This opinion will be unpublished and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
Carolyn D. Reuben,
County of Hennepin,
Commissioner of Employment and Economic Development,
Filed April 13, 2004
Department of Employment and Economic Development
File No. 5162 03
Carolyn D. Reuben, 4352 5th Avenue South, Minneapolis, MN 55409 (pro se relator)
Amy Klobuchar, Hennepin County Attorney, Martin D. Munic, Assistant County Attorney, A-2000 Government Center, 300 South 6th Street, Minneapolis, MN 55487 (for respondent County of Hennepin)
Lee B. Nelson, M. Kate Chaffee, Minnesota Department of Employment and Economic Development, 390 Robert Street North, St. Paul, MN 55101 (for respondent commissioner)
Considered and decided by Halbrooks, Presiding Judge, Willis, Judge, and Huspeni, Judge.*
Relator challenges the commissioner’s representative’s decision that she was discharged from her position as a human-services representative for misconduct and is, therefore, disqualified from receiving unemployment benefits. Because the record contains sufficient evidence to support the commissioner’s representative’s conclusion, we affirm.
Relator Carolyn Reuben worked as a full-time human-services representative for Hennepin County from March 4, 1986 through February 7, 2003. The record indicates that, after relator was transferred to a new supervisor by random assignment in September 2002, she was disciplined on several occasions. On October 18, 2002, relator received an oral warning for her rude and intimidating conduct toward clients, coworkers, and outside agencies that was prompted by complaints from clients and coworkers, as well as by her supervisor’s observations. Relator was warned that “[i]mmediate improvement is needed or further disciplinary action will be taken.”
On October 23, 2002, relator received a two-day unpaid suspension for her continued inappropriate and threatening behavior. Three incidents precipitated the suspension. On October 22, relator confronted her supervisor in a negative and condescending tone in the presence of a new employee. Later that day, relator became argumentative with her supervisor while discussing work assignments. The next day, relator requested a team meeting to discuss work problems. Relator was told that she could call a meeting, but that her supervisor could not attend because she already had a meeting scheduled for that morning. According to the supervisor, relator then hit the wall with her hand as she was leaving the supervisor’s office, in violation of Hennepin County’s workplace violence policy. Relator contends that after returning to her desk, she slammed her hand on the partition wall of her cubicle out of frustration. Relator was warned that “continued incidents of this nature or a similar nature will result in additional, more serious disciplinary action up to and including termination.” Shortly thereafter, relator went on FMLA leave to deal with stress-related issues.
After returning from FMLA leave, on December 9, 2002, relator received a five-day unpaid suspension for her continued inappropriate behavior. Four incidents led to this suspension. On November 14, relator questioned her supervisor’s authority and refused to accept a direct assignment at a team meeting. On November 15, relator’s supervisor directed her to enroll in a conflict-resolution course, but relator questioned the supervisor’s authority to make the training mandatory. Relator then delayed her registration for the training, and the course was full by the time she attempted to enroll. On December 2, relator was “defiant, insubordinate and disrespectful,” and also questioned her supervisor’s authority and was “uncooperative.” On December 3, relator “inappropriately focused on a delay in seeing a drop-in client” and was “accusatory and unwilling to accept personal responsibility” for the situation. According to relator’s supervisor, relator’s reaction when confronted made it impossible to resolve the situation. Relator was told that her “continued willful misconduct [was] detrimental to the team” and that such behavior was “inappropriate and will not be tolerated.” Relator was also warned that “further incidents of this nature or a similar nature will result in termination.”
On January 6, 2003, relator was issued a performance improvement plan. The plan outlined the following expectations, among others:
· [Relator] must work in harmony with her team members, supervisor, and with her customers.
· [Relator] . . . must treat her team members, her supervisor and customers in a respectful manner.
. . . .
· Behaviors that must be avoided include: sarcasm, negative tone of voice, threatening or angry demeanor that may be noticed by body language such as raising her arms in the air, turning her chair away from others, beating her fist against walls, failing to do the job duty asked of and expected of her. Even one instance of this will result in termination.
· [Relator] needs to demonstrate flexibility and resiliency in her interactions with team members, supervisor, and customers. She needs to recognize her responsibility and accountability for outcomes in her interactions with others.
Relator claims the performance plan was issued due to her supervisor’s personal vendetta against her, but relator had also been placed on performance plans by two other former supervisors.
Despite these warnings, on January 29, 2003, relator “refused some work assignments” during a team meeting and “was only willing to serve as the team’s contact person and process an addendum.” Hennepin County determined this to be “in violation of the expectations outlined to [relator] for performance and in violation of the expectations for the job.” Later that day, relator also raised her voice and acted in an inappropriate and defiant manner while interacting with coworkers. This behavior was “very disruptive and negatively impacted the team’s ability to complete their work assignments.” The next day, Hennepin County informed relator that her actions between October 2002 and January 2003 were in clear violation of Hennepin County’s human resources rule 16.3g, which prohibits an employee from engaging in conduct that reflects negatively on the County, including “harassment; verbal, written or physical threats to . . . another person; . . . insubordination; [and] the verbal, written or physical abuse of an individual seeking service or assistance from the County.” Relator was discharged effective February 7, 2003.
Relator subsequently established a benefits account with the Department of Employment and Economic Development, but a department adjudicator determined that she was discharged for misconduct and was, therefore, disqualified from receiving unemployment benefits. Relator appealed to an unemployment law judge, who affirmed. Relator then appealed to the commissioner’s representative, who also affirmed, concluding that
[d]espite receiving numerous warnings, being suspended twice and placed on a performance improvement plan because of her behavior, [relator] continued to behave inappropriately, to disrupt the workplace and to be insubordinate. While a [coworker] may have been partially culpable when the final incident occurred, the fact remained the [relator’s] actions during the incident were inappropriate. We are fully persuaded [that relator’s] conduct evinced an intentional disregard of the standards of behavior the employer has the right to expect and lack of concern for her employment.
