This opinion will be unpublished and

may not be cited except as provided by

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






Jodell F. Thorsett,





Tewksbury, Kerfeld, Zimmer, P.A.,



Commissioner of Employment and Economic Development,



Filed July 27, 2004

Affirmed; motion granted

Halbrooks, Judge



Department of Employment and Economic Development

File No. 10452 03



Jodell F. Thorsett, 7328 Ontario Boulevard, Eden Prairie, MN 55346-3832 (pro se relator)


Tewksbury, Kerfeld, Zimmer, P.A., 88 South 10th Street, Suite 300, Minneapolis, MN 55403 (respondent)


Lee B. Nelson, Linda A. Holmes, 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, Harten, Judge, and Minge, Judge.

U N P U B L I S H E D   O P I N I O N


Relator Jodell F. Thorsett challenges the decision by the commissioner’s representative that she was discharged for employment misconduct and therefore is not qualified to receive unemployment-compensation benefits.  Respondent Commissioner of Employment and Economic Development filed a motion requesting this court to strike as outside the record various materials submitted on appeal by relator.  We affirm the decision of the commissioner’s representative and grant respondent commissioner’s motion.


            Relator was employed as a legal assistant by respondent Tewksbury, Kerfeld, Zimmer, P.A. (employer) from September 3, 2002 until June 13, 2003.  At a January 6, 2003 meeting, the employer’s office manager informed relator of several concerns with her job performance.  At a January 20 meeting, the employer placed relator on probation with the understanding that her performance and employment status would be reviewed in 45 days.  At meetings in March and April, the office manager discussed with relator her ongoing performance problems.  On June 9, when her performance showed no sign of improving, relator was discharged. 

A Department of Employment and Economic Development (department) adjudicator determined that relator was qualified to receive unemployment benefits.  When employer appealed, relator did not appear at the scheduled evidentiary hearing before the unemployment law judge (ULJ).  The ULJ concluded that relator was discharged for employment misconduct and was, therefore, disqualified from receiving benefits.  Relator appealed that decision to the department, and the commissioner’s representative concluded that relator was discharged for employment misconduct and was disqualified from receiving benefits.  Relator challenged the decision by writ of certiorari to this court.

In her filings to this court on appeal, relator included an appendix to her reply brief and a supplemental record that together totaled more than 100 pages and included an autobiographical affidavit, her medical records, medical information concerning her son, items she alleges belonged in her personnel file, and e-mail exchanged between herself and her office manager; in her reply brief, she discussed events not otherwise referred to in the record.  None of the material in the supplemental records had been previously submitted to or considered by the department.  The Commissioner of Employment and Economic Development (commissioner) moved this court to strike as outside the record on appeal the appendix to relator’s reply brief, the supplemental record, and portions of relator’s reply brief.  A special term panel referred the motion to strike to this panel.


            We afford decisions of the commissioner’s representative “particular deference,” Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995), review the factual findings of the commissioner’s representative in a light most favorable to the decision, and will generally not disturb those findings where they are reasonably supported by the evidence.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).

An employee discharged for misconduct is disqualified from receiving unemployment benefits.  Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  Whether an employee committed a specific act of misconduct is a question of fact.  Id.  Whether an employee committed misconduct that disqualifies a person from eligibility for unemployment benefits is a mixed question of law and fact.  Colburn v. Pine Portage Madden Bros., Inc., 346 N.W.2d 159, 161 (Minn. 1984).  Whether a specific act constitutes misconduct is a question of law reviewed de novo.  Schmidgall, 644 N.W.2d at 804.  Generally, an employee commits misconduct by refusing to comply with an employer’s reasonable requests and/or policies.  See McGowan v. Executive Express Transp. Enters., Inc., 420 N.W.2d 592, 596 (Minn. 1988).

The statutory definition of disqualifying employment misconduct is “any intentional, negligent, or indifferent conduct, on the job or off the job (1) that evinces a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee, or (2) that demonstrates a substantial lack of concern for the employment.”  Minn. Stat. § 268.095, subd. 6(a) (2002) (as amended by 2003 Minn. Laws 1st Spec. Sess. ch. 3, art. 2, § 13).  To constitute employment misconduct under Minn. Stat. § 268.095, subd. 6(a)(1), an 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.”  Houston v. Int’l Data Transfer Corp., 645 N.W.2d 144, 149 (Minn. 2002). 

Here, the commissioner’s representative found that relator was given several warnings concerning her unacceptable behavior at work, told what the employer expected of her, and placed on probation prior to termination.  The commissioner’s representative concluded that relator’s unexplained absenteeism, poor communication with co-workers and clients, and missed deadlines “evinced a serious violation of the standards of behavior [respondent employer] had a right to reasonably expect” and therefore constituted misconduct. 

Relator’s argument in opposition to this conclusion is that it is without evidentiary support because she did not intentionally neglect or show a substantial lack of concern for her employment.  Rather than referring to record evidence in support of her position, relator challenges the credibility of testimony and other evidence considered by the commissioner’s representative.  But this court defers to the commissioner’s representative’s credibility determinations.  See Jenson v. Dep’t of Econ. Sec., 617 N.W.2d 627, 631 (Minn. App. 2000), review denied (Minn. Dec. 20, 2000).  And here, the record demonstrates that relator repeatedly, and voluntarily, failed to comply with her employer’s requests, directives, and policies.  The commissioner’s representative did not err in concluding that relator committed employment misconduct.

We also disagree with relator’s contention that the matter should be remanded for another hearing before the commissioner’s representative because she did not intentionally miss the previously scheduled hearing.  Relator does not claim that she did not receive notice of the hearing or that the notice she received was defective; she concedes that she simply forgot to attend the meeting.  She has not asserted a legitimate ground for remand.

Respondent commissioner filed a motion with this court to strike supplemental materials submitted by relator on appeal as well as a portion of relator’s reply brief that makes reference to events outside the record.  Minn. R. Civ. App. P. 110.01 provides that “[t]he papers filed in the trial court, the exhibits, and the transcript of the proceedings, if any, shall constitute the record on appeal in all cases.”  The supplemental materials are exclusively intended to explain relator’s failure to appear at the evidentiary hearing by reference to her history of psychological problems.  None of the supplemental materials to which the commissioner objects were offered into evidence at the hearing before the ULJ or submitted to the commissioner’s representative.  Because the materials are outside the record, we grant the commissioner’s motion.

            Affirmed; motion granted.