This opinion will be unpublished and

may not be cited except as provided by

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




Matthew E. Ryan,



Minneapolis Athletic Club,


Commissioner of Economic Security,


Filed May 5, 1998


Huspeni, Judge

Department of Economic Security

Agency File No. 3586UC97

Matthew E. Ryan, 3618 10th Ave. S., Minneapolis, MN 55407 (pro se relator)

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

Considered and decided by Shumaker, Presiding Judge, Huspeni, Judge, and Crippen, Judge.



Relator challenges the finding of the Commissioner of Economic Security's representative that he was discharged for misconduct. Because we find no error in the representative's decision, we affirm.


Relator Matthew E. Ryan began working as a lunch waiter for respondent Minneapolis Athletic Club (MAC) in 1987. In October 1996, MAC decided to rearrange its work schedule and accepted bids for the new shifts based on employees' seniority. Employees with less seniority than relator received the schedule they had bid on. Relator did not submit a bid, but instead notified MAC that he was working another job in the evenings and provided MAC with the hours that he would be available to work.

On March 3, 1997, MAC assigned relator to the 6:00 a.m. to 2:00 p.m. shift because it was the only shift that remained after all other employees had submitted their bids. Between March 7 and March 18, relator did not work his scheduled shift and received a verbal warning, two written warnings, and two suspensions. On March 31, 1997, relator was discharged.

A claims representative from the Department of Economic Security determined that relator had been discharged for misconduct and disqualified him from receiving reemployment insurance benefits. Relator appealed and, after an evidentiary hearing, the reemployment insurance judge reversed the claims representative's decision and held that relator had been discharged for reasons other than misconduct. MAC filed an appeal with the commissioner's representative who reversed the reemployment insurance judge's decision and held that relator had been discharged for misconduct.


"On appeal, [a reviewing court] must review the decision of the Commissioner's representative, rather than that of the referee [now reemployment insurance judge]." Weaver v. Minnesota Valley Lab., 470 N.W.2d 131, 133 (Minn. App. 1991). Findings of the commissioner's representative must "be viewed in the light most favorable to the decision, and if there is evidence reasonably tending to sustain them, they will not be disturbed [on appeal]." White v. Metropolitan Med. Ctr., 332 N.W.2d 25, 26 (Minn. 1983).

The commissioner's representative held that relator had been discharged for misconduct when he repeatedly failed to report for his scheduled shift.

The intended meaning of the term "misconduct" is limited to the conduct evincing such willful and 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 of his employee, * * * or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer.

Tilseth v. Midwest Lumber Co., 295 Minn. 372, 374-75, 204 N.W.2d 644, 646 (1973).[1] "Even a single incident can be misconduct if it represents a sufficient enough disregard for the employer's expectations." Blau v. Masters Restaurant Assoc., Inc., 345 N.W.2d 791, 794 (Minn. App. 1984).

Relator argues that while he was employed at MAC he was subject to "blatant and subtle discriminatory treatment" in response to his open homosexuality and to an incident where he was sent home from work for refusing to remove an AIDS ribbon from his uniform. In addition, relator asserts that MAC breached its own policies by failing to investigate disciplinary violations and failing to follow proper procedure in handling layoffs and work schedules. Relator, however, fails to cite any specific incidents of harassment, discrimination, misconduct, or failure to follow proper procedure on the part of MAC.

Relator also argues that MAC's attempt to change his schedule to nearly full-time after ten years was unreasonable because he was already working a second job at nearly 30 hours per week. The commissioner's representative, however, found that in the four-week period between March 22, 1997, and April 19, 1997, when relator filed a claim for benefits, he reported earnings of $58, $60, $100, and $107 respectively from this second job. The commissioner's representative went on to explain:

Clearly, [relator] was working substantially less than thirty hours per week at his other job, at least during periods immediately following the application of his reemployment insurance account. While [relator] contends that his other job, while not directly interfering, would have caused him to have some less sleep, on one night a week (Thursday), again, the evidence does not show that [relator] was working as much at this other job as he has contended.

Our standard of review in reemployment insurance cases is limited. Group Health Plan, Inc. v. Lopez, 341 N.W.2d 294, 296 (Minn. App. 1983). Viewing the commissioner's representative's findings in the light most favorable to the decision, we do not find error. White, 332 N.W.2d at 25. The record supports the determination that MAC's request that relator work an expanded schedule was not so unreasonable so as to negate the finding that appellant's failure to report to work constituted misconduct.

The commissioner's representative found that relator was not subject to discrimination or retaliation, that MAC asked relator to work close to full time, that this request was reasonable, and that the schedule change did not violate relator's union contract. Judging the findings in the light most favorable to the decision, we find no error in the determination that relator was not subject to discrimination from MAC.

Likewise, the decision of the commissioner's representative that relator was discharged for misconduct is reasonably supported by the evidence. When relator failed to report for his scheduled shift, he was given a verbal warning, two written warnings, and two suspensions before being discharged. On appeal, relator presents no facts that indicate that this decision was in error.


[1] We note that the legislature has now provided a definition of misconduct that applies to conduct occurring on or after July 1, 1997. See Minn. Stat. § 268.09, subd. 12 (Supp. 1997) (defining misconduct); 1997 Minn. Laws ch. 66, § 82 (effective July 1, 1997).