This opinion will be unpublished and

may not be cited except as provided by

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







Michele A. McElmury,





Home Depot USA, Inc.,



Commissioner of Employment and

Economic Development,



Filed July 29, 2003


Hudson, Judge


Department of Employment and Economic Development



Michele A. McElmury, 4140 Rice Street, Vadnais Heights, Minnesota 55126 (pro se relator)


Mary L. Setter, 4301 Ewing Avenue South, Minneapolis, Minnesota 55410 (for respondent employer)


Lee B. Nelson, Philip B. Byrne, Minnesota Department of Employment and Economic Development, 390 North Robert Street, St. Paul, Minnesota 55101 (for respondent Commissioner)


            Considered and decided by Willis, Presiding Judge, Klaphake, Judge, and Hudson Judge.

U N P U B L I S H E D   O P I N I O N


            Relator challenges the decision of the commissioner’s representative that she engaged in employment misconduct, disqualifying her from receipt of unemployment benefits.  Because the evidence supports the commissioner’s representative’s decision that relator’s conduct violated the standard the employer had the right to expect, thus constituting employment misconduct, we affirm.


Relator Michelle A. McElmury was employed by Home Depot as a cashier from April 5, 1999, through December 6, 2001.  At the beginning of her employment, relator received and signed a list of job requirements that included, among other things, that she convey a positive image of the company to customers and that she keep a clean and orderly work area.  In her 90-day performance review relator received a “solid performance” rating in two categories.  But by September 1999, relator’s appraisals consistently revealed that she had a low stress level, was defensive and argumentative with customers, and was not respectful of her co-workers and supervisors. 

Relator and her supervisor, Wenona Wines, developed an after-work friendship.  On October 26, 2001, while at Wines’s home, Wines introduced relator to her brother.  According to relator, Wines stated, “You’re free, you and my brother should go out.”  Relator did not go out with Wines’s brother but stated that after this incident, Wines became “more abusive,” “didn’t let [her] do the things that [she] had done the week before.”

In November 2001, relator began to receive a series of written warnings for insubordination and poor job performance.  In particular, the November 13 warning documented relator’s “irate” tone of voice when talking to head cashiers and her refusal to follow their directions.  On November 14, relator received a warning for tardiness.  The November 15 warning indicated that relator threw her garbage can and slammed her till shut.  Relator signed each of these written warnings, leaving blank the section for comments.  On November 29, relator met with the assistant manager and was advised in writing that any further acts of insubordination would result in immediate termination. 

On December 6, 2001, the day of her termination, relator received her final written warning, which cited her for refusing to follow Wines’s direction to clean her work area, and noted that she had made a “scene” in front of customers.  Relator did not sign this warning but wrote “everything is not true * * * ” in the comments section.  The same day, relator applied for unemployment benefits.  The Department of Economic Security denied relator’s application, concluding that relator had engaged in employment misconduct.  Relator appealed this decision, and a hearing was held before an unemployment law judge.

            At the hearing, relator testified that she never argued with any customers, that she never refused to clean her work area, and that new head cashiers were instructing her on how to do things she already knew how to do.  Relator gave various explanations for her tardiness.  Relator also testified that she was upset when she slammed her till shut because the head cashier opened it while she was bending down and she almost hit her head when she stood up.

With respect to the December 6 incident that resulted in her termination, relator testified that when Wines arrived at work that morning, she indicated that there would be a performance audit.  Wines handed relator a towel and instructed her to clean five to six counters, monitor the sensor [detector], and watch for people who walked through the gate with a sensor tag still attached to their merchandise.  While cleaning her work area, relator testified that three customers arrived at her lane, and she sought permission from Wines to service them, but Wines told her to continue cleaning.  According to relator, the customers became upset, so Wines allowed her to service two of the three customers while Wines serviced the third. 

Relator testified that Wines began yelling at her in front of the customers and told her she wanted to speak to relator outside.  Relator testified that because Wines had been abusive and aggressive, and is a foot taller than relator, she was afraid to accompany Wines.  Relator also testified that she attempted to contact a manager but hung up the phone when Wines told her that “if [she] would get a hold of a manager, it would be [her] last day.”  Wines reported this incident to the human resources department at Home Depot, which in turn reported it to the assistant manager.  The assistant manager testified that this incident, along with relator’s history of insubordination to her supervisors, guided his decision to terminate relator. 

The unemployment law judge affirmed the department’s denial of unemployment benefits, concluding that relator was discharged because of employment misconduct.  Relator appealed this decision.  The commissioner’s representative found that on December 6, 2001, relator refused to follow directions from her supervisor and acted inappropriately in front of customers.  The commissioner’s representative also found that relator engaged in intentional conduct that disregarded the standards the employer had a right to expect and concluded that relator was discharged because of employment misconduct and was disqualified from the payment of unemployment benefits.  This appeal followed. 



