This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Josephine A. Lee,
Nelson’s Markets, Inc.,
Commissioner of Employment and Economic Development,
Minnesota Department of Employment and Economic Development
File No. 8464 04
Josephine A. Lee,
Nelson’s Markets, Inc., North Branch Location, 6355 Elm Street, P.O. Box 338, North Branch, MN 55056-0338 (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 Schumacher, Presiding Judge; Peterson, Judge; and Wright, Judge.
Relator was discharged from her employment for making a discourteous comment to a customer. On certiori appeal from the denial of unemployment benefits, relator challenges the determination of the senior unemployment review judge that she committed employment misconduct. We affirm.
Relator Josephine Lee was employed by respondent Nelson’s Markets as a grocery bagger. During her regular shift on April 19, 2004, Lee was assisting customers in the store parking lot. One of the customers was a woman with her child, a boy who appeared to be three or four years old. Lee observed that the boy was wearing a dress, a bonnet, and high-heeled shoes. Lee admits that she told the woman, “If this little guy winds up gay, it’s your fault.”
The woman reported the comment to a supervisor, who later characterized the woman as extremely distraught. Based on this incident, the supervisor discharged Lee. The employee handbook for Nelson’s Markets provides that, when an employee makes a discourteous comment to a customer, the employee may be immediately discharged.
Lee applied for unemployment benefits from the Department of Employment and Economic Development (Department). The Department denied the application, finding that Lee had been discharged for employment misconduct. Lee appealed, and the unemployment law judge reversed, concluding that, because Lee did not intend her comment to the woman to be offensive or discourteous, Lee did not commit employment misconduct. Nelson’s Markets appealed to a Senior Unemployment Review Judge (SURJ). The SURJ reversed, finding that Lee intended her comment to be discourteous and concluding that the comment constituted employment misconduct. This certiorari appeal followed.
review the decision of the SURJ,
notwithstanding a contrary determination by the unemployment law judge. Tuff v. Knitcraft Corp., 526 N.W.2d
50, 51 (
Lee initially challenges certain findings by the SURJ. The SURJ found that Lee bagged groceries for the complaining customer, but Lee counters that she did not assist the customer on the day of the incident. Although Lee correctly observes that nothing in the record supports this finding of the SURJ, any error is harmless because the finding is not determinative of whether Lee committed employment misconduct.
SURJ also found that Lee accused the customer of being a bad mother and
intended to upset her. Lee does not deny
making the statement. Rather, Lee claims
that her statement was motivated by concern for the boy’s well-being. When the SURJ credited the testimony of Lee’s
supervisor that the customer was emotionally distraught, the SURJ made an
assessment of credibility that is entitled to deference from an appellate
court. Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (
Lee also challenges the SURJ’s determination that she committed employment misconduct. An employee who is discharged for employment misconduct is disqualified from receiving unemployment benefits. Minn. Stat. § 268.095, subd. 4 (Supp. 2003). Employment misconduct is defined by Minn. Stat. § 268.095, subd. 6 (Supp. 2003), which provides in relevant part:
Employment misconduct means 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.
Violation of a
rule in an employee handbook may constitute employment misconduct. Dean v.
Allied Aviation Fueling Co., 381 N.W.2d 80, 84 (
when a handbook does not inform the employee of the expectations of the
employer, employment misconduct has been construed to include offensive or
discourteous behavior toward patrons.
Thus, when a nursing home employee knew that discourteous language to a
resident could result in discharge, using hostile language against a resident
was employment misconduct. Ideker v. LaCrescent Nursing Ctr., Inc.,
Nelson’s Market had an employee handbook that provided, if an employee made a discourteous comment to a customer, the employee may be immediately discharged. Because the success of Nelson’s Market depends in part on its reputation with its customers, it was reasonable for Nelson’s Market to expect courteous behavior from its employees. By intentionally making a comment that caused a customer to be upset and emotionally distraught, Lee violated the standards of behavior that had been set by Nelson’s Market. Lee’s actions evinced a serious violation of standards that Nelson’s Market had the right to reasonably expect from its employees. Accordingly, the SURJ did not err in concluding that Lee committed misconduct and, therefore, was disqualified from receiving unemployment benefits.
 Prior to the amendment of the unemployment benefits
statutes in 2004, the commissioner’s representative reviewed decisions of the unemployment
law judge. The amendment created the new
position of SURJ, who acts in a similar capacity as the commissioner’s
representative under the previous scheme.
 The revisor’s office inadvertently substituted the term “ineligible for” for the term “disqualified from” in Minn. Stat. § 268.095, subds. 1, 4, 7, and 8(a) (Supp. 2002) (using term “disqualified from”); 2003 Minn. Laws 1st Spec. Sess. ch. 3, art. 2 § 20G), (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).
 The definition of employment misconduct has since been amended, 2004 Minn. Laws ch. 183, § 86, but we apply the definition in effect at the time of the discharge, Brown v. Nat’l Am. Univ., 686 N.W.2d 329, 332 (Minn. App. 2004), review denied (Minn. Nov. 16, 2004).