This opinion will be unpublished and

may not be cited except as provided by

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






Scott P. Foster,





Vance Uniformed Protection Services, Inc.,



Department of Employment and Economic Development,



Filed April 11, 2006


Stoneburner, Judge


Department of Employment and Economic Development

File No. 164505


Scott P. Foster, 1771 West Minnehaha Avenue, St. Paul, MN  55104 (pro se relator)


Vance Uniformed Protection Services, Inc., 2314 University Avenue West, St. Paul, MN  55114 (respondent)


Linda A. Holmes, Department of Employment and Economic Development, 332 Minnesota Street, Suite E200, St. Paul, MN  55101-1351 (for respondent department)


            Considered and decided by Stoneburner, Presiding Judge; Kalitowski, Judge; and Willis, Judge.

U N P U B L I S H E D  O P I N I O N


            Relator Scott Foster challenges the decision by the senior unemployment-review judge (SURJ) that he was disqualified from receiving unemployment benefits because he had been discharged for misconduct.  Relator argues that he was justified in not following his employer’s directive to take a training class and contends that a finding that he failed to follow another directive was clearly erroneous.  Because relator failed to follow his employer’s reasonable directives and because the challenged finding is reasonably supported by the evidence, we affirm.


            Relator worked for respondent Vance Uniformed Protection Services as a security officer from August 16, 2004, until December 7, 2004, when he was discharged.  He was a site supervisor at a Fairview hospital.

            Vance’s contract with Fairview required the security officers to complete certain training within 90 days after their assignment at a hospital.  Relator was initially assigned to the hospital in mid-August, and the 90 days would have ended in mid-November.  On October 12, relator’s supervisor reminded relator of the training requirement, and relator acknowledged this requirement.  He completed a required restraint-training class in October but did not take the required handcuffing-and-chemical-agent class.  Vance offered the handcuffing-and-chemical-agent class twice a month at its offices.

            As of November 10, relator still had not taken the class.  The supervisor talked to him again, advising him that if he did not attend training within the 90-day period he would be removed, and the supervisor placed relator on a written action plan.  Relator agreed to take the class.  On December 7, when relator still had not taken the class, the supervisor talked to him again.  Relator told his supervisor that the client did not feel that it was important enough for him to take the class.

            Relator explained at the hearing that he did not take the class because he had a conversation with someone from the hospital who indicated that the hospital’s policy of allowing officers to wear handcuffs and use chemical agents was under review and suggested that relator delay taking the class.  Relator did not advise his Vance supervisor about this, explaining that he was intimidated by the supervisor.  Further, he was trying to please the client.  He also testified that it was a matter of timing and scheduling.

            The supervisor also had expressed concerns to relator as to whether relator was following the policy and ensuring that all of the officers he supervised initialed posted memos, indicating that they had read them, within a three-day period.  The supervisor observed that only about half of the officers had initialed two memos, one concerning the schedule for doors that needed to be locked at the facility at night and the other concerning uniform appearance.

            Relator testified that he had told his officers they needed to initial the memos.  They did so, except for one officer who did not sign because he did not agree with the memo.  Relator testified that his supervisor was mistaken when he said that only about half of the officers initialed the memos.

            As a result of failing to follow these directives, Vance discharged relator.  Relator established a benefit account with DEED.  The department initially determined that relator had been discharged for reasons other than misconduct and was qualified for benefits.  Vance appealed.  After a hearing, the unemployment-law judge reversed the determination, finding that relator had been discharged for misconduct and was disqualified from receiving benefits.  Relator appealed, and the SURJ issued the final agency decision, holding that relator was discharged for misconduct.  This certiorari appeal by relator followed.


            An appellate court will review findings that were made by the SURJ under a clearly erroneous standard.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  The appellate court will review issues of law de novo.  Id.  “Whether an employee engaged in conduct that disqualifies the employee from unemployment benefits is a mixed question of fact and law.”  Id.

            An employee who is discharged for misconduct is disqualified from benefits.  Minn. Stat. § 268.095, subd. 4 (2004).  The statute defines misconduct as “any intentional, negligent, or indifferent conduct, on the job 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).

            “As a general rule, refusing to abide by an employer’s reasonable policies and requests amounts to disqualifying misconduct.”  Schmidgall, 644 N.W.2d at 804, 807 (upholding misconduct determination when employee had been discharged for violations of policy requiring report of any injury during shift in which it occurred).  This court has upheld a determination of misconduct when a security guard violated the employer’s policy by leaving a post without waiting for a replacement.  Sivertson v. Sims Sec., Inc., 390 N.W.2d 868, 870-71 (Minn. App. 1986), review denied (Minn. Aug. 20, 1986).  This court has also upheld a determination of misconduct based on a relator’s refusal to sign an employee-classified-information agreement.  Sandstrom v. Douglas Mach. Corp., 372 N.W.2d 89, 92 (Minn. App. 1985).

Relator argues that the written contract between Vance and Fairview requiring training may have been altered by a statement from hospital staff that it was reconsidering this policy and that he could delay taking this class.  He asserts that as Vance’s representative at the hospital, he was aware of the hospital’s concerns.  He further contends that his supervisor merely “suggest[ed]” that he take the class and explains that he did not discuss the proposed change with his supervisor because he was not approachable.

Vance, not the hospital, was relator’s employer.  There is no evidence that relator even attempted to discuss with Vance his belief that the hospital might no longer require handcuffing-and-chemical-agent training.  The evidence supports the determination that relator was required to take the training class, rather than that it was merely suggested.  Relator’s failure to take the required training class within 90 days after his assignment at the hospital constitutes misconduct.

            The second basis for relator’s discharge was relator’s failure to have the officers he supervised initial two memos indicating that they read them within three days after posting, pursuant to Vance’s policy.  His supervisor testified that only about half of the officers initialed the memos, while relator testified that 14 out 15 initialed them, with the exception of one officer who did not initial the memo because he did not agree with it.  The SURJ credited the supervisor’s testimony over relator’s and found that the memos had been initialed by only about half of relator’s officers.  This finding is reasonably supported by the evidence and also supports the determination of misconduct.

            Relator also refers this court to a memo not submitted to the ULJ and advises this court it is available if he is allowed to submit it here.  “It is well settled that an appellate court may not base its decision on matters outside the record on appeal, and that matters not produced and received in evidence below may not be considered.”  Plowman v. Copeland, Buhl & Co., 261 N.W.2d 581, 583 (Minn. 1977).  Consequently, this court will not consider this memo.

            Relator also argues that the real reason he was terminated was a fundamental difference in values and management style between Vance and him.  This issue was not raised below, and relator again attempts to cite facts for the first time on appeal.  We will not consider such arguments.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).

            The decision of the SURJ that relator was discharged for misconduct and thereby disqualified from receiving unemployment benefits is affirmed.