employment misconduct, which is defined as “intentional conduct” by an employee 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.”  Minn. Stat. § 268.095, subds. 4(1), 6(a)(1) (2002).  This definition requires record evidence that

the employee not only engaged in intentional conduct, but also intended to, or engaged in conduct that evinced an intent to, ignore or pay no attention to his or her duties and obligations or the standards of behavior the employer has a right to expect.


Houston v. Int’l Data Transfer Corp., 645 N.W.2d 144, 150 (Minn. 2002).  This construction of “employment misconduct” is “consistent with the remedial nature of unemployment compensation and the declared public policy that unemployment benefits are for those who are ‘unemployed through no fault of their own.’”  Id. (quoting Minn. Stat. § 268.03, subd. 1 (2000)).

            Here, the employer argues that the employee had a willful and wanton disregard for the employer’s interests because he either intentionally misrepresented his qualifications to the employer, and thus lacked the expertise to complete the project, or intentionally chose to delay the project by performing other, nonessential work.  The employee claims that he was a conscientious employee who struggled to complete the complex project, despite additional demands on his time, and that his representations regarding the status of the project were accurate and not misleading.

            Misconduct does not include mere “[i]nefficiency, inadvertence, simple unsatisfactory conduct, [or] poor performance because of inability.” Minn. Stat. § 268.095, subd. 6(b) (2002).  Thus, even though an employee is guilty of poor performance and may be terminated or discharged, he or she is not necessarily disqualified from receiving unemployment benefits.  Rather, the employee’s conduct must be deliberate and calculated to adversely affect the employer’s business.  Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 524 (Minn. 1989). 

            Here, based on the evidence, which included testimony from the employee, the commissioner’s representative found:  (1) the employee did not intentionally mislead the employer about his qualifications or abilities when he advised the president that he was capable of developing an e-mail system for the field technicians to use on site; (2) the employee expected that it would take two to three months to set up the laptop system and believed that he could have it completed by April 2001; (3) the employee was often asked to perform other tasks that were not related to the project and these tasks took up a considerable amount of his time; (4) the employee did his best to complete the project in a timely manner; and (5) the employee followed the instructions he was given by the president and his supervisor to the best of his ability.  Given these findings, the commissioner’s representative properly concluded that the employee was discharged because he failed to meet his employer’s expectations, not because he intentionally misled the employer or intentionally failed to do his best.

            We therefore affirm the commissioner’s representative’s determination that the employee was discharged for reasons other than employment misconduct.