This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Shirley M. Schmitz,



Embassy Suites Hotel,


Commissioner of Economic Security,


Filed December 30, 1997


Lansing, Judge

Minnesota Department of Economic Security

Agency File No. 2457UC97

Shirley M. Schmitz, 8909 Wentworth Avenue S., Bloomington, MN 55420 (pro se)

Embassy Suites Hotel, The Gibbens Company, P.O. Box 3930, Des Moines, IA 50322-3930 (respondent)

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

Considered and decided by Davies, Presiding Judge, Lansing, Judge, and Holtan, Judge.[*]



A discharged hotel clerk appeals the denial of reemployment insurance benefits. The undisputed record supports the conclusion of the commissioner's representative that the clerk committed misconduct by disparaging the hotel and its management in front of a hotel guest and by making sarcastic comments about a manager to another guest. We affirm.


Shirley Schmitz worked as a front desk clerk for Embassy Suites Hotel, from February 14, 1996, to February 17, 1997. Embassy discharged Schmitz for two separate employment infractions in February 1997.

The first incident occurred on February 5 when a hotel guest questioned Schmitz about food charges. Schmitz adjusted the charges and complained to the guest that she was overworked, underpaid, and the management was dirt. An Embassy trainer staying at the hotel overheard the conversation, and the guest reported Schmitz's statements to Embassy management. Schmitz was suspended and warned that she needed to change her attitude.

The second incident, less than three weeks later, involved a guest who complained about being splashed by children in the pool. Schmitz paged a manager who did not immediately respond. When the manager arrived at the front desk, Schmitz was refunding the guest's money pursuant to Embassy's one hundred percent guarantee. The manager heard Schmitz tell the guest, "I guess she is too late now." When the manager questioned Schmitz about her comment, Schmitz complained that the management was dirt. The exchange continued and the manager sent Schmitz home. Embassy discharged Schmitz for these incidents.

Schmitz applied for and was denied reemployment insurance benefits. A reemployment insurance judge affirmed the denial, and Schmitz appealed to a commissioner's representative. Schmitz now appeals the adverse determination of the commissioner's representative.


An employee discharged for misconduct is disqualified from receiving reemployment insurance benefits. Minn. Stat. § 268.09, subd. 1(b) (1996). The employer has the burden of proving by a preponderance of the evidence that an employee has committed misconduct. Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn.1989) (citing Lumpkin v. North Cent. Airlines, Inc., 296 Minn. 456, 460, 209 N.W.2d 397, 400 (1973)). Whether an employee has committed misconduct presents a mixed question of fact and law. Colburn v. Pine Portage Madden Bros., 346 N.W.2d 159, 161 (Minn. 1984). Although we defer to the commissioner's findings of fact if they are reasonably supported by the record, we apply de novo review to whether the conduct constitutes misconduct. Smith v. Employers' Overload, 314 N.W.2d 220, 221 (Minn. 1981).

The supreme court defines misconduct as "conduct evincing such willful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect." Tilseth v. Midwest Lumber, 295 Minn. 372, 374-75, 204 N.W.2d 644, 646 (1973). Factors relevant to determining if denial of benefits for misconduct is appropriate include: (1) whether an employee intentionally violated standards of behavior the employer had a right to expect, (2) whether the employee's conduct adversely affected the business or other workers' morale, and (3) whether an employee ignored past warnings. Id. at 524.

The testimony at the hearing demonstrated that Schmitz disparaged Embassy and its management in front of guests and other Embassy employees. Embassy had a right to expect Schmitz, a front desk clerk, to be respectful of Embassy in front of its guests. An employee's negative comment about an employer made to a customer has an obvious adverse effect on the employer's interest. Auger v. Gillette Co., 303 N.W.2d 255, 257 (Minn. 1981) (whether employee's actions are in disregard of employer's interest varies with particular job). Schmitz was suspended for her comments and warned that she needed to improve her attitude. Less than three weeks later, while handling another customer complaint, Schmitz treated a manager rudely. These incidents constitute misconduct. See Booher v. Transport Clearings of Twin Cities, Inc., 260 N.W.2d 181, 183 (Minn. 1977) (disregarding a previous warning may lead to a finding of misconduct).

In her informal brief, Schmitz denies calling the management dirt and alleges she did not intend to be rude to the manager. But Schmitz failed to appear before the reemployment insurance judge, and thus her statements are not properly part of the record and may not be considered on review. See Plowman v. Copeland, Buhl & Co., 261 N.W.2d 581, 583 (Minn. 1977) (appellate court reviewing decision of commissioner's representative may not base its decision on matters not in evidence).


[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.