This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
Richard P. Reynolds,
The Star Tribune Co.,
Commissioner of Employment and Economic Development,
Filed March 30, 2004
Department of Employment and Economic Development
File No. 203503
Richard P. Reynolds, 12936 Nicollet Avenue, #301, Burnsville, MN 55337-3530 (pro se relator)
The Star Tribune Co., 425 Portland Avenue, Minneapolis, MN 55488, (respondent)
Lee B. Nelson, Katrina I. Smith, 390 Robert Street North, St. Paul, MN 55101 (respondent Commissioner of Employment and Economic Development)
Considered and decided by Klaphake, Presiding Judge, Randall, Judge, and Harten, Judge.
Relator challenges the commissioner’s representative’s decision that he was disqualified from receiving unemployment benefits for committing misconduct. It was alleged that appellant threatened his supervisor and failed to perform his assigned duties. Relator argues that the evidence is insufficient to support the commissioner’s representative’s findings and claims that he performed his work to the best of his ability. We affirm.
Relator Richard Reynolds was employed by The Star Tribune Company from July 1991 to December 2002 as a mailer trainee. The Star Tribune suspended and later terminated relator, after he and his supervisor had an altercation and after relator failed to perform assigned work duties.
Relator’s job involved, among other things, assembling newspapers as they come off the presses and then bundling them. His job also included ensuring that the machines used to insert advertisement supplements directly into the newspaper did not run out of pre-print and supplements.
In June 2001, the Star Tribune issued its first written warning to relator for taking an unauthorized coffee break and allowing his machine to run out of pre-print and supplements several times. Relator was told to stop reading the paper and pay attention. The letter informed relator that his job was in jeopardy if this behavior continued.
In January 2002, the Star Tribune issued a second written warning, after relator again left his workstation to take an unauthorized coffee break and allowed the machine to run out of supplements. This letter also informed relator that his job was in jeopardy if this behavior continued.
In February 2002, relator took an extra hour for his lunch break without authorization. As a result of relator’s absence, 13 skids that held the supplements for the machines did not have backup supplements. Relator had also brought out the wrong supplements to be used in the machine, and then left work 45 minutes before his shift ended. The Star Tribune issued relator a “Last Chance warning letter” stating that “[a]ny further violations of the Star Tribune Standards of Conduct will result in the termination of your employment with the Star Tribune Company.”
On December 9, 2002, relator again allowed his machine to run out of supplements. Relator’s supervisor, Scott Rubbelke, called relator into the office with the human resources manager and the daytime chairman to warn relator about his allowing his machine to run out of supplements.
The following day, relator allegedly threatened Rubbelke for reprimanding him the previous day. Relator stated that he told Rubbelke that “he was lucky [he] didn’t see him after work yesterday” because he was upset. Rubbelke asked relator to repeat what he said and relator again told him that he was lucky he had not seen him after work the day before. Rubbelke felt threatened and reported this matter to management.
On December 11, 2002, relator was suspended pending investigation, and on December 19, the Star Tribune issued a letter to relator formally terminating him for misconduct.
A department adjudicator determined that relator was terminated for employment misconduct and, therefore, disqualified from receiving unemployment benefits. Relator challenged the decision, and after a hearing, the unemployment law judge concluded that relator was disqualified from receiving benefits. Relator appealed, and on July 7, 2003, the commissioner’s representative affirmed the decision, concluding that relator was discharged for willful misconduct, which included threatening his supervisor and failing to perform his duties. Relator challenges the commissioner’s representative’s decision. We affirm.
We review findings of fact in the light most favorable to the commissioner’s decision and will not disturb them provided there is evidence that reasonably tends to sustain them. Ress v. Abbott N.W. Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989). Whether an employee committed disqualifying misconduct is a mixed question of fact and law. Colburn v. Pine Portage Madden Bros., Inc., 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). 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.
Minn. Stat. § 268.095, subd. 6(a), defines employment misconduct as:
(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.
“[T]o constitute employment misconduct [the employee’s] conduct must (1) be intentional and (2) disregard standards of behavior the employer has a right to expect or the employee’s duties and obligations to employer.” Houston v. Int’l Data Transfer Corp., 645 N.W.2d 144, 149 (Minn. 2002) (interpreting the meaning of employment misconduct under Minn. Stat. § 268.095, subd. 6(a)(1)). Conduct is intentional under the first prong of this two-part test if it is “deliberate” and “not accidental.” Id. Under the second prong, the employee’s intent must be “separate and distinct from the intent to engage in the conduct in question.” Id. at 150. To meet both prongs of the test, the employee must have not only engaged in intentional conduct but also intended to disregard the employer’s standards. Id.
Relator next argues that he did not disregard either the standards of behavior or the assigned duties that the Star Tribune had a right to expect. Specifically, he argues that he performed his job to the best of his ability and that he was not solely responsible for letting the supplements run out because two people were involved in the operation. But the warning letter from the Star Tribune indicates that it was relator’s responsibility, and relator failed to provide any evidence that this assigned duty had shared responsibilities. We conclude the record supports the commissioner’s findings.
Relator also argues that he had no intent to disregard his assigned work duties. The Star Tribune and the commissioner cite several incidents that they claim combine to show that relator deliberately disregarded their standards and policies. Specifically, they point to relator’s three written warnings for failing to perform his expected duties. Relator offered explanations for his behavior as argument that he did not intentionally disregard the employer’s directions. But where an employee’s conduct is deliberate and intentional, a single incident can be sufficient to establish misconduct. Ress, 448 N.W.2d at 524; Auger v. Gillette Co., 303 N.W.2d 255, 257 (Minn. 1981) (finding disqualifying misconduct where two night janitors set an alarm clock, and slept on the job using pillows, cardboard mats and blankets). Also, failing to perform work within assigned duties can constitute misconduct. McGowan, 420 N.W.2d at 595-96; Heilman v. United Dressed Beef Co., 273 N.W.2d 628, 629-30 (Minn. 1978) (finding substantial disregard of the employer’s interests where employees did not trim the ninth rib on sections of meat as their employer required). Here, relator received three written warnings and one verbal warning about his failure to perform his assigned duties. Knowing the policies the employer wished him to follow, appellant apparently chose not to act as expected.
 Because this incident occurred prior to the revisions to the unemployment law statute, we will use the definition in the 2002 version of the statue as defined in Houston.