This opinion will be unpublished and

may not be cited except as provided by

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




Josephine Junius,



Fairview Material Management,


Commissioner of Economic Security,


Filed June 23, 1998


Willis, Judge

Department of Economic Security

File No. 6468UC97

Stephen F. Befort, Civil Practice Clinic Supervising Attorney, Warrick Lackner, Kimberley Sobieck, Student Attorneys, University of Minnesota Law School, 190 Law Center, 229-19th Avenue South, Minneapolis, MN 55455 (for relator)

Dennis J. Merley, Felhaber, Larson, Fenlon & Vogt, P.A., 601 Second Avenue South, Suite 4200, Minneapolis, MN 55402 (for respondent Fairview Material Management)

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

Considered and decided by Huspeni, Presiding Judge, Willis, Judge, and Holtan, Judge.*

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



Relator challenges the commissioner's representative's determination that relator was discharged for misconduct. We affirm.


Relator Josephine Junius was employed at Fairview-University Medical Center in the material management department as a case cart aide, preparing instruments for surgery, from August 1995 until July 1997. In June 1997, Junius discovered that someone had caused extensive damage to the outside of her car by scratching through the paint with a key or other instrument. Junius suspected that another employee, Cynthia Hawkins, was responsible because at about the time the damage occurred, Junius saw Hawkins in the area where Junius's car was parked. Junius reported the incident both to Fairview-University Medical Center security and to the police, but neither was able to determine who scratched the car.

That night, Junius left the following voice-mail message for her supervisor, Kathy Fulks:

[I am] very angry that [Hawkins] did this to me, I am going to, it's going to be war down there in your department, and I am letting you know this now, so you just expect, but my reaction and everything from now -- to them, cause I am not letting them get away with this. I am taking this, I am going to take my report, police report and then whatever, which way I come, that's the way I am coming. I am letting you know this, I am not going to be disrespectful toward you, what they did to my car and I have got to pay for this, it's not, they are not going to get away with this. I am letting you know now that Cynthia Hawkins and -- all hell is going to be break loose in CBC, I am sorry to see it that way.

After she received the voice-mail message, Fulks told Junius to let the police handle the matter and told her not to put her job in jeopardy by threatening anyone.

At a hearing before a reemployment insurance judge, Junius testified that beginning about the time her car was damaged, Hawkins began "picking at" Junius by calling her names and "making sounds" at her. On July 2, 1997, while at work, Junius began to yell and scream at Hawkins. Twice other employees had to intervene to pull Junius away from Hawkins. Junius admitted that she told Hawkins to "watch her back." Fulks testified that another co-worker told her that the "slang words [Junius used] meant that [Junius] was going to kill [Hawkins.]" But Junius claims that she meant that Hawkins "better be on the lookout * * * because [Junius] might go behind [Hawkins's] back and scratch her car." Junius denied that she threatened Hawkins with bodily harm.

Fulks suspended Junius on July 3 and terminated her employment on July 7, 1997, on the ground that she had threatened a co-worker with bodily harm and compromised a safe work environment for other employees. An adjudicator determined that Junius was not disqualified from receiving reemployment insurance benefits because Fairview was "unable to prove willful misconduct." Fairview appealed the determination.

A reemployment insurance judge reversed the adjudicator's determination, finding that Fairview discharged Junius for misconduct that interfered with and adversely affected her employment. The reemployment insurance judge concluded that by threatening Hawkins, Junius's conduct

manifested a willful disregard of [Fairview's] interests, and a willful disregard of the standards of behavior [Fairview] has a right to expect of its employees.

Junius appealed the decision to a commissioner's representative, who affirmed the reemployment insurance judge's decision. This appeal followed.


Junius contends there is insufficient evidence to show that Fairview discharged her for misconduct. An employee who is discharged for misconduct that interferes with and adversely affects her employment is disqualified from receiving reemployment compensation benefits. Minn. Stat. § 268.09, subd. 10(1) (Supp. 1997). This court must view the commissioner's representative's findings in the light most favorable to the decision, and if there is evidence reasonably tending to sustain the findings, the court will not disturb them. Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989). Whether an employee committed disqualifying misconduct is a mixed question of fact and law. Colburn v. Pine Portage Madden Bros., 346 N.W.2d 159, 161 (Minn. 1984). But after the facts are established, the final determination of whether an employee committed misconduct is a question of law on which this court is free to exercise its independent judgment. Ress, 448 N.W.2d at 523.

