This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
Edwin J. Hirte,
Commissioner of Employment and Economic Development,
Department of Employment and Economic Development
File No. 4180 03
Edwin J. Hirte, 1573 Atlantic Street, St. Paul, MN 55106 (pro se relator)
Tech-Logic Corp., 1818 Burkle Road, White Bear Lake, MN 55110-5245 (respondent)
Lee B. Nelson, Philip B. Byrne, Minnesota Department of Employment and Economic Development, 390 Robert Street North, St. Paul, MN 55101 (for respondent Commissioner)
Considered and decided by Schumacher, Presiding Judge; Willis, Judge; and Wright, Judge.
Relator appeals the decision of the Minnesota Department of Employment and Economic Development that he was discharged for employment misconduct and, therefore, is disqualified from receiving unemployment benefits. We affirm.
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 the employee committed a particular act is a question of fact. Scheunemann v. Radisson South Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997). Whether the act constitutes employment misconduct is a question of law, which we review de novo. Ress, 448 N.W.2d at 523.
An employee who is discharged for employment misconduct is disqualified from receiving unemployment benefits. Minn. Stat. § 268.095, subd. 4(1) (2002). Employment misconduct is defined as “(1) any intentional conduct . . . that disregards the standards of behavior that an employer has the right to expect of the employee or [that] 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.” Minn. Stat. § 268.095, subd. 6(a) (2002). “[I]nefficiency, inadvertence, simple unsatisfactory conduct, [and] poor performance because of inability or incapacity . . . are not employment misconduct.” Minn. Stat. § 268.095, subds. 6(a), (b) (2002).
In support of its determination that Hirte was discharged for intentional employment misconduct, the commissioner’s representative found that Hirte (1) ignored warnings about being disruptive in the workplace, (2) was dishonest with Tech-Logic and his clients, and (3) did not comply with his employer’s reasonable instructions. The commissioner’s representative concluded that these actions evinced Hirte’s intent to ignore the standards of behavior that Tech-Logic had a right to expect of him.
We apply a two-pronged test to determine whether an employee’s actions constitute intentional “employment misconduct.” 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. A pattern of failing to follow procedures and ignoring directions demonstrates a substantial lack of concern for the employer’s interests. See Gilkeson v. Indus. Parts Serv., Inc., 383 N.W.2d 448, 452 (Minn. App. 1986); Jones v. Rosemount, Inc., 361 N.W.2d 118, 120 (Minn. App. 1985) (citing “chronic and excessive” absenteeism as evidence of an employee’s lack of concern).
Under the first prong of the test, we consider whether Hirte’s conduct was intentional. Houston, 645 N.W.2d at 149. To satisfy the Houston standard, the conduct in question must be “deliberate” and “not accidental.” Id. Hirte does not dispute that he intended to engage in the conduct. Rather, Hirte asserts that he was unable to complete the tasks requested by Tech-Logic and his clients, and he argues that he was not warned that his behavior was a problem. Hirte contends that a shortage of computers prevented him from completing his assignment in June. But a Tech-Logic representative testified that Hirte had everything he needed to finish the assignment and that computers were available for Hirte’s use. Hirte also asserts that he was unable to complete the billing compilation assignment in January 2003 because he was not able to access the company’s database. The representative from Tech-Logic acknowledged frequent database problems but testified that a hard copy of the information was available to Hirte in the client file. Thus, Hirte could have compiled the information as he was assigned, rather than directing his co-worker to complete the assignment. Hirte does not claim that his actions were inadvertent. And the record refutes Hirte’s assertions and supports the finding of the commissioner’s representative that Hirte acted intentionally.
The second prong of the test requires an analysis of the employee’s intent that is “separate and distinct” from the intentional conduct required in the first prong. Id. at 150. The commissioner’s representative concluded that Hirte’s intentional disregard for Tech-Logic’s standards of behavior was evinced by Hirte’s repeated failure to heed warnings and to comply with requests to complete specific tasks. An employee’s deliberate action in contravention of an employer’s warning constitutes employment misconduct. See Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 806 (Minn. 2002) (failure to report injury during same shift after having been counseled and given two written warnings by employer). The record establishes that Tech-Logic continued to receive complaints from employees about Hirte after he had been warned that his excessive conversations with co-workers and comments about their compensation were disruptive. Tech-Logic even moved Hirte’s workstation in response to these complaints. Hirte’s supervisor warned Hirte again at his performance review that he needed to improve his level of cooperation, communication skills, and working relations. Hirte was specifically warned that clients were complaining about his conduct. Even after Hirte was warned that his termination was imminent, complaints from the clients he served continued.
The record also supports the finding of the commissioner’s representative that Hirte did not comply with the reasonable requests of his employer. Generally, if an employer’s request is reasonable and does not impose an unreasonable burden, refusal to comply with the request constitutes employment misconduct. Sandstrom v. Douglas Mach. Corp., 372 N.W.2d 89, 91 (Minn. App. 1985). When Hirte was directed to familiarize himself with Tech-Logic’s product and procedures, he declined to attend the training sessions. When Hirte received an assignment to complete drawings during his supervisor’s absence, he failed to do so. When Hirte’s supervisor directed Hirte to stop conversing with other employees and be more productive, Hirte’s conduct continued to generate complaints from his co-workers. Likewise, Hirte’s assignment to prepare an itemized bill for a client was a reasonable request that Hirte failed to perform.
 The definition of employment misconduct was amended by the legislature, effective August 1, 2003. 2003 Minn. Laws 1st Spec. Sess. ch. 3, art. 2, §§ 13, 20(g); see Minn. Stat. § 645.02 (2002). The amended definition provides that employment misconduct is any intentional, negligent, or indifferent conduct that evinces a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee or that demonstrates a substantial lack of concern for the employment. Minn. Stat. § 268.095, subd. 6(a) (Supp. 2003). The events leading to Hirte’s discharge and the decision of the commissioner’s representative occurred prior to the effective date for the new definition of misconduct. We, therefore, review the record using the definition of employment misconduct in effect at the time of the conduct. See Chapman v. Davis, 233 Minn. 62, 65-66, 45 N.W.2d 822, 824 (1951) (holding that no law shall be construed to apply retroactively unless “clearly and manifestly” intended); In re Wage & Hour Violations of Holly Inn, Inc., 386 N.W.2d 305, 312 (Minn. App. 1986) (concluding that the new provisions of an amended statute must be construed as effective only from the date when the amendment became effective and not retroactively unless specifically prescribed).