            On appeal, this court reviews the decision of the commissioner’s representative to determine if the record reasonably supports its decision.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  Decisions of the commissioner’s representative are accorded particular deference.  Id.  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).  The commissioner’s representative’s 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).  The determination of whether those acts are misconduct is a question of law, upon which this court is free to exercise independent judgment.  Ress v. Abbott N.W. 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).  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.


* * * *


(e) The definition of employment misconduct provided by this subdivision shall be exclusive.


Minn. Stat. § 268.095, subd. 6 (2002); Houston v. Int’l Data Transfer Corp., 645 N.W.2d 144, 149 (Minn. 2002). 

            Relator argues that the record does not support the commissioner’s representative’s findings that she yelled at a co-worker on November 13, that she intended to arrive late to work on November 14, or that she became upset with her supervisor on November 15.  Relator further contends that her refusal to go outside at the request of her supervisor on December 6 was not unreasonable and therefore did not constitute misconduct. 

The record, however, contains written documentation that on November 13 relator responded to the head cashier in an “irate voice” that she “didn’t need to be told what to do” when she was directed to clean her work area and count her till.  Relator argues that there is nothing in the “transcript” of the hearing indicating that she yelled at a co-worker and contends that the “transcript” only supports a finding that she allegedly did not clean up her work area that day.  But the transcript is not the only evidence available for consideration by the commissioner’s representative; the evidence also includes the written warnings.  As previously stated, the record contains a written warning documenting that relator argued with her supervisor.  The warning also advised relator that such behavior would not be tolerated. 

Relator also claims that she was not given an opportunity to rebut the allegation that she yelled at a co-worker on November 13.  But the evidence shows that prior to the hearing, relator was provided with copies of the documentary evidence that would be presented.  Furthermore, at the time of the incident, when given an opportunity to do so in the comments section of the warning form, relator did not deny that she had spoken inappropriately to her supervisor.  We conclude that the evidence reasonably supports the commissioner’s representative’s finding that relator yelled at a co-worker on November 13.

Next, relator argues that her tardiness on November 14 was presented as an act of insubordination, but no evidence was presented that she intended to arrive at work late.  We disagree.  Intentional conduct “must be deliberate and not accidental.”  Houston, 645 N.W.2d at 149.  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.


Here, the record indicates that at the hearing, relator gave several explanations for her tardiness.  First, relator testified she was tardy because she “had the days mixed up with a different day.”  Second, relator testified that because of her “up and down schedule,” she incorrectly thought her start time was at 9:00 a.m.  Third, relator testified she was tardy because she was unable to confirm with management her correct start time.  But relator gave no explanation for her tardiness on the written warning she received after the occurrence.  Moreover, relator did not take advantage of the opportunity at the time of the incident to offer any explanation for her tardiness.  Upon review of the record, we find no indication that relator had any problems with ascertaining her start time or timely reporting to work prior to this date.  We also note that relator’s tardiness occurred on the day after she received a written warning for arguing with her supervisor. 

Because relator gave various excuses for her tardiness, failed to give any explanation for her tardiness on the written warning at the time of its occurrence, and perhaps most tellingly, because relator’s tardiness occurred a day after she received a written reprimand for arguing with her supervisor, we are persuaded that the evidence supports a finding that relator’s tardiness was not accidental, but rather intentional conduct intended to ignore her duty and obligation to Home Depot to report to work on time. 

Relator next argues that the record does not support a finding that she was upset with her supervisor on November 15.  Again, we disagree.  Relator admitted at the hearing that she “took [her] garbage bag and I kind of like put it in the basket a little harder than I normally did.” This was done in response to what relator perceived as a deliberate attempt by her supervisor to cause her bodily harm by leaving relator’s till open while relator was in a bent position.  This incident is documented in a written warning where again relator made no effort to refute the accusation.  In any event, relator’s own testimony easily supports a finding that relator was upset with her supervisor. 

Relator argues further that even if she did throw something into the garbage can, this action does not show intent to disregard the substantial interests of the employer, nor would it intentionally violate any policies known to the employee.  We disagree.  An employer has a right to expect that an employee maintain a professional attitude while in the presence of the employer’s customers and to treat fellow co-workers with respect.  Home Depot’s list of job requirements, of which the record indicates relator was given a copy, require that relator maintain a professional attitude while with customers and that she be able to take direction from several management-level employees.  Relator may have believed that her supervisor disregarded her safety by leaving the till open, causing her to nearly bump her head, but by responding in an unprofessional manner, relator intentionally engaged in conduct that fell below the standard that the employer had a right to expect. 

Lastly, we consider the events leading to relator’s termination.  Relator argues that her refusal to honor her supervisor’s request on December 6 to go outside cannot be considered misconduct because the request was unreasonable, given the cold weather and the fact that relator did not have her coat with her.  Relator cites many cases for the proposition that it is the refusal to follow a reasonable request that constitutes misconduct.[1]  But the case law relator cites is irrelevant in determining whether relator’s actions on December 6 constitute employment misconduct.  The commissioner’s representative found that on December 6 relator refused to follow directions from her supervisor and acted inappropriately in front of customers.  Relator seems to believe that the “direction” that the commissioner’s representative is referring to is relator’s refusal to follow Wines outside and argues extensively that her refusal cannot constitute employment misconduct because Wines’s request to go outside was unreasonable.  But the written warning for this incident states relator refused “FES [front end supervisor] direction” when asked to clean up and then made a “scene” in front of customers. 

