This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-96-951

Deborah A. Rice,

Relator,

vs.

Lutheran Social Services of Minnesota,

Respondent,

and

Commissioner of Economic Security,

Respondent.

Filed November 5, 1996

Affirmed

Peterson, Judge

Department of Economic Security

File No. 9224 UC 95

Deborah A. Rice, 7590 Fifteenth Street N.W., Willmar, MN 56201 (Pro Se)

Penelope Phillips, Felhaber, Larson, Fenlon and Vogt, 4200 First Bank Place, 601 Second Avenue South, Minneapolis, MN 55402 (for Respondent Lutheran Social Services of Minnesota)

Kent E. Todd, Minnesota Department of Economic Security, 390 North Robert Street, St. Paul, MN 55101 (for Respondent Commissioner of Economic Security)

Considered and decided by Davies, Presiding Judge, Klaphake, Judge, and Peterson, Judge.

U N P U B L I S H E D O P I N I O N

PETERSON, Judge

Relator Deborah A. Rice challenges the Commissioner's representative's determination that she was disqualified from receiving reemployment insurance benefits because she was discharged from employment for misconduct. We affirm.

FACTS

Rice worked for respondent Lutheran Social Services of Minnesota (LSS) from November 1987, until August 30, 1995, first as a bookkeeper and later as a debt management specialist. On August 1, 1995, one of Rice's coworkers, Nancy Collins, asked Rice for help with a job. Collins said she asked Rice to explain the job procedures, but Rice refused and acted so upset that Collins began to cry. Collins reported the incident to Rice's supervisor, Marlene Distad.

Later the same day, Distad called Rice into her office to discuss the incident. Distad testified that Rice became angry and refused to explain what had happened; Rice said there had been nothing but problems with Distad; Rice swore and said she would go above Distad's head; and Rice eventually stormed out of Distad's office. Distad also testified that Rice had an uncooperative attitude, failed to comply with scheduling requirements set forth by Distad, and, on several occasions, had outbursts of anger with Distad or other employees.

Rice also called Collins at home that evening. Collins testified that Rice said she felt overworked and unappreciated and asked why Collins went behind her back and complained to Distad. Collins said she suggested that she, Distad, and Rice meet to discuss Rice's concerns, but Rice said that she was too busy and that she would talk to another supervisor, LuAnn Hegland. When Collins tried to end the phone call, Rice hung up on her.

On August 3, 1995, Cheryl Evans, an employee at LSS's Marshall office, contacted Distad about Rice. Evans said she had asked that copies of all correspondence regarding Marshall clients' accounts be sent to the Marshall office. Evans said that on July 18, 1995, she received a phone call from a client about a letter from Rice. The Marshall office had not received a copy of the letter. According to Evans, when she called Rice to find out why, Rice said she already had many responsibilities and did not know why an additional copy was necessary. Evans described Rice's attitude as upset and unaccommodating. After a conversation that Evans felt was longer than necessary, Rice agreed to send the Marshall office copies of correspondence.

On August 14, 1995, LSS notified Rice that she would be suspended from August 15 through August 17, 1995, because of the incident regarding Collins, complaints from a counselor in the Marshall office and a Marshall client, and several previously noted incidents. The suspension notice stated that when Rice returned to work, she was to meet with Distad and Hegland and provide them with written documentation as to how she intended to correct her behavior. The suspension notice also stated that "any further incidents of insubordination will be grounds for immediate termination." Distad testified that she also told Rice that her employment would be terminated if her performance did not improve.

When Rice returned to work, she did not submit a plan for correcting her behavior. Instead, on August 22, 1995, Rice wrote a memo to Hegland, disputing that her behavior had been inappropriate. Rice claimed her suspension had resulted from misunderstandings caused by Distad's lack of communication and suggested steps to minimize future misunderstandings. Rice stated that she could not submit a plan to correct her behavior because she felt she performed her "work in a professional and friendly manner at all times." The memo stated, "I am hereby appealing my suspension." Distad testified that on about August 29, 1995, she advised Rice that the memo was an unsatisfactory appeal and provided her with the proper form for filing an appeal.

