This opinion will be unpublished and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

A03-1170

 

Edwin J. Hirte,
Relator,

vs.

Tech-Logic Corp.,
Respondent,

Commissioner of Employment and Economic Development,
Respondent.

 

Filed April 20, 2004

Affirmed

Wright, Judge

 

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.

U N P U B L I S H E D  O P I N I O N

 

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.

FACTS

 

Relator Edwin J. Hirte was employed by respondent Tech-Logic Corporation (Tech-Logic) as a project manager from June 5, 2002, through January 23, 2003.  Shortly after Hirte was hired, Hirte was advised to familiarize himself with Tech-Logic’s product line and general procedures.  Hirte declined to attend company training sessions because he believed that he was too busy and he was familiar with the computer programs utilized by Tech-Logic. 

Tech-Logic received complaints from Hirte’s co-workers that he conversed excessively about issues unrelated to work and made negative comments about their compensation.  Hirte’s co-workers complained that Hirte was antagonistic and disruptive.  Two weeks after Hirte began his employment with Tech-Logic, Hirte was orally warned to limit his extraneous conversations with co-workers.  In July 2002, Tech-Logic moved Hirte’s workstation away from his co-workers to address their complaints about Hirte.  In September 2002, Hirte was rated “fair” on his performance review for his cooperation, communication skills, and working relations.  During the performance review, Hirte was advised that co-workers continued to complain about his behavior. 

Tech-Logic also received complaints from clients that Hirte served.  Clients complained that Hirte did not return their phone calls, provided misinformation, and did not deliver drawings or contracts on time.  Two of Hirte’s clients, Oak Park and Farmington Hills, requested that Tech-Logic remove Hirte from their projects.  Oak Park’s request was based on Hirte’s failure to return phone calls, misrepresentations about completing portions of the project, and “very harsh” attitude.  Hirte’s supervisor advised Hirte of Oak Park’s complaints.  Farmington Hills complained that Hirte did not return phone calls, did not complete portions of the project as expected, and was not trustworthy or competent to do the job.  Because Hirte failed to complete portions of the project adequately, Farmington Hills stopped discussing the project with him.  In December 2002, Tech-Logic advised Hirte that his termination was imminent because he was not a “good fit” for the company.  One month later, Tech-Logic received additional complaints about Hirte from another client. 

On January 16, 2003, Hirte was assigned to compile billing information for a client.  Hirte did not compile the information.  When asked again to complete this assignment, Hirte falsely stated that he had sent the information by email.  Rather than providing the information as requested, Hirte later sent an email directing the employee who gave the assignment to compile the information himself.  Tech-Logic discharged Hirte following this incident.  Tech-Logic did not give Hirte a reason for his discharge, but a representative from Tech-Logic testified that Hirte was discharged because of repeated complaints about Hirte from co-workers and clients. 

When Hirte applied for unemployment benefits, he was determined to be disqualified because he was discharged for employment misconduct.  Hirte appealed the disqualification, and an unemployment law judge reversed.  Tech-Logic then appealed the decision to the commissioner’s representative, who concluded that Hirte was discharged for employment misconduct.  This appeal followed. 

D E C I S I O N

Hirte argues that the record does not support the decision of the commissioner’s representative.  We review the findings of the commissioner’s representative rather than those of the unemployment law judge.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  In doing so, we view the findings in the light most favorable to the decision, Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989), giving deference to the credibility determinations made by the commissioner’s representative, Gradine v. Coll. of St. Scholastica, 426 N.W.2d 459, 462-63 (Minn. App. 1988), review denied (Minn. Aug. 24, 1988).  When the evidence reasonably sustains the findings, they will not be disturbed.  Ress, 448 N.W.2d at 523.    

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.”[1]  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. 

When viewed in the light most favorable to the decision of the commissioner’s representative, the record amply supports the determination that Hirte was discharged for employment misconduct. 

            Affirmed.



[1]  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).