This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).







Donna M. Schilling,





Marshall Deputy Registrar,



Commissioner of Employment and Economic Development,




Filed February 22, 2005


Huspeni, Judge*


Department of Employment and Economic Development

File No. 1567 04



Donna M. Schilling, 2839 270th Street, Marshall, MN  56258-5296 (appellant pro se)


Marshall Deputy Registrar, P.O. Box 99, Marshall, MN  56258-0099 (respondent employer)


Lee B. Nelson, Linda A. Holmes, Department of Employment and Economic Development, E200 First National Bank Building, 332 Minnesota Street, St. Paul, MN  55101 (for respondent commissioner)


            Considered and decided by Toussaint, Chief Judge; Dietzen, Judge; and Huspeni, Judge.

U N P U B L I S H E D   O P I N I O N


            Relator challenges the decision by the commissioner’s representative that she was disqualified from receiving unemployment benefits because she had been discharged for misconduct.  The representative determined that relator had committed employment misconduct because she had been insubordinate and failed to follow the employer’s directives.  Relator argues that she did not commit misconduct because she had performed her job properly, albeit not in accordance with her employer’s directives.  Because relator’s refusal to follow her employer’s instructions and insubordinate conduct constituted misconduct, we affirm.


            Relator Donna Schilling was employed as a customer-service representative for the Marshall Deputy Registrar, a title bureau, from November 2000 until she was discharged on December 8, 2003.  Her duties included issuing driver’s licenses and accepting motor-vehicle titles.  Before working for the Marshall Deputy Registrar, Schilling had 15 years of experience performing the same duties at another deputy registrar’s office.

            It is undisputed that Schilling believed that she had a better understanding of how to resolve problems and perform tasks than her employer did, she did not always follow the directives given her by her employer and instead performed the work in the way that she felt was best, and she believed that she treated customers with respect while her employer did not do so.

            The situation culminated on December 8, 2003, when Schilling gave her employer a letter in which she asserted her working conditions had become intolerable and raised a number of complaints.  Schilling insisted that her employer comply with a number of her demands, including:

                                    1.         I am to be treated with respect and as an equal.


                                    2.         I will not work without proper break times.


                                    3.         You will treat customers with respect.


                                    4.         I will be allowed to finish any transaction I start and your input will only be given if asked for.


                                    5.         The phone is to be available for incoming calls at all times.


                                    6.         I will be allowed to call the State at any time for clarifications if necessary.


                                    7.         I will be allowed to follow instructions given by the state office.


                                    8.         Customer overcharges will be promptly refunded.


Schilling further advised her employer that she would stay away from the office until she received an apology and a request to return; otherwise she would assume that she was terminated.  The employer discharged her for insubordination.

            Schilling established an unemployment benefits account.  The department determined that she had been discharged for misconduct and was not qualified to receive benefits.  She appealed to the unemployment law judge (ULJ) and, after a hearing, the ULJ affirmed.  Her further appeal to the commissioner’s representative also resulted in an affirmance.  This appeal by writ of certiorari followed.


            “Whether an employee engaged in conduct that disqualifies the employee from unemployment benefits is a mixed question of fact and law.”  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  An appellate court will defer to decisions made by the commissioner’s representative.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  Findings of fact will be reviewed “in the light most favorable to the commissioner’s decision” and the appellate court will not disturb them “as long as there is evidence that reasonably tends to sustain those findings.”  Schmidgall, 644 N.W.2d at 804.  The appellate court will review questions of law de novo.  Id.

            The law in effect at the time of the discharge governs.  Brown v. Nat’l Am. Univ., 686 N.W.2d 329, 332 (Minn. App. 2004), review denied (Minn. Nov. 16, 2004).  Because the 2003 amendments were effective August 1, 2003, and the discharge occurred in December 2003, the 2003 amendments will be applied.  See Minn. Stat. § 645.02 (2002) (unless otherwise specified, each act “takes effect on August 1 next following its enactment”).

            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 “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) (Supp. 2003).  “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 . . . are not employment misconduct.”  Id.

            “[A]n employee’s intentional refusal to perform a task, as opposed to negligent forgetfulness, supports the commissioner’s representative’s decision that an employee committed misconduct.”  Vargas v. Northwest Area Found., 673 N.W.2d 200, 207 (Minn. App. 2004) (refusal to complete improvement plan), review denied (Minn. Mar. 30, 2004).  Employee misconduct also occurred when the employee “deliberately chose not to obey her employer’s instructions because she thought the new . . . program was ‘stupid.’”  Bibeau v. Resistance Tech., Inc., 411 N.W.2d 29, 32 (Minn. App. 1987).  Refusal to unload a truck was determined to be “a deliberate act of insubordination” constituting employment misconduct, despite the employee’s arguments that his actions were justified.  Daniels v. Gnan Trucking, 352 N.W.2d 815, 816 (Minn. App. 1984).

            In this case, the commissioner’s representative ruled as follows:

                        An employer has the right to determine how its business is to be run.  An employer has the right, in fact, to run its business poorly if it wishes.  An employer also has the right to expect employees to follow reasonable procedures and rules the employer decides to implement.


                        In this case, Schilling felt that she knew better than the owner how to run the business.  Whether she did is not relevant.  It was the owner’s prerogative to determine how the business would be run, and Schilling’s duty as an employee to follow the directives and procedures that the owner established.  Schilling’s insistence that she be treated as a peer and not be given direction unless she asked for it clearly violated the bounds of the employer-employee relationship.  By refusing to do her job as the employer directed, Schilling seriously violated the standard of behavior the employer reasonably expected of her.


            In this certiorari appeal, Schilling continues to express the opinion that she was doing her job properly and in accordance with the procedures she knew to be correct.  She also criticizes the manner in which her employer conducted transactions.  Schilling asserts that her “demand” letter to her employer was simply an attempt to try to have an open and honest discussion with her employer.  Finally, she criticizes her employer for failing to report any of her FICA withholdings to the government.

            Schilling admittedly refused to perform tasks in accordance with her employer’s directives on a number of occasions.  There was no testimony that any of the employer’s requests or policies were improper or illegal.  Schilling believed she knew the proper way to perform tasks, and did not follow the reasonable directives of her employer.  Such conduct constitutes misconduct.  See Bibeau, 411 N.W.2d at 32; Daniels, 352 N.W.2d at 816.  The commissioner’s representative properly determined that Schilling engaged in employment misconduct and was disqualified from receiving unemployment benefits.


* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] The revisor’s office inadvertently substituted the term “ineligible for” for the term “disqualified from” in Minn. Stat. § 268.095, subds. 1, 4, 7, 8(a) (Supp. 2003).  See Minn. Stat. § 268.095, subds. 1, 4, 7, 8(a) (2002) (using term “disqualified from”); 2003 Minn. Laws 1st Spec. Sess. ch. 3, art. 2, § 11 (making other changes to Minn. Stat. § 268.095, subd. 1, but retaining term “disqualified from”); 2003 Minn. Laws 1st Spec. Sess. ch. 3, art. 2, § 20(j), (k) (directing revisor to change the term “disqualified from” to “ineligible for” only in Minn. Stat. § 268.095, subd. 12, and then to renumber to Minn. Stat. § 268.085, subd. 13b).