This opinion will be unpublished and

may not be cited except as provided by

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






Mark A. McGraw,





Vine Park Brewing Company Pub,



Commissioner of Economic Security,



Filed May 13, 2003

Forsberg, Judge

Randall, Judge, concurring specially

Schumacher, Judge, concurring specially


Department of Economic Security

File No. 886202


Donald R. McNeil, 8500 Normandale Lake Boulevard, Suite 2110, Minneapolis, MN 55437 (for relator)


Paul W. Chamberlain, Chamberlain Law Firm, 1907 Wayzata Boulevard, Suite 130, Wayzata, MN 55391 (for respondent Vine Park Brewing Company Pub)


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


            Considered and decided by Randall, Presiding Judge, Schumacher, Judge, and Forsberg, Judge.

U N P U B L I S H E D   O P I N I O N


            Relator challenges the determination that he was discharged for employment misconduct and therefore disqualified from receiving unemployment benefits.  Because relator’s conduct showed a deliberate disregard for the employer’s reasonable expectations, we affirm.


            Relator Mark McGraw worked as a chef and kitchen manager for Vine Park Brewing Company Pub (Vine Park).  Allyson Williams and David Thompson are owners of the restaurant and McGraw is Williams’ cousin.  In March 2002, McGraw and other managers received a memo reminding them of various managerial duties and stressing the importance of editing employee punch times for payroll purposes.

            On April 15, 2002, McGraw became upset when he noticed that Williams and Thompson had left the restaurant during a busy time of the evening.  On their return, he confronted them.  After a moment, the conversation moved to Williams’s office, out of sight of restaurant patrons. 

            Once in the office, the conversation quickly became heated and angry.  Williams and Thompson complained that McGraw’s performance had been unsatisfactory in a number of ways, and that he had not been properly completing the tasks they expected of him.  McGraw disagreed and became upset.  Finally, Williams asked McGraw if he was able to complete his responsibilities and behave respectfully towards the owners and other staff.  McGraw responded that he could not, stormed out of the room, and shouted “F**k you” to Williams as he left.  He was terminated immediately and asked to return his keys to the restaurant.

            McGraw applied for and received unemployment benefits.  Vine Park appealed the award, and a hearing was held before an unemployment law judge on June 28, 2002.  Testimony established that McGraw was often hostile and disrespectful toward the owners and other staff members, and that a number of performance issues existed.  McGraw acknowledged that he used profanity in the workplace regularly, and that he did so on April 15.  But the employer also admitted that McGraw probably would not have been terminated if not for the argument on April 15.

            After the hearing, the unemployment law judge determined that McGraw had not been terminated for misconduct and should not be disqualified from receiving unemployment benefits.  Vine Park again appealed, this time to the Commissioner of Economic Security.  After a de novo review of the record, the commissioner’s representative found that on April 15, the employer reasonably requested that McGraw perform his duties and behave respectfully in the workplace.  McGraw’s profane and insubordinate response to this request showed a deliberate disregard for his duties and the employer’s expectations, and constituted employment misconduct.  McGraw was thus disqualified from unemployment benefits, and was ordered to pay back all benefits he had received.  This appeal follows. 


            On appeal, this court reviews the commissioner’s decision, not that of the unemployment law judge.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  We review findings of fact in the light most favorable to the commissioner’s decision and will not disturb them if there is evidence that reasonably tends to support them.  Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).  Whether an employee committed employment misconduct is a mixed question of fact and law.  Colburn v. Pine Portage Madden Bros., Inc., 346 N.W.2d 159, 161 (Minn. 1984).  Whether an employee committed the act in question 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 is discharged for misconduct is disqualified from receiving unemployment compensation benefits.  Minn. Stat. § 268.095, subd. 4(1) (2002).  Employment misconduct is defined in relevant part 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[.]


Id., subd. 6(a)(1) (2002). 

            Here, it is uncontested that relator shouted profanity at his employer as he left the office on April 15.  Relator argues that this incident does not show a deliberate disregard for the employer’s expectations.  We disagree. 

            Where an employee’s conduct is deliberate and intentional, a single incident is sufficient to establish misconduct.  Ress, 448 N.W.2d at 524.  The commissioner’s representative found that Williams and Thompson reasonably requested that relator perform his duties and treat them and other staff in a respectful manner.  McGraw’s rude, profane, and insubordinate response evinces a lack of concern for the employer’s expectations or for the employment itself.  We conclude that this act does constitute employment misconduct as defined by Minn. Stat. § 269.095, subd. 6(a)(1) (2002). 

            Relator argues that his conduct falls under the “hot-headed incident” exception to the definition of employment misconduct.  Under this rule, if in an isolated incident, an employee acts in the heat of the moment, before making a rational, deliberate decision, the conduct may be excepted from the definition of misconduct.  Windsperger v. Broadway Liquor Outlet, 346 N.W.2d 142, 144 (Minn. 1984).  Relator claims that the argument on April 15 became heated so quickly that he did not have time to make a rational decision and shouted out the profanity in the heat of the moment. 

            But, the “hot-headed incident” exception no longer exists under Minnesota law.  When the legislature amended the language of Minn. Stat. § 269.095, subd. 6 in 1997, it eliminated the language on which the common law exception was based.  As this court stated in Isse v. Alamo Rent-A-Car, 590 N.W.2d 137, 140 (Minn. App. 1999), review denied (Minn. Apr. 20, 1999), without this language, the exception is no longer valid. 

            Because the evidence reasonably supports the commissioner’s representative’s findings of fact, and because relator’s conduct showed a deliberate disregard for the employer’s expectations, relator is disqualified from receiving unemployment compensation. 






RANDALL, Judge (concurring specially)

            I concur with the result reached by the majority writer, and I concur with the sentiments expressed in Judge Schumacher’s special concurrence.




ROBERT H. SCHUMACHER, Judge (concurring specially)

Although I concur that relator's conduct constitutes employment misconduct and he should be disqualified from the receipt of unemployment benefits as of the time of the commissioner's decision, I write to express that it seems unjust to compel relator to repay almost $10,000 he received up to that point, some six months later.

            Minnesota's statute requires that relator repay the total amount of unemployment benefits he received because he was ultimately determined to have been ineligible to receive those benefits.  Minn. Stat. §§ 268.18, subd. 1(a)(4), 268.105, subd. 3a(c) (2002).  Most states have similar requirements.  But, a few states' statutes provide exceptions to the repayment rules.  For example, a California statute provides that a person is not liable to repay erroneously awarded benefits if they are paid pursuant to the decision of an unemployment law judge affirming an initial award, regardless of any further appeal.  Cal. Unemp. Ins. Code § 1380 (West 2002).  Essentially, if a person "wins" two of three levels, as relator did here, he is not liable to repay the fund, even if a later appeal results in disqualification.   Pennsylvania law provides a similar "two out of three" exception.  Pa. Stat. Ann. tit.43 § 874(b)(1)(i) (2002). 

            Unemployment compensation is paid to people who have lost their jobs and are in the process of looking for other work.  It is designed to replace the income they relied on and to sustain them and their families until they are able to secure new employment.  It is unfair to twice tell a person in relator's position that he is eligible to receive benefits and then suddenly tell him he must repay it all six months later, when the funds he has received are obviously already spent.  A "two out of three" or "no-fault" exception would better serve the interests of fairness.  This is a matter that should be corrected through legislation such as exists in California.



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