This opinion will be unpublished and

may not be cited except as provided by

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






Beverly J. Simpson,





Mystic Lake Casino,



Department of Employment and

Economic Development,



Filed January 3, 2006

Affirmed; motion denied
Klaphake, Judge


Department of Employment and Economic Development

File No. 16400 04


Lisa Hollingsworth, Southern Minnesota Regional Legal Services, Inc., 15815 Franklin Trail SE, Suite 309, Prior Lake, MN  55372 (for relator)


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.

U N P U B L I S H E D   O P I N I O N


            Relator Beverly J. Simpson brings this certiorari appeal to challenge a decision by a senior unemployment review judge (review judge) that she was disqualified from receiving benefits because she was discharged for misconduct by her employer, respondent Mystic Lake Casino, Inc.  Because, under any objective view of the facts, relator’s rude and discourteous conduct towards casino guests while she was a blackjack dealer was a serious violation of the standards of behavior that Mystic Lake had the right to reasonably expect of relator, we affirm.


            An 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 (Minn. 2002).  The determination of whether an employee committed a particular act involves a question of fact that will not be reversed if there is evidence in the record to reasonably support it; whether a particular act constitutes disqualifying misconduct is a question of law that is reviewed de novo.  Id.  We review factual findings made by the review judge in the light most favorable to the decision.  Id.

            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).[1]

            As 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 (Minn. App. 1986), review denied (Minn. June 13, 1986).  And continuing a course of conduct after an employer’s warning to refrain from that conduct is misconduct.  See, e.g., Schmidgall, 644 N.W.2d at 806; Brown v. Nat’l Am. Univ., 686 N.W.2d 329, 333 (Minn. App. 2004), review denied (Minn. Nov. 14, 2004); Gilkeson v. Indus. Parts & Serv., Inc., 383 N.W.2d 448, 452 (Minn. App. 1986); Campbell v. Minneapolis Star & Tribune Co., 345 N.W.2d 803, 805 (Minn. App. 1984); Evenson v. Omnetic’s, 344 N.W.2d 881, 883 (Minn. App. 1984).

            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”).

            Relator 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 (Minn. App. 1985).  The hearsay evidence relied upon here was probative of the issues involved and offered substantial indicia of reliability.  See Minn. R. 3310.2922 (2005) (providing that any evidence “which possesses probative value, including hearsay, [may be received] if it is the type of evidence on which reasonable, prudent persons are accustomed to rely in the conduct of their serious affairs”).  Further, relator did not dispute the substance of the hearsay evidence.

            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.

[1]  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 (Minn. 2002) (applying definition of employment misconduct in effect in 2002).  Both parties spend considerable time arguing about the Houston two-prong test and about whether it remains good law under the current statutory definition of employment misconduct.  Because this case falls under the 2004 definition of employment misconduct, we decline to comment further on the continuing viability of Houston.