Distad testified that on August 30, 1995, she went to talk to Rice about setting up a meeting time to discuss the plan for correcting Rice's behavior, which Rice had not yet submitted. Distad's testimony indicates that she wanted to schedule the meeting for sometime that day but would have scheduled it for a later date if Rice had been cooperative. Distad testified that Rice said she would not meet with Distad under any circumstances. After talking to human resources personnel, Distad and Hegland went to Rice's office. Distad testified that Rice said she would not meet with Hegland and Distad unless she had someone present there; Distad read Rice a notice stating that if she did not set a time to meet with Distad and Hegland, it would be cause for immediate termination; and Rice then stood up, said she would not meet with Distad or Hegland, opened her office door and walked out. LSS discharged Rice from employment effective August 30, 1995. The termination letter stated that Rice was discharged because she was unwilling to submit a performance improvement plan and because she refused to meet with Hegland and Distad.

The Commissioner's representative found that on August 30, 1995, Distad and Hegland went to Rice's office to discuss scheduling a meeting about Rice submitting a performance improvement plan, but Rice

refused to discuss a time to schedule a meeting. The supervisor informed [Rice] that if she refused to set a time to meet, she would be terminated for insubordination. [Rice] said she was not going to meet and [Rice] then got up and left the room. The employer terminated [Rice] on August 30, 1995.

D E C I S I O N

1. An individual who is discharged from employment for misconduct is disqualified from receiving reemployment insurance benefits. Minn. Stat. § 268.09, subd. 1(b) (Supp. 1995). Whether an employee committed misconduct is a mixed question of fact and law. Colburn v. Pine Portage Madden Bros., 346 N.W.2d 159, 161 (Minn. 1984). This court will affirm the Commissioner's representative's factual findings "if there is evidence reasonably tending to sustain those findings," but the ultimate issue of disqualification is a question of law subject to de novo review. Ress v. Abbott Northwestern Hosp. Inc., 448 N.W.2d 519, 523 (Minn. 1989).

An employee's refusal to comply with an employer's request constitutes misconduct when the request was reasonable and did not impose an unreasonable burden on the employee. Soussi v. Blue & White Serv. Corp., 498 N.W.2d 316, 318 (Minn. App. 1993). What is reasonable depends on the circumstances of each case. Id.; see also Tilseth v. Midwest Lumber Co., 295 Minn. 372, 374-75, 204 N.W.2d 644, 646 (1973) (defining misconduct).

Rice argues that she was discharged from employment because she refused to have the meeting with Distad and Hegland about her performance improvement plan on August 30, 1995, and that she had valid reasons for not wanting to meet with them on that date. But the Commissioner's representative found that Rice refused even to discuss scheduling a time for the meeting. The evidence supports the Commissioner's representative's finding. Distad's testimony indicates she would have been willing to schedule the meeting for a later date.

"An employee has the duty to meet with the employee's supervisor to discuss complaints regarding the employee's job performance." Snodgrass v. Oxford Properties, Inc., 354 N.W.2d 79, 80 (Minn. App. 1984). In light of the evidence about Rice's attitude and behavior towards other employees, LSS's request that Rice set a time to meet with Hegland and Distad to discuss Rice submitting a performance improvement plan was reasonable. The Commissioner's representative properly determined that Rice was terminated for misconduct. See id. at 79-80 (employee committed misconduct when she refused to report to her supervisor's office to discuss complaints about her job performance and later told a manager that she would not talk to or take orders from her supervisor).

2. Rice argues that even if she committed misconduct, she is entitled to receive reemployment insurance benefits because LSS did not follow its internal appeals process. See Hoemberg v. Watco Publishers, Inc., 343 N.W.2d 676, 678-79 (Minn. App. 1984) (when employer failed to follow disciplinary procedures set forth in employee handbook, which required three warnings before termination, employee's violation of a work rule did not constitute misconduct), review denied (Minn. May 15, 1984).

Because Rice did not raise this issue before the Commissioner's representative, she may not raise it on appeal. See Wesley v. Durance Corp., 363 N.W.2d 858, 859 (Minn. App. 1985) (issue not raised before Commissioner may not be raised for first time on appeal).

Nonetheless, we note that even if Rice properly appealed her suspension, she does not cite to any LSS rule that requires disciplinary proceedings against an employee to be suspended while an appeal is pending. Distad testified that when an employee appeals a decision like a suspension, the appeal does not affect disciplinary proceedings, and the employee still must comply with disciplinary measures. Absent evidence that LSS violated a specific condition of employment, LSS's termination of Rice's employment while her appeal was pending did not entitle Rice to receive reemployment insurance benefits. See Herreid v. Moore Data Management Servs., 392 N.W.2d 613, 615 (Minn. App. 1986) (declining to follow Hoemberg when employer's general attendance policy did not create specific condition of employment). The Commissioner's representative properly determined that Rice was disqualified from receiving reemployment insurance benefits.

Affirmed.