The Minnesota Supreme Court has adopted the following definition of "misconduct":

the intended meaning of the term `misconduct' * * * is limited to conduct evincing such wilful 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 of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed `misconduct' * * *.

Tilseth v. Midwest Lumber Co., 295 Minn. 372, 374-75, 204 N.W.2d 644, 646 (1973) (quoting Boynton Cab Co. v. Neubeck, 296 N.W. 636, 640 (Wis. 1941)) (ellipsis in original). In 1997, the legislature amended Minn. Stat. § 268.09 (Supp. 1997) to include a definition of misconduct. 1997 Minn. Laws ch. 66, § 49. The revised statute provides that misconduct is

intentional conduct showing a disregard of:

(1) the employer's interest;

(2) the standards of behavior that an employer has the right to expect of the employee; or

(3) the employee's duties and obligations to the employer. Misconduct also includes negligent conduct by an employee demonstrating a substantial lack of concern for the employment. Inefficiency, inadvertence, simple unsatisfactory conduct, or poor performance as a result of inability or incapacity are not misconduct.

Minn. Stat. § 268.09, subd. 12. This court has not addressed the issue of whether the amendment codifies the supreme court's definition of misconduct in Tilseth, thereby adopting the body of subsequent caselaw based on the Tilseth definition. We need not make that determination here because the evidence supports the conclusion that Junius engaged in misconduct as defined either by Tilseth or section 268.09, subdivision 12.

Because misconduct disqualifies an employee from receiving reemployment insurance benefits, it is narrowly construed. Prickett v. Circuit Science, Inc., 518 N.W.2d 602, 604 (Minn. 1994). In determining whether an employee has committed disqualifying misconduct under Tilseth, this court has considered the following factors:

(1) whether an employee deliberately violated standards of behavior which the employer has a right to expect of its employee, (2) whether an employee's conduct adversely affected the business or other [employees'] morale, and (3) whether an employee ignored past warnings.

Ress, 448 N.W.2d at 524. Even a single incident can constitute misconduct. Colburn, 346 N.W.2d at 161.

Junius contends that there is insufficient evidence to show that she threatened Hawkins with bodily harm because the evidence was based on unreliable hearsay. But hearsay evidence is specifically allowed in a reemployment insurance hearing "if it is the type of evidence on which reasonable, prudent persons are accustomed to rely in the conduct of their serious affairs." Minn. R. 3310.2922 (1997); see also Trebelhorn v. Minneapolis Cable Syst., Inc., 380 N.W.2d 237, 239 (Minn. App. 1986) (finding hearsay evidence sufficient to sustain commissioner's representative's denial of reemployment benefits).

Furthermore, a threat of bodily harm is not necessary to support the conclusion that Junius engaged in misconduct. She had previously violated standards of behavior that her employer had the right to expect of her and threatened to affect Fairview's business adversely by leaving a voice-mail message for Fulks threatening that "all hell [would] break loose" in the department. Further, Junius ignored Fulks's warning to let the authorities handle the situation and admitted to threatening to do damage to Hawkins's car.

Similarly, applying the standards of section 268.09, subdivision 12, the record shows that Junius's conduct showed disregard of her employer's interest, the standards of behavior her employer had a right to expect of her, and her duties and obligations to her employer when she left the voice-mail message for Fulks and threatened Hawkins on July 2. We therefore conclude that the evidence supports the commissioner's representative's finding that Junius engaged in misconduct under either Tilseth or section 268.09, subdivision 12.

Junius argues that there was sufficient evidence for the commissioner's representative to conclude that her conduct falls under the "hot-headed incident" exception and therefore does not constitute misconduct. Junius did not argue this issue either at the hearing or in her appeal to the commissioner's representative; therefore we do not address it. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (stating that appellate courts refuse to address issues and theories not raised or decided below).