This opinion will be unpublished and

may not be cited except as provided by

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






Mary S. Kjenstad,





DecoPac, Inc.,



Commissioner of Employment and Economic Development,



Filed September 7, 2004

Klaphake, Judge


Department of Employment and Economic Development

File No. 17653 03


Mary S. Kjenstad, 3634 Viking Boulevard N.E., Wyoming, MN  55092-9574 (pro se relator)


Jennifer Dellmuth, Dorsey & Whitney, 50 South Sixth Street, Suite 1500, Minneapolis, MN  55402-1498 (for respondent DecoPac, Inc.)


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 Kalitowski, Presiding Judge, Klaphake, Judge, and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N


            Pro se relator Mary S. Kjenstad challenges a decision by a representative of respondent Commissioner of Employment and Economic Development determining that she was discharged from her employment with respondent Decopac, Inc., for employment misconduct after continuing, despite repeated warnings, to direct abusive language and behavior toward her coworkers.  Because the record reasonably supports the decision of the commissioner’s representative, we affirm.


            Our scope of review in unemployment cases is narrow and limited to determining whether the record reasonably supports the decision of the commissioner’s representative.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995); Markel v. City of Circle Pines, 479 N.W.2d 382, 383-84 (Minn. 1992).  An employee who is discharged for employment misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4(1) (Supp. 2003).[1]

            Employment misconduct is defined as “any intentional, negligent, or indifferent conduct . . . (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) (Supp. 2003).  The statutory definition also includes the following exceptions:

            Inefficiency, inadvertence, simple unsatisfactory conduct, a single incident that does not have a significant adverse impact on the employer, conduct an average reasonable employee would have engaged in under the circumstances, poor performance because of inability or incapacity, good faith errors in judgment if judgment was required, or absence because of illness or injury with proper notice to the employer, are not employment misconduct.



            The evidence here shows that under the employer’s rules of conduct, an employee was expected to “[a]bstain from . . . abusive language or behavior” and to “conduct [herself or himself] as a ‘good citizen,’” which included refraining from “[f]ighting or provocations leading to fighting.”  Relator acknowledged receipt of a copy of these rules and that she read the rules and understood that she must comply with them.

            The evidence further shows that relator had a history of unacceptable behavior and that she was warned at least twice prior to the final incident leading to her employment termination.  The first warning was verbal and occurred in March 2003, after relator walked across a floor that a coworker had just cleaned, leaving footprints, after the coworker had asked her not to do so.  Relator’s supervisor found relator’s actions to be “very disrespectful” and made her apologize to the coworker for her actions and behavior.

            The second warning was written and occurred in May 2003, after relator used profanity and engaged in an angry exchange with a coworker.  The written “employee corrective action report” warned relator that “[h]er behavior was not appropriate . . . in the work place,” that “[h]er actions were a serious breach of our rules of conduct,” and that “her use of profanity is unacceptable and will not be tolerated.”  Relator was further warned that “[f]urther incidents will result in action up to and including termination.”

            The final incident occurred in October 2003, when relator used a racial slur against a coworker.  After confirming the incident by interviewing several other coworkers who were in the vicinity at the time, the employer terminated relator’s employment for using profanity in the workplace, despite repeated warnings, and continuing to engage in behavior detrimental to employee morale.

            In general, a knowing violation of an employer’s reasonable policies constitutes misconduct.  See, e.g., Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002); McGowan v. Executive Express Transp. Enters., Inc., 420 N.W.2d 592, 596 (Minn. 1988);  Montgomery v. F & M Marquette Nat’l Bank, 384 N.W.2d 602, 605 (Minn. App. 1986), review denied (Minn. June 13, 1986);  Sandstrom v. Douglas Mach. Corp., 372 N.W.2d 89, 91 (Minn. App. 1985).  A pattern of failing to heed warnings also demonstrates a substantial lack of concern for an employer’s interests.  Gilkeson v. Indus. Parts & Serv., Inc., 383 N.W.2d 448, 452 (Minn. 1986).  Under the facts of this case, we cannot conclude that the commissioner’s representative erred in determining that relator’s conduct constituted employment misconduct.  See Schmidgall, 644 N.W.2d at 804 (stating that issue of whether particular acts constitute misconduct is one of law for this court to review de novo).

            Relator denied making a racial slur against her coworker and denied using profanity, or otherwise offered explanations for each of the incidents for which she received warnings.  The commissioner’s representative found her denials and explanations not credible.  The issue of whether an employee has committed a specific act of misconduct is a question of fact.  Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. 1997).  We defer to the ability of the commissioner’s representative to weigh any conflicting evidence and to make credibility determinations.  Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995).  The record here reasonably supports the findings of the commissioner’s representative.

            On appeal, relator continues to offer explanations for her conduct and to blame her behavior on her coworker.  She claims that she “never had any trouble or any problems” prior to working with this coworker and that “he was trouble from the first day he walk[ed] in.”  Relator further claims in her statement of the case that she was “provoked and harass[ed] by this man . . . to make me use profanity.”  Relator also claims that she complained about her coworker several times, but that nothing was ever done.  The employer’s representative, however, testified at the hearing that relator’s complaints were taken seriously, that the coworker has been under disciplinary action, and that relator was not treated unfairly.  Relator’s attempt to blame her actions on her coworker is disingenuous and without merit.

            We therefore affirm the decision of the commissioner’s representative that relator was discharged for misconduct.



[1] The disqualification statutes were amended effective August 1, 2003.  2003 Minn. Laws 1st Spec. Sess. Ch. 3, art. 2, §§ 13, 20(g); see Minn. Stat. § 645.02 (2002) (providing that laws are effective as of August 1 of the year enacted unless otherwise specified).  This court has held that we will apply the statutory definition in effect at the time an employee was discharged.  Bray v. Dogs & Cats Ltd., 679 N.W.2d 182, 186 (Minn. App. 2004).  We therefore apply the 2003 version of the statute, which was in effect when relator was discharged on October 15, 2003.