This opinion will be unpublished and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
Mystic Lake Casino,
Department of Employment and
Filed January 3, 2006
Department of Employment and Economic Development
File No. 16400 04
Hollingsworth, Southern Minnesota Regional Legal Services, Inc., 15815 Franklin
Little Six, Inc., Divisional HR, 2400 Mystic Lake Boulevard NW, Prior Lake, MN 55372 (respondent employer)
Linda A. Holmes, Amy Zaske, Certified Student Attorney, Department of Employment and Economic Development, E200 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101 (for respondent Department)
Considered and decided by Halbrooks, Presiding Judge, Klaphake, Judge, and Wright, Judge.
employee discharged for employment misconduct is disqualified from receiving
unemployment benefits. Minn. Stat. §
268.095, subd. 4(1) (2004). “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 (
Employment misconduct is currently defined as follows:
Employment misconduct means any intentional, negligent, or indifferent conduct, on or off the job (1) that displays clearly a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee, or (2) that displays clearly a substantial lack of concern for the employment.
Minn. Stat. § 268.095, subd. 6(a) (2004).
a general rule, refusing to abide by an employer’s reasonable policies and
requests falls under the definition of disqualifying misconduct. Schmidgall,
644 N.W.2d at 804. Rudeness to customers
has been found to be misconduct. See, e.g., Montgomery v. F & M Marquette
Nat’l Bank, 384 N.W.2d 602, 605 (
Here, the record established that relator (1) received a written warning in April 2003 about her rude and unfriendly behavior; (2) received a second warning in May 2004, after which she was suspended for three days and told that if she received another negative comment from a guest, she would be terminated; and (3) was discharged in September 2004, after her employer received a third complaint that she had been rude. The employer’s representatives explained at the hearing before the unemployment law judge that: (1) given the nature of the employer’s business, the development of a positive, friendly relationship between a blackjack dealer and the guests at his or her table was of utmost importance; and (2) the employer took guest comments very seriously, investigated them, and informed upper management of the investigation results.
Relator did not deny that guest comments were important and acknowledged that she had been warned that if she received one more negative comment, she would be terminated. Rather, she argues that it was unreasonable for the employer to expect perfection from her given the number of guests she interacted with every night. But considering the nature of the employer’s business and considering the undisputed facts here, relator’s conduct easily falls under the definition of employment misconduct: her conduct was “intentional, negligent, or indifferent” and “display[ed] clearly a serious violation of the standards of behavior the employer ha[d] the right to reasonably expect of the employee.” Minn. Stat. § 268.095, subd. 6(a).
Relator also argues that she is not disqualified from receiving benefits because her conduct falls under one of the statutory exceptions to misconduct. But the facts are undisputed that relator received two prior warnings, including a written warning and a three-day suspension. She knew that her employer took these complaints seriously and she knew that another complaint would result in her termination. Under any view of the evidence, relator’s conduct does not fall under any of the statutory exceptions to misconduct. See Minn. Stat. § 268.095, subd. 6(a) (stating that “[i]nefficiency, 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”).
further claims that the review judge’s decision is flawed because it relied
solely on hearsay evidence that had no indicia of reliability. We disagree.
Hearsay evidence is admissible in unemployment insurance hearings. See Minn.
Stat. § 268.105, subd. 1(b) (2004); Holtan
v. Gnan Trucking, Inc., 379 N.W.2d 571, 574 (
Finally, relator moves to strike the entire appendix compiled by the department. Relator argues that the first two documents should be stricken because one is not included in the list of portions of the record to be included in an appendix and because the other is already included in relator’s appendix and therefore not authorized to be included in an appendix to a respondent’s brief. See Minn. R. Civ. App. P. 130.01, subd. 1 (setting out portions of record that an appendix “shall” contain, including “relevant written motions and orders”), .02 (stating that if appellant “omits any items specified in Rule 130.01, only those omitted items may be included in an appendix to the respondent’s brief”). While relator’s strict reading of the rules may be correct, because inclusion of these documents did not add any significant length to the department’s brief and because relator can show no prejudice, we deny her motion to strike these two documents. See Minn. R. Civ. P. 61 (setting out harmless error rule).
With respect to the final documents contained in the department’s appendix, relator argues that they should be stricken because they are not part of the record of the administrative proceedings. See Minn. R. App. P. 110.01 (setting out contents of record). Although these documents are not contained in the record, they include materials setting out legislative history and are readily available to the public; thus, we may take judicial notice of the facts contained therein and deny relator’s motion to strike. See In re Estate of Turner, 391 N.W.2d 767, 771 (Minn. 1986) (stating that “we see no reason why a party may not submit . . . a report to us as part of its brief when we could refer to such a report in the course of our own research, if we were so inclined”).
Affirmed; motion denied.
 Relator argues that the review judge’s
decision should be reversed because her conduct cannot be considered
intentional under Houston v. Int’l Data
Transfer Corp., 645 N.W.2d 144, 149 (