This opinion will be unpublished and

may not be cited except as provided by

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







Roger Christensen,



JIT Powder Coating,



Commissioner of Economic Security,



Filed June 10, 2003


Lansing, Judge


Department of Economic Security

File No. 1053501



Roger D. Christensen, 17357 North Creek Drive, Farmington, MN  55024-9291 (pro se relator)


JIT Powder Coating, PO Box 327, Farmington, MN  55024 (respondent)


Lee B. Nelson, 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 Lansing, Presiding Judge, Peterson, Judge, and Wright, Judge.

U N P U B L I S H E D   O P I N I O N


            A discharged industrial painter appeals, by writ of certiorari, the determination of a commissioner’s representative that he committed employment misconduct disqualifying him from receiving unemployment benefits.  Because the record supports the representative’s determination of misconduct within the meaning of Minn. Stat. § 268.095, subd. 6(a) (2002), we affirm.


            Roger Christensen worked as a lead painter for JIT Powder Coating Company from November 1997 to August 30, 2001, when he was discharged for “unsatisfactory performance.”  In the thirteen months preceding his discharge, Christensen received three written performance warnings.  Christensen’s August 30, 2001, notice of termination referred to the three written warnings but grounded the dismissal on two additional incidents during Christensen’s final week of employment.  The notice stated that on August 25 Christensen clocked out before the end of his shift without the permission of a supervisor and on August 30 Christensen’s “complete lack of attention to equipment settings” resulted in flawed products that had to be repainted.

            A Department of Economic Security adjudicator initially determined that Christensen was eligible for unemployment benefits because he was discharged for reasons other than employment misconduct.  JIT appealed, and a hearing was held before an unemployment law judge.

At the hearing, Christensen admitted leaving early on August 25 and acknowledged that leaving before the end of a shift without permission was not “standard practice” at JIT.  He also acknowledged the painting problems on August 30, but testified that he did not see the flaws before the products went into a curing oven and, when he saw the problems after the products emerged from the oven, he attempted to correct them.  A representative of JIT testified that the flawed painting was the result of inadequate monitoring during the automated painting process.  In response to questions by the JIT representative, Christensen acknowledged that painting flaws can be detected by inspecting the products before they go into the oven, that he had been the lead painter on eight previous runs of the same product, and that those previous experiences demonstrate his ability to complete that particular painting job successfully.

The JIT representative also presented evidence of the three previous warnings Christensen had received.  All three warnings identified a pattern of inconsistent work performance by Christensen, and the third warning notified Christensen that his employment was “at high risk unless immediate, significant and sustained improvement is demonstrated.” (Emphasis omitted.)

            The unemployment law judge affirmed the department adjudicator’s determination that Christensen had been discharged for reasons other than misconduct.  On appeal, a commissioner’s representative reversed, finding that Christensen’s early departure on August 25 was intentional conduct amounting to employment misconduct and that his inattention to work evidenced on August 30, and in the three earlier written warnings, was negligent or indifferent conduct constituting misconduct under the statute.  Christensen now appeals the decision of the commissioner’s representative.


            An employee discharged for misconduct is not eligible for unemployment benefits.  Minn. Stat. § 268.095, subd. 4(1) (2002).  Employment misconduct includes

(1)  any intentional conduct * * * that disregards the standards of behavior that an employer has the right to expect of the employee[;] or

(2)  negligent or indifferent conduct * * * that demonstrates a substantial lack of concern for the employment.


Minn. Stat. § 268.095, subd. 6(a) (2002).

            Whether a former employee is disqualified from receiving unemployment benefits is a mixed question of fact and law.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  The determination of whether the employee committed a particular act is a question of fact.  Colburn v. Pine Portage Madden Bros., Inc., 346 N.W.2d 159, 161 (Minn. 1984).  A determination that a particular act constitutes employment misconduct is a question of law.  Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996).  This court defers to the factual determinations of the commissioner’s representative if they are reasonably supported by evidence in the record, but we exercise independent judgment with respect to questions of law.  Id.

            Christensen argues that his operation of the painting equipment on August 30 did not constitute misconduct because one cannot “visualize” painting flaws until the products are cured in the oven, and he detected and corrected the problem immediately after the items came out of the oven.  This argument is inconsistent with Christensen’s own hearing testimony.  During the hearing a JIT representative asked Christensen whether he “agree[d] that it’s possible to identify surges on paint prior to the parts going into the oven simply by looking at the surface of the [paint] powder?”  Christensen responded, “Yes, it’s possible.”  In light of this admission, Christensen’s acknowledgment that he had successfully completed the same painting project on eight previous occasions, and the evidence that JIT had previously warned Christiansen about his inconsistent work performance, we conclude that Christensen’s conduct on August 30 and in the three previous incidents demonstrated a substantial lack of concern for his employment.

            Christensen also challenges the determination of the commissioner’s representative that his unexcused departure from the workplace on August 25 constituted employment misconduct.  Christensen argues that his early departure should not be considered misconduct because it was “cost effective” because there was no further work for him to do.  An employer has the right to expect its employees to remain at work for their entire shift and not leave without permission.  See Psihos v. R & M Mfg., 352 N.W.2d 849, 850 (Minn. App. 1984) (concluding that unexcused departure before the end of the shift constitutes misconduct).  Inherent in that right is the employer’s authority to determine what constitutes an appropriate reason for ending a shift early.  Because Christensen conceded at the hearing that “standard practice” at JIT was for employees to seek permission before leaving early, and because he does not contend that he had permission to leave, we believe Christensen intentionally ignored standards of behavior that JIT had a right to expect when he ended his shift early without permission.

            This unexcused departure and Christensen’s inconsistent work performance in the operation of the painting equipment following the series of progressive warnings constitutes employment misconduct within the meaning of Minn. Stat. § 268.095, subd. 6(a).