This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
Commissioner of Economic Security,
Minnesota Department of Economic Security
File No. 415502
Ingeborg Green, 3203 90th Curve, Blaine, MN 55449 (pro se relator)
Park Towers, Bigos Management, Inc., 6400 Barrie Road, Suite 1400, Edina, MN 55435 (pro se respondent employer)
M. Kate Chaffee, Lee B. Nelson, Minnesota Department of Economic Security, 390 North Robert Street, St. Paul, MN 55101 (for respondent commissioner)
Considered and decided by Peterson, Presiding Judge, Harten, Judge, and Poritsky, Judge.
Relator was employed by Park Towers as a caretaker from May 26, 1999, until February 19, 2002, when she was discharged. In her pro se brief to this court, she challenges the decision of the commissioner’s representative that she was discharged for employment misconduct. When relator continued to engage in inappropriate conduct after her supervisors warned her to stop such conduct, she disregarded a standard of behavior that her employer had a right to expect. We affirm the decision of the commissioner’s representative.
Respondent Park Towers, a property management company, employed relator Ingeborg Green as a caretaker from May 26, 1999, until February 19, 2002, at which time she was discharged for misconduct. Prior to her discharge, Green made several negative comments to other employees about Kathy Lindom, who was the on-site manager and Green’s direct supervisor. At a disciplinary meeting on January 4, 2002, Park Towers issued an oral warning to Green regarding those negative comments. Green walked out of the meeting. Because of her behavior on January 4, Green received a written warning for insubordination on January 8. The warning noted Green’s “[r]efusal to listen [and] discuss verbal warning” and that she “[w]alked out of office, using profane language directed towards manager.” On or about February 3, 2002, Green called Lindom a “bitch.” On February 8, Green called Lindom a liar, shouted at her, and called her a stupid cow in German.
On February 19, 2002, Park Towers terminated Green. Park Towers sent Green a letter explaining the reasons for her discharge. The letter stated that the termination was for gross misconduct in the following areas:
Excessive disrespect for [Lindom] to the extent that it has become harassment. You have yelled at Kathy Lindom, used profane language directed at her, and sworn at her in German. You have made negative comments regarding Ms. Lindom’s management style and about her personal life to other employees to the point that it could be construed as defamation of character.
Green sought unemployment benefits. On February 28, 2002, the department informed Green that her misconduct disqualified her from receiving benefits. Green appealed, and an evidentiary hearing was held April 29, 2002. At the hearing, several Park Tower employees testified that Green yelled at Lindom, called her a “bitch,” told other employees that Lindom was crazy and a liar because she used drugs, and that she slept with residents.
Green testified that she yelled at Lindom and called her names, but the German name-calling was only “joking around.” Green further testified that she felt that Lindom was trying to force her to retire and that Lindom and other employees were spying on her. On May 7, 2002, the unemployment law judge determined that appellant was discharged due to employment misconduct and was therefore disqualified from receiving unemployment benefits. Green again appealed, and on August 15, 2002, the commissioner’s representative affirmed the decision of the unemployment law judge, concluding that
[a]n employer has a right to expect that an employee will treat supervisors with respect and will not engage in insubordinate conduct. Green had received verbal and written warnings about her disrespectful treatment of her supervisor, Kathy Lindom. Despite these warnings, Green’s disrespectful and insubordinate conduct continued. Green showed a disregard for standards of behavior that an employer has a right to expect from an employee. Green committed disqualifying employment misconduct.
Green then sought review by this court.
D E C I S I O N
This court reviews the decision of the commissioner’s representative, not that of the unemployment law judge. Kalberg v. Park & Recreation Bd., 563 N.W.2d 275, 276 (Minn. App. 1997). A reviewing court should sustain the findings of the commissioner’s representative if evidence in the record reasonably supports the findings. White v. Metro. Med. Ctr., 332 N.W.2d 25, 26 (Minn. 1983). When parties present conflicting evidence, the appellate courts are to defer to the findings of the commissioner’s representative and may not again review the evidence. Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995).
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 S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997). But 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 N.W. Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989). We note that this court does not consider whether the employee should be terminated, but rather whether she should be denied unemployment benefits. Id. at 523.
Under Minn. Stat. § 268.095, subd. 6(a) (2002), 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.
The supreme court recently interpreted the statutory definition of misconduct in Houston v. Int’l Data Transfer, 645 N.W.2d 144 (Minn. 2002). The court concluded that Minn. Stat. § 268.095, subd. 6(a), established a two-part test for determining misconduct. Id. at 149. The court must ask, (1) is the conduct intentional and (2) does the conduct disregard either the “standards of behavior that an employer has the right to expect” or else does the conduct disregard “the employee’s duties and obligations to the employer?” Id. The court interpreted “intentional” to mean “deliberate and not accidental.” Houston, 645 N.W.2d at 149 (citations omitted). The Houston 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.
“As a general rule, refusing to abide by an employer’s reasonable policies and requests amounts to disqualifying misconduct.” Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002) (citation omitted). Here, the record shows that Park Towers had a policy that prohibited harassment. The policy specifically defined harassment to include slurs, epithets and derogatory comments. The record shows that Green yelled at Lindom, called her a “bitch,” told other employees that Lindomwas crazy and a liar because she used drugs, and that she slept with residents. Moreover, Green’s conduct was intentional because she continued her behaviors even after receiving a warning at a disciplinary meeting on January 4, 2002. During the meeting, Jana Miller, Park Towers’ property manager, informed Green that her behavior, negative comments and disrespect for Lindom “would not be tolerated any longer.”
By continuing her behavior, Green engaged in deliberate conduct that evinced an intent to ignore standards of behavior the employer had a right to expect. Houston, 645 N.W.2d at 150; see Booher v. Transp. Clearings of Twin Cities, 260 N.W.2d 181, 183 (Minn. 1977) (concluding that employee who continued to commit violations after being warned to refrain demonstrated a disregard of standards of behavior that an employer has a right to expect). The record reasonably supports the findings of the commissioner’s representative that Green showed a disregard for standards of behavior that an employer has a right to expect, and therefore as a matter of law Green’s acts constituted misconduct.