This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






Lynn M. Adam,





Tennyson Enterprises, Inc.,



Department of Employment and Economic Development,



Filed June 26, 2007


Shumaker, Judge


Department of Employment and Economic Development

File No. 4834 06




Donald C. Erickson, Fryberger, Buchanan, Smith, & Frederick, P.A., 700 Lonsdale Building, 302 West Superior Street, Duluth, MN 55802 (for relator)


Tennyson Enterprises, Inc., Pizza Hut of Park Rapids, 109 First Street East, Park Rapids, MN 56470-1695 (respondent-employer)


Lee B. Nelson, Linda A. Holmes, Minnesota Department of Employment and Economic Development, First National Bank Building, 332 Minnesota Street, Suite E200, St. Paul, MN 55101-1351 (for respondent department)



            Considered and decided by Peterson, Presiding Judge; Shumaker, Judge; and Ross, Judge.

U N P U B L I S H E D   O P I N I O N


            Relator challenges the unemployment-law judge’s decision that she was disqualified from receiving unemployment benefits because she was discharged for misconduct, arguing that she did not engage in employment misconduct under Minn. Stat. § 268.095, subd. 6(a) (2004).  Because relator engaged in employment misconduct, we affirm.


            Relator Lynn Adam began working for respondent Tennyson Enterprises, Inc. at a Pizza Hut restaurant in Park Rapids in 1999.  She was promoted to restaurant manager in 2001 and succeeded in her new role.

            In early 2005, Michael Inman, Tennyson’s area manager, observed unsatisfactory, dirty conditions in Adam’s restaurant.  Inman began meeting regularly with Adam to address the restaurant’s cleanliness, which had become a noticeable problem.  Despite their regular discussions, the unsanitary condition did not improve.  Inman continually observed and documented dirty floors, walls, and cooking equipment.

            Inman also wrote Adam three letters detailing the restaurant’s unsatisfactory condition, and in one letter requested that Adam develop a six-week cleaning program to address the issue.  Adam created a cleaning checklist, but weekly checklists were always incomplete, and the conditions did not improve.  Adam blamed the problems on uncooperative employees and her knee injury, but she never reprimanded anyone for not cleaning.  Sales and profits declined when the restaurant was dirty.

            A final inspection in March 2006 showed that the unsanitary condition of the restaurant had not been corrected.  Tennyson discharged Adam, and she applied for unemployment benefits.  A Minnesota Department of Employment and Economic Development (DEED) adjudicator found that Adam was not disqualified from receiving benefits, and Tennyson appealed.  After a hearing, the unemployment-law judge (ULJ) disqualified Adam from receiving benefits due to employment misconduct.  The ULJ held that Adam’s continued failure to maintain a clean restaurant “was a serious violation of accepted workplace standards . . . and showed a substantial lack of concern for the employment.”

            Adam requested reconsideration, and the ULJ affirmed his decision.  This certiorari appeal followed.


            Relator Lynn Adam challenges the ULJ’s decision disqualifying her from receiving unemployment benefits because she engaged in misconduct.

            This court will reverse a ULJ’s decision when it reflects an error of law, is “arbitrary or capricious,” or the findings are “unsupported by substantial evidence in view of the entire record.”  Minn. Stat. § 268.105, subd. 7(d) (2006).  Minnesota courts have defined “substantial evidence” as “(1) such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; (2) more than a scintilla of evidence; (3) more than some evidence; (4) more than any evidence; or (5) the evidence considered in its entirety.”  Minn. Ctr. For Envtl. Advocacy v. Minn. Pollution Control Agency, 644 N.W.2d 457, 466 (Minn. 2002). 

            An applicant is disqualified from receiving unemployment benefits when the applicant was discharged due to employment misconduct.  Minn. Stat. § 268.095, subd. 4(1) (Supp. 2005).  Employment misconduct is defined as “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.”  Id., subd. 6(a) (2004).  Generally, failure to follow an employer’s reasonable policies and requests amounts to employment misconduct.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  But conduct that is inefficient, inadvertent, simply unsatisfactory, or poor performance due to inability or incapacity is not misconduct.  Minn. Stat. § 268.095, subd. 6(a).

            Whether an employee engaged in conduct disqualifying the employee from unemployment benefits is a mixed question of law and fact.  Schmidgall, 644 N.W.2d at 804.  Whether the employee committed an act alleged to be misconduct is a fact question, but whether that act amounts to misconduct is a question of law reviewed de novo.  Id.

            Adam argues that her conduct does not amount to disqualifying misconduct, but rather her actions were either inefficient, inadvertent, simply unsatisfactory, or the result of poor performance due to inability or incapacity.  She contends that her inadequate leadership skills resulted in her termination and that poor leadership is not misconduct.  See Bray v. Dogs & Cats Ltd. (1997), 679 N.W.2d 182, 185 (Minn. App. 2004) (holding that a manager’s negligent or indifferent conduct did not demonstrate a substantial lack of concern for the employment).

            The ULJ did not disqualify Adam for being a poor leader.  The ULJ found that Adam knew that the restaurant was unacceptably dirty, yet she failed to ensure its cleanliness and did not “make much effort to get her staff to clean as required.”  Adam’s failure, according to the ULJ, amounted to disqualifying employment misconduct, and we agree.

The record shows that the ongoing cleanliness problem and Adam’s continued failure to address the issue despite repeated warnings are more than inefficiency, inadvertence, simple unsatisfactory conduct, or poor performance due to inability or incapacity.  Adam’s past performance as manager shows that she has the capability of being a successful manager and maintaining a clean restaurant.  Adam was repeatedly warned about the restaurant’s condition for more than a year, yet she did little to address the problem.  And even after she created the cleaning checklists, she regularly failed to ensure that the other employees completed the tasks.  Additionally, Adam’s alleged knee injury that restricted prolonged standing does not show that she was incapable of ensuring the restaurant’s cleanliness.

Therefore, the record shows that Adam was “up to the job” but continually neglected her duties, despite repeated warnings.  Adam’s conduct adversely affected the restaurant and “displays clearly a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee.”  Minn. Stat. § 268.095, subd. 6(a).