This opinion will be unpublished and

may not be cited except as provided by

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






Mack Cunningham, Jr.,


Family & Children’s Service,
Commissioner of Employment and Economic Development,


Filed November 9, 2004


Stoneburner, Judge


Department of Employment and Economic Development

File No. 12732 03


William J. Mateikis, The Mateikis Law Firm, 3204 Dupont Avenue South, Minneapolis, MN 55408 (for relator)


Family & Children’s Service, 414 South Eighth Street, Minneapolis, MN 55404-1025 (respondent employer)


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 Wright, Presiding Judge; Peterson, Judge; and Stoneburner, Judge.

U N P U B L I S H E D  O P I N I O N




            Relator challenges the decision of respondent Commissioner of Employment and Economic Development denying his request for a new hearing and concluding that relator was discharged from employment because of misconduct.  We affirm.



            Relator was employed by Family & Children’s Service as a community organizer from January 8, 2001 to July 17, 2003.  His employment was terminated as a result of two exchanges he had with his direct supervisor, Jennifer Blevins.  In the first exchange, relator confronted Blevins about what he considered to be her inappropriate manner of speaking to him.  Blevins testified that relator stood over her about two feet from where she sat in her office chair, pointed his finger at her and said: “Don’t you ever talk to me like that again, I mean never, I never want to hear you talk to me in that tone, not you or anybody will ever talk to me like that.  You got that?  I mean never.  You got that?”  Blevins testified that she felt frightened, threatened, and “shaken” by the exchange.  In a meeting that occurred about seven days after this incident, Blevins sought confirmation from relator that he would not act in that manner again.  According to Blevins, relator stated that such behavior would happen again because no one could talk to him in a disrespectful way or in a tone that he did not like.  Relator also stated that if Blevins thought his previous behavior was threatening, she had not seen anything because he “could do a lot more.”  Blevins then terminated relator’s employment.

            Relator testified to a different version of the exchanges.  He denied yelling at, approaching, pointing at, or standing over Blevins during the first exchange.  He testified that Blevins had yelled at him, and he told her that he deserved respect and that she should not talk to him in such a strong tone.  Relator testified that during the second incident, when Blevins criticized his earlier behavior, he told her that she was racist.  Relator’s testimony included many references to Blevins’s alleged racist behavior toward him, which he does not repeat in his argument on appeal. 

            The commissioner’s representative found that relator “engaged in threatening behavior towards his supervisor” during the first exchange, and relator again threatened the supervisor when she discussed the incident with him later.[1]

            Relator also claimed that he did not receive a fair and impartial hearing because he was precluded from introducing evidence about his subjective intent during the exchanges.  The commissioner’s representative found that relator had a full and fair opportunity to present whatever relevant evidence he wanted to present and a remand for further hearing was not warranted.  This appeal by writ of certiorari followed.



            “We review the commissioner’s [representative’s] factual findings in the light most favorable to the commissioner’s [representative’s] decision and will not disturb them as long as there is evidence that reasonably tends to sustain those findings.”  Schmidgall v. Filmtec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  The commissioner’s representative’s determination that an employee is disqualified for reasons of misconduct is a mixed question of fact and law.  Colburn v. Pine Portage Madden Bros., 346 N.W.2d 159, 161 (Minn. 1984).  “Whether a particular act constitutes disqualifying misconduct is a question of law, which this court reviews de novo.”  Schmigdall, 644 N.W.2d at 804 (Minn. 2002) (citation omitted).  When witness credibility and conflicting evidence are at issue, the reviewing court defers to the commissioner’s representative’s ability to weigh the evidence and make those determinations and does not weigh the evidence on review.  Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995).

I.          Procedural challenges

            Although relator listed as an issue in this appeal his claim that he is entitled to a new hearing or a reopening of the hearing, he did not present any argument or adequate authority on this issue.  We decline to reach this issue in the absence of adequate briefing.  State Dep’t of Labor & Indus. v. Wintz Parcel Drivers, Inc., 558 N.W.2d 480, 480 (Minn. 1997) (declining to reach issue in absence of adequate briefing).

II.        Employment misconduct 

            This court recently held that “[a]n employee’s conduct should be judged against the law in effect at the time of the termination. . . .”  Bray v. Dogs & Cats Ltd. (1997), 679 N.W.2d 182, 186 (Minn. App. 2004); Brown v. Nat’l Am. Univ., 686 N.W.2d 329, 332 (Minn. App. 2004) (holding that the date of discharge controls).  The definition of “employment misconduct” in effect at the time of relator’s termination was contained in Minn. Stat. § 268.095, subd. 6 (2002):

(a)               Employment misconduct means:                                                     (1)       any intentional conduct . . . 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 . . . that demonstrates a substantial lack of concern for the employment.


(b)       Inefficiency, inadvertence, simple unsatisfactory conduct, poor performance because of inability or incapacity, or absence because of illness or injury with proper notice to the employer, are not employment misconduct.


