This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






Damon R. Lueck,


Grand Casino Hinckley (1998),


Commissioner of Economic Security,


Filed April 1, 2003


Minge, Judge


Department of Economic Security

File No. 1084401


Damon R. Lueck, 614 Circle Court SW, Rochester, MN 55902 (pro se relator)


Grand Casino Hinckley, 777 Lady Luck Drive, Hinckley, MN 55037 (respondent)


Linda A. Holmes, 390 North Robert Street, St. Paul, MN 55101 (for respondent Commissioner)


            Considered and decided by Kalitowski, Presiding Judge, Minge, Judge, and Hudson, Judge.





U N P U B L I S H E D   O P I N I O N


MINGE, Judge


            Relator challenges the decision of the commissioner’s representative that he was discharged for misconduct and was therefore disqualified for unemployment compensation benefits.  Because the facts found by the representative do not constitute misconduct required by law to deny such benefits, we reverse.


Damon R. Lueck, the relator, was employed by Grand Casino Hinckley as a computer systems engineer.  He was discharged for failing to warn Grand Casino of potential problems with a new software system and for sending a rude and insubordinate email to his supervisor. 

Researching, recommending, and training others on software programs for use by Grand Casino were part of Lueck’s normal job duties.  Shortly before Grand Casino was to begin employee training classes for a new software system, Lueck received an email message from the trainer that the software manufacturer was in financial difficulty.  The trainer expressed concern that in the future Grand Casino would need to re-create the product or convert to a different product and “[t]hat may or may not be a painless effort.” 

Lueck offered several reasons for not pursuing this warning.  He had a hectic schedule because he was traveling out of town for a work-related course, and he was setting up the training session.  On the merits, he disagreed with the trainer’s concern about the potential problems Grand Casino would face with the software should the vendor go out of business.  Because his supervisor for the project was out on maternity leave and his interim supervisor was unfamiliar with the project, Lueck considered himself in charge of the training and the project.  He did not want to reschedule because he had been told that for budget reasons, he should complete the training before the end of the fiscal year.  In addition, Lueck felt the number of people involved would make rescheduling difficult. 

Another potentially significant factual dimension was the status of the casino’s actual purchase of the software.  On appeal Lueck asserts that the software had already been purchased.  As a result, he expected it would be used and the only question was when the training would occur.  The commissioner’s representative states that the software was yet to be acquired.  Unfortunately the record is silent on the timing of the purchase.  Accordingly, we disregard the status of the purchase in reaching our decision. 

Lueck did not inform his interim supervisor or anyone else with authority about the potential problems with the program.  His interim supervisor read the trainer’s email message and was concerned about the potential problems for Grand Casino.  As a result, the interim supervisor cancelled the scheduled training.  Upon learning of the cancellation, Lueck sent the interim supervisor an email message including statements that he was “sure [the trainer] would be thrilled enough to send [casino] a bill for his time so far,” that he was “SURE [the individuals who had signed up for the class] will be thoroughly thrilled by the fact that they can try to remake [their] plans,” that he was “sure [his usual supervisor]’s going to be thrilled when she gets back.”  Lueck included comments about the interim supervisor’s statement that a Microsoft product might be used:

If you plan on using [Microsoft’s] Frontpage or the other fancier option of WORD to manipulate web pages, then I might just bow out of the entire project.  I have no urge to try and manipulate my learning curve to an entire different product, especially when there is no problems with [the new software].  I also have no urge to try and support 13 users and show them how to make a word document look halfway decent, then turn into a web document.


Grand Casino investigated the matter and terminated Lueck’s employment.

The commissioner’s representative found that by failing to notify any decision-maker concerning this possible problem with the software supplier and sending the cynical email to his interim supervisor, Lueck disregarded a standard of behavior that his employer had a right to expect.  The commissioner’s representative concluded Lueck’s actions constituted employment misconduct that disqualified him from receiving unemployment benefits.



The question for this court is whether Lueck’s undisputed actions constitute such employment misconduct as to support denial of unemployment benefits.  Whether an employee committed an act constituting disqualifying misconduct is a mixed question of fact and law.  Colburn v. Pine Portage Madden Bros., 346 N.W.2d 159, 161 (Minn. 1984).  The determination of whether an employee committed a particular act is a question of fact.  Scheunemann v. Radisson South Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  The commissioner’s representative’s factual findings are viewed in the light most favorable to the decision and are not disturbed if evidence in the record reasonably tends to sustain them.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002); Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996).  The determination of whether those acts are misconduct is a question of law, and this court is free to exercise independent judgment.  Ress v. Abbott Northwestern Hosp., Inc.,448 N.W.2d 519, 523 (Minn. 1989). 

An employee discharged for misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4 (2002).  The statute provides as follows:

(a) Employment misconduct means:

(1) any intentional conduct * * * 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 * * * that demonstrates a substantial lack of concern for the employment.

(b)  Inefficiency, inadvertence, simple unsatisfactory conduct * * * are not employment misconduct.


Minn. Stat. § 268.095, subd. 6 (2002); Houston v. Int’l Data Transfer Corp., 645 N.W.2d 144, 149 (Minn. 2002).  Thus, even when an employee performs poorly and may be terminated from his position, he or she is not necessarily disqualified from receiving unemployment benefits.  Instead, the employee’s conduct must be deliberate and calculated to adversely affect the employer’s business.  See Ress, 448 N.W.2d at 524 (noting “A single incident where an employee deliberately chooses a course of action adverse to the employer can constitute misconduct” (citation omitted)).  This court is not to determine whether the employee should have been terminated but rather whether he should be denied unemployment compensation benefits.  Ress, 448 N.W.2d at 523.  There is no burden of proof on either party.  Minn. Stat. §§ 268.069, subd. 2, 268.105, subd. 1(b) (2002).

             Our supreme court recently interpreted the statutory definition of intentional misconduct to mean that it “must be deliberate and not accidental.”  Houston, 645 N.W.2d at 149 (citations omitted).  In Houston, the court determined that there must be a showing

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.


Id. at 150.        

Lueck’s actions are misconduct if they were deliberate and calculated to adversely affect Grand Casino’s business.  According to Houston, to constitute misconduct Lueck would have had to intentionally ignore his duties, obligations, or the standards the employer had a right to expect.  Houston, 645 N.W.2d at 150.  Here, Lueck was cognizantof upcoming deadlines for training and his responsibility to see that those deadlines were met.  Also, the record reflects that he genuinely disagreed with the trainer over the problems that the possible financial failure of the software vendor would create for his employer and that he failed to raise the matter due to that disagreement, his hectic schedule, and his lack of an effective working relationship with his interim supervisor.

The commissioner’s representative also considered the email message Lueck sent to his interim supervisor.  The tone of the communication was offensive.  The email message may well have been insubordinate; and the failure to communicate the trainer’s message may well have been a violation of an obligation to inform the employer of an operational risk and thus sufficient cause for termination.  But, while the email message was offensive and cynical, it was not an open confrontation.  The failure to communicate was not shown to be intentional or out of disregard for or with such indifference toward the casino as to indicate a substantial lack of concern for the casino’s interest.  That decision was a difference of opinion at a hurried time in Lueck’s work schedule which was a mistake, inadvertence, or simply unsatisfactory.  When viewed from the perspective most supportive of the commissioner’s representative as we must on this appeal, Lueck’s action does not as a matter of law constitute employment misconduct. 

We conclude that the commissioner’s representative erred as a matter of law by determining that Lueck’s actions constitute employment misconduct and in denying him unemployment benefits.