This appeal follows.
On appeal, we accord particular deference to the decision of the commissioner’s representative. Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995). The determination that an employee is disqualified for misconduct involves 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 specific act or acts alleged to be misconduct is a fact question.” Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997). We review the commissioner’s representative’s factual findings in the light most favorable to the decision and will not disturb them if the record reasonably tends to sustain them. Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996). But whether an employee’s acts constitute misconduct is a question of law, which we review de novo. Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989). This court defers to the commissioner’s representative’s ability to weigh the evidence and to make credibility determinations. Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995); Gradine v. College of St. Scholastica, 426 N.W.2d 459, 462 (Minn. App. 1988), review denied (Minn. Aug. 24, 1988).
Here, the commissioner’s representative found that between October 2002 and January 2003, relator (1) received a verbal warning about inappropriate conduct, (2) was suspended twice for continued behavioral problems, including violation of the workplace violence policy, (3) received a performance-improvement plan outlining the employer’s expectations, and (4) after receiving the performance plan, refused work assignments and disrupted the workplace by raising her voice and acting in a defiant manner with a coworker. The record amply supports these findings. There is no dispute that relator was disciplined numerous times for inappropriate behavior in the workplace; the incidents are well documented in the record. Although relator attempts to explain the circumstances surrounding her behavior in an attempt to minimize the incidents, her admissions nonetheless support the documented evidence. Therefore, we conclude that the record supports the commissioner’s representative’s finding that relator committed the acts alleged to be misconduct.
We also conclude that the record supports the commissioner’s representative’s conclusion that relator’s conduct constitutes employment misconduct as a matter of law. An employee who is discharged for misconduct is disqualified from receiving unemployment-compensation benefits. Minn. Stat. § 268.095, subd. 4(1) (2002). Minnesota law defines employment misconduct as follows:
(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.
Minn. Stat. § 268.095, subd. 6(a) (2002).
The Minnesota Supreme Court has articulated a two-prong test to determine whether an employee’s actions constitute employment misconduct under Minn. Stat. § 268.095, subd. 6(a)(1). Houston v. Int’l Data Transfer Corp., 645 N.W.2d 144, 149 (Minn. 2002). 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 the employer.” Id. Under the first prong, intentional conduct requires a “deliberate” act that is “not accidental.” Id. Under the second prong, the term “disregard” includes “intent that is separate and distinct from the intent to engage in the conduct in question.” Id. at 150. Therefore, to satisfy the Houston test, the employee must have “not only engaged in intentional conduct,” but must have also 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.
Here, relator’s conduct satisfies both requirements. Under the first prong, the evidence shows that relator’s conduct was intentional not accidental. Relator admits to hitting a partition wall out of frustration and other insubordinate and inappropriate acts, but asserts that she was reacting to an inequitable work environment. This evidence is alone sufficient to satisfy the first prong of the Houston test.
Under the second prong, the evidence demonstrates that relator intended to disregard the standards of behavior her employer had a right to expect. In determining an employer’s standards of behavior, this court looks to the “employer’s policies, rules, or reasonable requests.” Montgomery v. F & M Marquette Nat’l Bank, 384 N.W.2d 602, 604 (Minn. App. 1986), review denied (Minn. June 13, 1986). An employee commits misconduct when she intentionally violates a reasonable policy or fails to follow an employer’s directive or warning. Schmidgall v. Filmtec Corp., 644 N.W.2d 801, 806 (Minn. 2002). Behavior that is “aggressive and offensive with customers,” or “erratic and disruptive” also qualifies as misconduct. Pitzel v. Packaged Furniture & Carpet, 362 N.W.2d 357, 357-58 (Minn. App. 1985). Misconduct has also been found where an employee is rude or insubordinate, Montgomery, 384 N.W.2d at 603, and where the employee intentionally refuses to perform a task. Bibeau v. Resistance Tech., Inc., 411 N.W.2d 29, 32 (Minn. App. 1987). An employer also has a right to expect nonviolent behavior from its employees. Shell v. Host Int’l, 513 N.W.2d 15, 17 (Minn. App. 1994).
Hennepin County’s standards were both reasonable and known by relator. In a period of just over a year, relator received progressive discipline for her inappropriate conduct, including a warning, two suspensions, and a performance plan. Nonetheless, relator continued to act in an insubordinate and inappropriate manner with her supervisor and coworkers. Relator’s actions were disruptive in the workplace and in direct violation of the employer’s known requests. Most recently, her actions violated Hennepin County policy and were contrary to a performance plan issued only three weeks earlier. Therefore, because relator deliberately disregarded Hennepin County’s directive on appropriate conduct in the workplace on numerous occasions, we conclude that her conduct constitutes misconduct as a matter of law.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 Hennepin County’s workplace violence policy provides that “[v]iolence, or the threat of violence, by or against any employee of Hennepin County or other person while at a Hennepin County workplace is unacceptable and may subject the individual to serious disciplinary action . . . .” Violence is defined as “[a]ny act or instance of intentional physical harm or the threat of physical harm.”
 Because relator was discharged prior to August 1, 2003, we reject respondent commissioner’s argument that the 2003 definition of employment misconduct could apply.
 Relator claims that she was terminated due to 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) (quotation omitted). Because the record is clear that relator did not quit, but rather her employment was terminated, we do not address appellant’s constructive discharge argument.