            The supreme court refined this definition by holding that for conduct to be intentional, it must be deliberate.  Houston v. Int’l Data Transfer Corp., 645 N.W.2d 144, 149 (Minn. 2002).  The supreme court explained that

there must be a sufficient showing in the record that the employee not only engaged in intentional conduct, but also intended to, or engaged in conduct that 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. at 150. 

            Relator argues that “mere threats,” ultimatums to the employer that the employee will not tolerate disrespectful treatment, and a refusal to comply with an unreasonable request do not constitute misconduct.  But the cases relied on by relator for this argument were all decided under a different definition of “misconduct” than the definition applicable in this case.  At the time cases relied on by relator were decided, “misconduct” was defined as:

conduct evincing such wilful or wanton disregard of an employer’s interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his employer.


Tilseth v. Midwest Lumber Co., 295 Minn. 372, 374-75, 204 N.W.2d 644, 646 (1973).

            In Meehan v. Lull Corp., this court stated that “we are unconvinced that a mere statement of intended misconduct, without more, is the type of ‘willful,’ ‘wanton’ or ‘equally culpable’ conduct intended” by the Tilseth definition of misconduct.  466 N.W.2d 14, 17 (Minn. App. 1991).  Meehan holds that the commissioner erred by concluding that an employee’s threat to publish a newsletter critical of management constituted misconduct.  Id.  In the case before us, however, the commissioner’s representative found that relator engaged in threatening behavior that went beyond “mere words” during the first exchange and threatened to escalate that behavior in the future if presented with similar circumstances. 

            Christianson v. Geo. A. Hormel & Co., involved threatening statements made by a striking employee on a picket line to replacement workers reporting for work.  404 N.W.2d 334, 335-36 (Minn. App. 1987).  Hormel discharged Christianson for that conduct and for later conduct in which he allegedly damaged property.  Id. at 336.  Christianson was denied unemployment benefits because the commissioner determined that his conduct constituted employment misconduct.  Id.  This court reversed, noting that Christianson was found not to have committed the alleged property damage, his threats “amounted to language alone” that was not directed at his employer, and “a certain amount of conduct can be excused as normal picket line activity.”  Id. at 338.  In the case before us there is no strike, relator’s conduct went beyond “language alone,” and relator confronted his supervisor.

            In Mark W. Peterson Law Offices v. Murphey, this court affirmed the commissioner’s determination that Murphey’s statements made in a bar and over the telephone were not abusive or insubordinate.  392 N.W.2d 319, 322 (Minn. App. 1986).  The determination was based on resolution of conflicting testimony that “required that the fact-finder make a determination of credibility, which this court is not in a position to second guess.”  Id. at 321-22.  In the case before us, the commissioner’s representative’s conclusion that relator’s conduct and statements were threatening is entitled to the same deference.

            Relator next argues that his conduct constituted a “single hotheaded incident” and that a “a long line of Minnesota jurisprudence law” has excepted such incidents from disqualifying the actor from receiving unemployment compensation, citing, in part, Windsperger v. Broadway Liquor Outlet, 346 N.W.2d 142 (Minn. 1984).  But the definition of employment misconduct in effect when Windsperger was decided excluded from misconduct “inadvertencies or ordinary negligence in isolated instances.”  Isse v. Alamo Rent-a-Car, 590 N.W.2d 137, 139 (Minn. App. 1999) (quoting Windsperger, 346 N.W.2d at 144) review denied (Minn. Apr. 20, 1999).  In Isse, we noted that the statutory definition of misconduct enacted in 1998 did not contain the “isolated instances” exclusion that was the basis for holding that “an isolated hotheaded incident which does not interfere with the employer’s business is not misconduct.”  Id. at 140 (quoting Windsperger, 346 N.W.2d at 145).  “Because the phrase the legislature omitted was the basis for considering ‘hotheaded incidents’ as an exception to misconduct, that exception is no longer Minnesota law.”  Id.  Relator’s argument based on a “single hotheaded-incident” exception is, therefore, without merit.

            Relator also relies on Nelson v. Star Tribune, for the proposition that a claimant’s refusal to comply with an unreasonable request is not employment misconduct under the statute.  445 N.W.2d 864, 868 (Minn. App. 1989).  In that case, we affirmed the commissioner’s decision that claimant employees did not commit misconduct when they left the employer’s premises in violation of a foreman’s order not to leave.  Id.  The commissioner found that the foreman’s decision was a “deviation from past practice” and this court concluded, as a matter of law, that the foreman’s order was unreasonable under the circumstances.  Id.  In the case before us, we have no finding that the supervisor’s request that relator refrain from repeating inappropriate, threatening behavior was a violation of any policy or practice or unreasonable.

            The commissioner’s representative found that relator was terminated for intentional “insubordinate and threatening behavior.”  The record supports that finding and supports the conclusion that relator evinced an intent to disregard standards of behavior that the employer had a right to expect.


[1] The commissioner’s representative’s finding that relator pointed his finger in Blevins’s face is not supported in the record, but Blevins did testify that relator’s finger was closer to her than the rest of his body during the first incident.