This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat 480A.08, subd. 3 (1996)

STATE OF MINNESOTA
IN COURT OF APPEALS
C7-98-466

James B. Chamberlain,
Relator,

vs.

American Red Cross National Testing Laboratory,
Respondent.

Filed August 18, 1998
Affirmed
Crippen, Judge

Department of Economic Security
File No. 8568UC97

James B. Chamberlain, 4512A Cinnamon Ridge Trail, Eagan, MN 55122-2374 (pro se relator)

Kent E. Todd, 390 North Robert Street, St. Paul, MN 55101 (for respondent commissioner)

Richard H. Bend, Bend & Ellingson, Suite 700 St. Paul Building, Six West Fifth Street, St. Paul, MN 55102-1420 (for respondent employer)

Considered and decided by Davies, Presiding Judge, Crippen, Judge, and Harten, Judge.

U N P U B L I S H E D   O P I N I O N

CRIPPEN, Judge

The commissioner's representative determined that respondent American Red Cross National Testing Laboratory discharged relator James Chamberlain due to misconduct that disqualifies him from receiving reemployment insurance benefits. We affirm.

FACTS

In November 1994, relator began work as a viral laboratory instructor for respondent. On September 15, 1997, relator was discharged after he walked out of a meeting with his supervisor when told that he would not be allowed to have a person of his choice in attendance. The purpose of the meeting was to discuss a negative performance review and a deviations analysis. (1) Later in the day, relator again refused to meet with his supervisor.

Six months earlier, relator walked out of another meeting. During the course of this meeting he became upset and at one point crawled on his knees to respondent's administrative director, asking if the director wanted him to kiss his feet. He explained that this incident occurred during a discussion about the low morale in the department and that his attendance at the meeting was a part of his ongoing good faith attempt to improve employee morale.

Following his discharge, relator filed for and was denied reemployment insurance benefits by a claims representative. Prior to a hearing before a reemployment insurance judge, relator spoke with an appeals examiner about the number of witnesses and the amount of evidence he could present at the hearing. After being told that the burden of proof was on the employer and that all he needed to do was appear and testify, relator substantially shortened his subpoena list. The reemployment insurance judge, determining that relator was discharged for misconduct, held that relator was disqualified and the commissioner's representative affirmed the judge's decision.

D E C I S I O N

If the evidence reasonably supports the commissioner's findings, we must affirm them, but we are not bound by the commissioner's conclusion of law. McGowan v. Executive Express Transp. Enters., Inc., 420 N.W.2d 592, 594 (Minn. 1988).

1. Merits of Misconduct Determination.

Normally, an employee is entitled to reemployment insurance benefits after being discharged, unless the discharge was for misconduct that "interfered with and adversely affected that employment." Minn. Stat. 268.09, subd. 10 (Supp. 1997). Misconduct is defined as intentional conduct that evinces 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." Id., subd. 12 (Supp. 1997). While inefficiency, inadvertence, simple unsatisfactory conduct, or poor performance resulting from inability or incapacity are not included, an employee's negligent conduct that demonstrates a substantial lack of concern for employment falls within the term. Id.

Relator admits the facts in the case but suggests that they do not amount to misconduct because (1) he was acting in respondent's best interests since he was attempting to improve the department morale; (2) his conduct was not unreasonable and falls within the isolated, "hotheaded" exception; and (3) there was no adverse impact on his employer.

Relator's arguments lack merit. His belief that he was furthering his employer's interest is not sufficient to mitigate his disqualifying misconduct. Soussi v. Blue & White Serv. Corp., 498 N.W.2d 316, 318 (Minn. App. 1993). And there is no showing that he engaged in a single, hotheaded incident. Windsperger v. Broadway Liquor Outlet, 346 N.W.2d 142, 145 (Minn. 1984) ("An isolated, hotheaded incident which does not interfere with the employer's business is not misconduct."). Although the representative was primarily focusing on relator's refusal to comply with his employer's request to attend a meeting, she was also taking into account the digression of relator's behavior. See Flannigan v. Meadow Lane Health Care Ctr., 347 N.W.2d 852, 853 (Minn. App. 1984) (refusal to discuss an employer's complaints, if coupled with a clear progression of conduct evincing disregard for the job, may constitute misconduct).

As the representative stated, respondent's request that relator meet with his supervisor to discuss behavior and performance concerns was reasonable. See Soussi, 498 N.W.2d at 318 (if an employer's request is reasonable and does not impose an unreasonable burden on the employee, refusal to comply usually constitutes misconduct).

Finally, relator's refusal to meet with his supervisor about performance concerns and documentation of a procedural deviation has an adverse effect on his 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).

2. Burden of Proof.

Relator also contends that the representative shifted the burden of proof to him and ignored the evidence he presented. The employer has the burden of proving that an employee has committed misconduct, Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989), and there is no merit to relator's assertion that the burden of proof was shifted to him. The representative recognized that respondent had the burden to prove misconduct and specifically stated that respondent had sustained its burden.

The commissioner's representative duly considered the evidence presented by relator. The representative noted relator's claim that the reasons respondent gave for the discharge were a pretext for discharging him for his pro-union activities. Recognizing that respondent may have been looking for a reason to fire relator, the representative concluded that relator's "insubordinate behavior provided the employer with ample grounds to discharge the claimant for misconduct." The representative's stated reasons for her decision demonstrate that she properly considered the evidence relator presented and simply found it unpersuasive.

3. Remand.

Finally, asserting that he would have submitted more evidence but for the erroneous information he received, relator challenges the denial of his request for a remand to introduce additional evidence. But there is no showing of prejudice: Relator had the opportunity to fully state his case at the evidentiary hearing. See Minn. R. Civ. P. 61 (harmless error rule). Moreover, we observe that the evidence that relator seeks to have admitted would only speak to his erroneous theories rather than to his misconduct. The commissioner's representative did not abuse its discretion in denying relator's request for remand. Zielinski v. Ryan Co., 379 N.W.2d 157, 161 (Minn. App. 1985) (commissioner is accorded broad discretion when determining whether to remand for additional evidence).

Affirmed.

(1) A deviations analysis is the means used by respondent for documenting a failure to follow departmental procedures.