This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
Minnesota Valley Action Council, Inc.,
Commissioner of Employment and
Filed March 1, 2005
Department of Employment and Economic Development
File No. 18451 03
Silas L. Danielson, Elizabeth L. Weinandt, Blethen, Gage & Krause, P.L.L.P., 127 South 2nd Street, P.O. Box 3049, Mankato, MN 56002-3049 (for relator)
Joaan Rowe, 19 Wood Drive, Mankato, MN 56001 (respondent)
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, Hudson, Judge, and Crippen, Judge.
Relator Minnesota Valley Action Council, Inc. challenges the commissioner’s representative’s decision that its former employee, respondent Joaan Rowe, is eligible for unemployment compensation benefits because she did not commit employment misconduct in refusing to sign relator’s corrective action plan. Relator argues that respondent committed employee misconduct by failing to sign its correction plan, and that she is thereby disqualified from receiving unemployment benefits. Because we conclude that relator confronted respondent with an unreasonable request, and that respondent’s actions did not therefore constitute employment misconduct, we affirm.
Respondent began working for relator in 1992. In August 2003, respondent worked a reduced schedule after returning from a one-month medical leave of absence. On September 5, she met with her supervisor and a human resources representative about concerns she had regarding her work responsibilities and relationships with other co-workers. At the meeting, respondent was presented with a correction plan containing several complaints about her conduct. She signed the corrective action memo after adding a handwritten statement, “I have received this memo and understand it.” Soon thereafter and pursuant to relator’s policy, respondent filed a formal grievance against her supervisor and subsequently met with relator’s human resources representative to discuss her complaint.
On September 22, respondent again met with her supervisor and the human resources representative. At that meeting she was presented with a performance review, which deemed her job performance unsatisfactory in 36 out of 48 categories. Respondent did not believe that the evaluation was an accurate portrayal of her work performance or behavior but nonetheless signed the evaluation, indicating that she had read and understood it. On October 1, she met with her supervisor and the human resources representative to discuss a draft correction plan prepared by her employer. At the conclusion of the meeting, the three decided that respondent would provide relator with a plan of her own, responsive to the items raised by her employer. Respondent complied by drafting a corrective action plan and submitting it soon after the meeting.
On October 6, respondent again met with the human resources representative to discuss the grievance she had previously filed against her supervisor. At the conclusion of the meeting, relator suspended respondent. The human resources representative testified that respondent was suspended “based on a variety of complaints [relator] had with her performance.” Two days later, while respondent was on suspension, her supervisor and the human resources representative appeared unannounced at her home. They presented her with a “Written Notice of Suspension,” which she reluctantly signed—indicating that she had received and read the document—despite the fact that she had not actually read it. She agreed to report to work on October 13 in order to attend yet another meeting with the human resources representative.
At the meeting on October 13, 2003, respondent was asked if she was ready to sign the corrective action plan. Believing that the plan was still under discussion because she had not yet seen any revision modified to reflect her submitted suggestions, respondent stated that she would not sign the plan because it contained unfair and untrue statements. At the meeting, relator’s representative did not present respondent with a revised copy or any copy of the corrective action plan for her review. When she refused to sign the plan in its current form, the human resources representative called the executive director of relator, who authorized respondent’s immediate termination.
Respondent subsequently applied for unemployment compensation benefits with the Minnesota Department of Employment and Economic Development. The department made an initial determination that respondent was terminated from her job “for reasons other than employment misconduct.” Relator appealed this determination to an unemployment law judge. The judge reversed and found that respondent’s unwillingness to cooperate and sign the correction plan constituted employment misconduct because relator’s request was reasonable and did not impose an undue burden. Respondent then appealed the judge’s decision to a representative of the commissioner. The commissioner’s representative reversed the judge and concluded that relator’s request was not reasonable under the circumstances. Specifically, the representative reasoned:
Prior to being asked to sign off on the corrective action plan on October 13, 2003, however, the applicant was never given the opportunity to review the version of the plan she was being asked to sign. Further, the applicant was given no guidance regarding the status of her grievance. Under the circumstances, we are not persuaded that the applicant’s conduct in declining to agree to sign the plan was unreasonable or constituted employment misconduct. We note that the applicant had complied with the employer’s previous requests for her signature when she was provided with an opportunity to review the document.
Since the evidence fails to establish that the applicant knowingly behaved improperly in connection with the final incident resulting in her termination . . . we are unable to conclude that the applicant’s behavior constituted a deliberate violation of the standards of behavior that the employer had a right to reasonably expect of her.
Based on this determination, the commissioner’s representative concluded that respondent would be eligible for unemployment benefits.
Relator argues that respondent’s refusal to sign a copy of the corrective action plan constituted employee misconduct that precluded her from receiving unemployment benefits. This court reviews 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 and will not disturb them when they are reasonably sustained by the evidence. Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989). Decisions of the commissioner’s representative are accorded “particular deference.” Tuff, 526 N.W.2d at 51. But whether an employee’s act constitutes misconduct is a question of law upon which reviewing appellate courts remain free to exercise their independent judgment. Schmidgall v. Filmtec Corp., 644 N.W.2d 801, 804 (Minn. 2002).
