This opinion will be unpublished and

may not be cited except as provided by

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






Afolorunso Osisanya,





Hammer Residences, Inc.,



Commissioner of Economic Security,



Filed May 6, 2003


Toussaint, Chief Judge


Department of Economic Security

File No. 608202


Thomas H. Boyd, Anton J. Moch, Winthrop & Weinstine, P.A., 3200 Minnesota World Trade Center, 30 East Seventh Street, St. Paul, MN 55101 (for relator)


Hammer Residences, Inc., Attn. Kim Hansen, 1909 East Wayzata Boulevard, Wayzata, MN 55391 (respondent)


M. Kate Chaffee, Department of Economic Security, 390 North Robert Street, St. Paul, MN 55101 (for respondent Commissioner of Economic Security)


            Considered and decided by Shumaker, Presiding Judge, Toussaint, Chief Judge, and Hudson, Judge.

U N P U B L I S H E D  O P I N I O N

TOUSSAINT, Chief Judge,

            Relator Afolorunso Osisanya challenges the determination by the Commissioner of Economic Security that he was discharged due to employment misconduct and thereby is disqualified for unemployment benefits.  Because we conclude that relator did not deliberately and intentionally disregard the reasonable expectations of his employer, we reverse.


            In reviewing an economic security decision, this court will review questions of fact in the light most favorable to the commissioner’s decision and will not disturb the findings if they are reasonably supported by the evidence.  Ress v. Abbott N.W. Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).  Whether an employee is disqualified for 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 the employee committed a particular act is a question of fact.  Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  Whether the act constitutes misconduct is a question of law on which this court is “free to exercise its independent judgment.”  Ress, 448 N.W.2d at 523 (citations omitted). 

            An employee who engages in misconduct may not receive unemployment benefits.  Minn. Stat. § 268.095, subd. 4(1) (2002).  Disqualifying employee misconduct is defined 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.


Minn. Stat. § 268.095, subd. 6(a)(1) (2002).  Employment misconduct specifically does not include


[i]nefficiency, inadvertence, simple unsatisfactory conduct, poor performance because of inability or incapacity, or absence because of illness or injury with proper notice to the employer * * *.


Id., subd. 6(b)(2002).


The Minnesota Supreme Court has recently articulated a two-prong test to determine whether an employee’s actions constitute employment misconduct as defined by Minn. Stat. § 268.095, subd. 6(a)(1).  First, the employee’s conduct must be intentional.  Houston v. Int’l Data Transfer Corp., 645 N.W.2d 144, 149 (Minn. 2002).  Second, the conduct must “disregard standards of behavior the employer has a right to expect or the employee’s duties and obligations to the employer.”  Id.  This second prong also requires an independent analysis of the employee’s intent. 150.  To meet both prongs of the test, the employee must not only have engaged in intentional conduct, but must also have intended to disregard the employer’s standards.  Id.    

            To satisfy the first prong of the test and constitute disqualifying misconduct, an employee’s behavior must be “deliberate, calculated, and intentional.”  McGowan v. Executive Express Transp. Enters., 420 N.W.2d 592, 596 (Minn. 1988).  Isolated, good-faith mistakes or errors in judgment will not be sufficient.  Sticha v. McDonald’s No. 291, 346 N.W.2d 138, 140 (Minn. 1984).  Here, relator received two written warnings for his loud and aggressive manner with other employees.  But the record shows that on at least one of these occasions, the employer recognized that relator was not intentionally disrespectful or harassing.  And, the two times relator failed to take residents for outdoor walks on request, he had forgotten to bring appropriate winter clothing for himself.  There is no evidence that relator deliberately forgot his winter coat so as to avoid performing his duties.  While the evidence shows that at times relator failed to perform tasks as expected, it does not show that he refused to perform them.  We conclude from this record that the first prong of the test, intentional conduct, is not met.  

To satisfy the second prong of the test, an employee’s conduct must show a deliberate disregard of the employer’s reasonable expectations.  Schmidgall v. Filmtec Corp., 644 N.W.2d 801, 806 (Minn. 2002).  Here, the commissioner cites several incidents that it claims combine to show that relator deliberately disregarded the employer’s standards and policies.  Specifically, it points to relator’s two written warnings for loud and aggressive behavior; his meetings with supervisors to discuss expectations; his failure to perform expected duties; and finally, his choice to engage in a personal phone call rather than attending to an urgent work situation.  But relator offers enough evidence to show that he was simply an unsatisfactory employee, and did not intentionally disregard his employer’s policies or his duties.  The day he asked another employee to transport a resident for him, he was trying to finish assisting another resident with a financial matter.  Finally, relator did engage in a personal phone call when he should have been assisting a resident, but he also helped to dress the resident after he had been showered.  Relator has stated that he thought that dressing the resident was the best way for him to assist in the situation.

It appears from the record that relator did not perform his responsibilities in the manner that his employer expected.  But it also appears that relator generally made a good-faith effort to perform, and that his shortcomings as an employee were due to inadvertence, rather than a deliberate disregard for the employer’s expectations.  This does not rise to the level of employment misconduct disqualifying relator from receiving unemployment compensation.  Minn. Stat. § 268.095, subd. 6(b).