Standing alone, relator’s refusal to follow Wines outside into the cold without a coat cannot constitute employment misconduct because Home Depot had no right to expect that relator would comply with such a request.  But relator’s refusal to clean her area when directed by Wines and the behavior relator exhibited in front of customers are unquestionably employment misconduct.  Moreover, relator’s conduct on this day is consistent with her behavior as documented in prior written warnings.  The record is replete with documentation of relator’s rudeness to customers and her disrespect of co-workers. 

Relator provides many explanations for the accusations made against her in the written warnings.  But these explanations merely repeat her testimony at the hearing.  Relator invites this court to retry the facts and accept her version of events over that of the assistant manager and the documented evidence.  But we must defer to the commissioner’s representative’s credibility determinations and view his findings in the light most favorable to his decision.  See Schmidgall, 644 N.W.2d at 804; Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995).

We conclude that the record amply supports a finding that relator refused direction from her supervisor on December 6 and acted inappropriately in front of customers, and such behavior disregarded the standards of behavior that Home Depot had a right to expect.  Accordingly, we conclude that relator’s behavior on November 13, 14, 15, and December 6 constituted employment misconduct.

Finally, relator’s argument that the last straw doctrine does not support her disqualification for unemployment benefits is misplaced.  Under the last straw doctrine, “behavior unrelated in time or tenor may, as a whole, support a determination of misconduct.”  Barstow v. Honeywell, Inc., 396 N.W.2d 714, 716 (Minn. App. 1986) (citations omitted).  First, Home Depot has not argued that the “last straw” doctrine supports relator’s disqualification for unemployment benefits.  Second, the last straw doctrine predates the more recent legislative statutory definition of misconduct and is inapplicable to our review of this case.  Third, even if we were to conclude that the doctrine is applicable, relator’s behavior is related in time because the incidents of misconduct occurred within days of each other.  Furthermore, relator’s behavior is related in tenor because the incidents of misconduct consist of virtually the same kind of behavior:  relator was argumentative with supervisors, refused to follow their instructions, and behaved inappropriately with customers. 

The commissioner’s representative correctly concluded that relator’s behavior constituted employment misconduct pursuant to Minn. Stat. § 268.095, subd. 6, disqualifying relator from receiving unemployment benefits.


At the hearing before the unemployment law judge, relator’s attorney attempted to argue that relator could have quit because of alleged sexual harassment she experienced from Wines after relator refused to date Wines’s brother.  Therefore, relator argues, her discharge was a “constructive quit.”[2]  But under questioning by the unemployment law judge, relator’s attorney admitted that relator “did not in fact quit,” and the hearing proceeded on the theory that relator had been discharged.  As a result, the unemployment law judge did not allow relator to testify that she had good cause to quit because of sexual harassment.

We need not consider whether the denial of testimony on this issue was proper because relator did not quit—she was discharged.  Even if we were to conclude that this testimony should have been admitted, relator’s claim would still fail because relator never reported the sexual harassment to Home Depot.  Under Minn. Stat. § 268.095, subd. 3(e) (2002), an employee must first inform the employer of the harassment as a prerequisite to a claim of sexual harassment.  An employee subjected to harassment has the burden of demonstrating that he gave his employer notice of the harassment, but the employer failed to take timely and appropriate action.  Biegner v. Bloomington Chrysler/Plymouth, Inc., 426 N.W.2d 483, 486 (Minn. App. 1988).  Here, the assistant manager of Home Depot testified that at no time did relator ever complain to him about being sexually harassed.  Indeed, there is no evidence in the record that relator ever complained to anyone at Home Depot about the alleged sexual harassment. 

The commissioner’s representative’s decision that relator committed employment misconduct is reasonably supported by the evidence in the record.


[1] See Reed v. Minnesota Dept. of Transp,, 422 N.W.2d 537, 540 (Minn. App. 1988), review denied (Minn. June 29, 1988); Sandstrom v. Douglas Mach. Corp., 372 N.W.2d 89, 91 (Minn. App. 1985); and Snodgrass v. Oxford Props., Inc., 354 N.W.2d 79, 80 (Minn. App. 1984).


[2] It is unclear what relator means by “constructive quit.”  The previous “constructive voluntary quit rule” related to employers terminating employees who did not meet performance standards agreed on at the start of employment; but the rule was legislatively overruled by the language in Minn. Stat. §  268.09, subd. 1(a) (1992).  Relator also briefly mentions the term “constructive discharge.”  A “constructive discharge” occurs when the employer creates intolerable working conditions with the intention of forcing the employee to quit.  Diez v. Minn. Mining & Mfg., 564 N.W.2d 575, 579 (Minn. App. 1997), review denied (Minn. Aug. 21, 1997).  Neither rule is applicable here.