A person discharged from employment because of employment misconduct is disqualified fromreceiving unemployment benefits. Minn. Stat. § 268.095, subd. 4(1) (Supp. 2003). Employment misconduct is defined as “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). The general rule is that if an employer’s request is reasonable and does not impose an unreasonable burden on the employee, the employee’s refusal to abide by the request constitutes misconduct. Schmidgall, 644 N.W.2d at 804. But “[w]hat is ‘reasonable’ will vary according to the circumstances of each case.” Sandstrom v. Douglas Mach. Corp., 372 N.W.2d 89, 91 (Minn. App. 1985).
Here, the commissioner’s representative found that respondent’s refusal to sign the corrective action plan did not constitute employee misconduct because relator’s request was unreasonable under the circumstances, given the fact that respondent was not able to review the version of the plan she was being asked to sign nor given guidance regarding the status of the grievance she had previously filed against her supervisor. Notably, and as the commissioner’s representative explained, “[Respondent] had complied with [relator’s] previous requests for her signature when she was provided with an opportunity to review the document.”
Relator implies that respondent did not cooperate throughout the correction process, but the record suggests otherwise, reflecting that respondent cooperated by discussing corrective steps and actually drafting and submitting a correction plan. After respondent was suspended, respondent’s supervisor and relator’s human resources representative appeared at respondent’s home without prior notice and asked her to sign a written confirmation of her suspension. A few days later, when asked to sign a copy of a plan that she had not yet had a chance to review and that to her knowledge contained “unfair and untrue statements,” respondent was terminated for refusing to do so. At the evidentiary hearing, the human resources representative conceded that respondent did not have a chance to review the final corrective action plan.
Respondent testified that she would have signed the last written plan presented to her had it been in the format with which she had previously been accustomed, with the signature block, “I have received this memo and understand it.” She was not presented with a plan in any form on October 13. Based on their previous dealings and the lack of clear communication between the employer and employee, respondent’s behavior was not employment misconduct—not the “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” envisaged by Minn. Stat. § 268.095, subd. 6(a). Respondent’s actions did not constitute employment misconduct because relator’s request to have respondent sign a document that she had not been given an opportunity to review was unreasonable and placed an unreasonable burden on respondent. The commissioner’s representative correctly determined that respondent’s behavior under these particular circumstances did not constitute a deliberate violation of the standards of behavior that relator had a right to reasonably expect of her.
To support its argument that respondent’s conduct constituted misconduct, relator relies heavily on our recent decision in Vargas v. Northwest Area Found., 673 N.W.2d 200 (Minn. App. 2004), review denied (Minn. Mar. 30, 2004). In Vargas,we determined that an employee’s intentional refusal to participate in a reasonable employment-performance plan constituted “employment misconduct” and disqualified the employee from receiving benefits. Id. at 207. But in that case, after having agreed to complete a performance-improvement plan, the employee failed to complete any of the requirements of the plan. Id. at 204. The employer followed up with the employee, who further refused to complete the plan. Finally, after another unsuccessful meeting, the employer terminated the employee. Id. In ruling that the employee’s conduct constituted misconduct, we concluded that the employee’s actions were both intentional and a conscious disregard of his duties and obligations as an employee, thereby satisfying the statutory definition of “misconduct” then in effect under Minn. Stat. § 268.095 (2002). Id. at 206-07. In summary:
When [the employer] gave [the employee] the performance plan, they informed him that the fulfillment of the plan was a ‘decision point’ of his employment, and the commissioner’s representative found that [the employee] failed to comply. [The employee] intentionally disobeyed [the employer’s] reasonable instructions that he improve his job performance and committed employment misconduct as defined by Minn. Stat. § 268.095.
Id. at 207. In contrast to Vargas, the record here reflects that respondent had attempted to cooperate with relator throughout the correction plan process. When she refused to sign a copy of a plan that she had not yet reviewed, she was terminated at once. Although we recognize that employees can commit employment misconduct by intentionally refusing to participate in a reasonable employment-performance plan, the facts here demonstrate unreasonable behavior of relator and dictate against a determination of misconduct.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 The “Written Notice of Suspension” explained to Rowe that “[y]our failure to sign [the Corrective Action Plan and the directives] and provide a written statement addressing the violations and what you will do to correct the problems identified in the [CAP] . . . and the directives resulting from recent past meetings . . . at the October 13, 2003 meeting can result in further corrective action, up to and including termination.”
 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).
 Even if the two drafts of the plan were similar, this was not made clear to respondent at the time she was asked to sign the document. And in fact, a comparison of the two documents reveals that they are not similar.
 As Vargas explains, the statutory definition of “employment misconduct” was amended on August 1, 2003. 673 N.W.2d at 205 n.2. The 2002 version of the statute defined, “employment misconduct” as:
(1) any intentional conduct, on the job or off the job, 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, on the job or off the job, that demonstrates a substantial lack of concern for the employment.
Minn. Stat. § 268.095, subd. 6(a) (2002).