This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
Douglas G. Williams,
Department of Employment
and Economic Development,
Filed June 19, 2007
Department of Employment and Economic Development
File No. 5474 06
Douglas G. Williams,
Brooklyn Center Motors LLC,
Lee B. Nelson, Linda A. Holmes, Minnesota Department of Employment and Economic Development, First National Bank Building, 332 Minnesota Street, Suite E200, St. Paul, Minnesota 55101-1351 (for respondent Department)
Considered and decided by Dietzen, Presiding Judge; Randall, Judge; and Hudson, Judge.
U N P U B L I S H E D O P I N I O N
Relator Douglas Williams worked as a car detailer for Brooklyn Center Motors, LLC. On March 29, 2006, relator was detailing deliveries (recently purchased cars) when the lot manager told him that the sales manager wanted relator to clean up litter from the premises. Relator responded by stating that he was occupied, and that the sales manager could go “f-ck himself.” The lot manager recited relator’s latter comment to the sales manager, who discharged relator for insubordination.
Relator established a benefits account with the Minnesota Department of Employment and Economic Development (DEED). In his benefits application, relator claims that he acted out of “frustration,” but he never expected the lot manager to actually relay the comment. A DEED adjudicator determined that relator was disqualified from receiving benefits because he was discharged for employment misconduct. Relator appeals.
After the evidentiary hearing, the ULJ found that (1) relator’s job duties included detailing deliveries and cleaning up around the premises, and (2) a preponderance of the evidence showed that relator “refused the direct order of a supervisor . . . and indicated such refusal through his actions and language.” The ULJ concluded that although profanity may be used in the workplace, there was “insufficient testimony or evidence that use of profane, foul or abusive language directed toward a supervisor was a common or accepted practice.” The ULJ did not find credible relator’s claim that he acted in jest. Ultimately, the ULJ concluded that relator’s “foul statement made to one supervisor toward the supervisor directing him to perform an assigned task and his failure to perform the task he believed he was to perform immediately, constitutes insubordination which is misconduct.”
Relator requested reconsideration, arguing that his actions were not insubordination because management had established that his top priority was detailing deliveries. The ULJ affirmed its prior decision stating that relator “fails to offer any new evidence that was not or could not have previously been heard . . . to justify reopening or reversing the [prior] decision.” This certiorari appeal follows.
D E C I S I O N
Relator challenges the ULJ’s decision that he is disqualified from receiving unemployment benefits, arguing that the ULJ erred as a matter of law by concluding that his actions amounted to employment misconduct.
reviewing a ULJ’s decision, this court may reverse or modify if the decision is
unsupported by substantial evidence, arbitrary and capricious, or affected by
an error of law. Minn. Stat. § 268.105,
subd. 7(d) (2006). Whether an employee
committed employment misconduct that disqualifies him or her from unemployment
benefits is a mixed question of fact and law.
Schmidgall v. FilmTec Corp.,
644 N.W.2d 801, 804 (
An applicant for unemployment
benefits is disqualified if “the applicant was discharged because of employment
misconduct.” Minn. Stat. § 268.095,
subd. 4(1) (2006). “A discharge from
employment occurs when any words or actions by an employer would lead a
reasonable employee to believe that the employer will no longer allow the
employee to work for the employer in any capacity.”
employee can commit misconduct by refusing to comply with an employer’s
reasonable requests and policies.” Bray v. Dogs & Cats Ltd., 679 N.W.2d
182, 184 (
Here, it is uncontested that relator (1) refused a direct order to perform an assigned job function, and (2) intentionally expressed his refusal by using profane and abusive language aimed at his supervisor. Although the record shows that the request might have inconvenienced relator, there is no evidence tending to prove that the request placed an unreasonable burden upon relator. Accordingly, we conclude that relator’s conduct deviated from the reasonable standards of behavior his employer had a right to expect from its employees.
“a single incident that does not have a significant adverse impact on the
employer . . . [is] not employment misconduct” Minn. Stat. § 268.095, subd. 6(a). Neither the relator nor the ULJ address this
issue, but respondent addresses this issue in its brief. Generally, issues not briefed on appeal are
deemed waived. Melina v. Chaplin, 327 N.W.2d 19, 20 (
requires consideration of this issue. The
ULJ has a duty to “ensure that all relevant facts are clearly and fully
determining whether an employee’s conduct had an adverse impact on the
employer, courts are to examine the conduct in the context of the employee’s
responsibilities. Skarhus v. Davanni’s, Inc., 721 N.W.2d 340, 344 (
Here, respondent argues that use of “profane and obscene” language while refusing to perform a task within the employee’s job description has a significant adverse impact on its ability to “get necessary job functions performed.” But relator’s primary responsibility was detailing cars; thus his refusal to clean up litter did not significantly impact the employer’s ability to assign an essential function of the job to relator. Nor did relator’s conduct constitute theft or mishandling of money. Furthermore, respondent offered no evidence that relator’s conduct had an adverse impact upon its operations. And finally, there is no evidence that any other co-workers heard relator’s comment other than the lot manager, or that the lot manager’s or the sales manager’s authority had been abrogated. Based on the record, we conclude that relator is not disqualified from receiving unemployment insurance benefits because his conduct was a single incident that did not have a significant adverse impact on the employer.