This opinion will be unpublished and

may not be cited except as provided by

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




Daina J. Antanaitis,



Piragis Northwoods Co., Inc.,


Commissioner of Economic Security,


Filed January 26, 1999


Harten, Judge

Department of Economic Security

Agency File No. 1444UC98

Thomas W. Reed, 11 E. Sheridan Street, Ely, MN 55731 (for respondent Piragis)

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

Daina J. Antanaitis, P.O. Box 406, Ely, MN 55731 (relator pro se)

Considered and decided by Harten, Presiding Judge, Schumacher, Judge, and Peterson, Judge.



After respondent-employer discharged relator-employee, she filed for reemployment benefits under Minn. Stat. § 268.07 (Supp. 1997). She challenges the determination of the Commissioner of the Department of Economic Security that she was discharged due to misconduct. Because we conclude that relator exhibited a repeated pattern of disruptive behavior that continued despite a warning, we affirm the commissioner.


Relator-employee, Dana J. Antanaitis, began working for respondent-employer, Piragis Northwoods Co., Inc., in February 1993, eventually attaining the position of store manager. In 1997, relator and a co-employee buyer began to have conflicts; communication between them eventually ceased. Relator became increasingly concerned about the store inventory and blamed the buyer for stock shortages. Relator testified that she attempted to communicate with the buyer to restock the items, but her efforts were fruitless. Relator became unhappy due to constant negligence around the store, criticized her employers, and expressed her dissatisfaction to co-employees.

Relator stopped attending weekly staff meetings for one and one-half months, but resumed attendance after employer told her she must attend. Employer claimed that relator did not properly assist customers; relator testified that this was "blatantly false."

On December 9, 1997, employer warned relator about her attitude. Employer scheduled inventory to be conducted on January 1, 1998. Relator refused to attend. She sought to justify her nonattendance by explaining that it was a legal holiday, that employer had notified her after she had made personal plans, and that employer had never previously conducted an inventory on January 1. On January 9, 1998, employer discharged relator, but told relator that she was a hard worker and wonderful employee immediately after he discharged her.


We must view the findings of the commissioner "in the light most favorable to the decision, and if there is evidence reasonably tending to sustain them, they will not be disturbed." White v. Metropolitan Medical Ctr., 332 N.W.2d 25, 26 (Minn. 1983). The commissioner's determination that 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). We will affirm if the findings of fact "are not without support in the evidence" and if "the conclusion on those facts is not contrary to the statutory mandate." Id. Whether an employee was properly disqualified from receiving benefits is a question of law upon which reviewing courts remain free to exercise their independent judgment. Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).

An employee discharged for misconduct is disqualified from receiving reemployment insurance benefits. Minn. Stat. § 268.09, subd. 10(1) (Supp. 1997).

The statute defines misconduct as

[i]ntentional 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.

Id., subd. 12.[1] The employer has the burden to show that it discharged the employee due to misconduct. Marz v. Department of Employment Servs., 256 N.W.2d 287, 289 (Minn. 1977).

While relator disputes some of the evidence, the record supports the commissioner's findings of fact. There is evidence that relator's attitude was bad, that she expressed dissatisfaction to those around her, failed to attend meetings, received a final warning, and did not report for inventory. Our duty is to review the evidence to determine whether the record supports the commissioner's findings. See Colburn, 346 N.W.2d at 161. While relator may have had reasons for her behavior, the behavior undeniably occurred.

Accepting the facts as found by the commissioner, we next determine whether these facts constitute misconduct. The commissioner found, and both the commissioner and employer assert on appeal, that relator's actions were misconduct because she exhibited a repeated pattern of disruptive conduct that continued despite a warning. This is misconduct as defined by section 268.09, subd. 12; it shows a disregard of the employer's interest and of the standards an employer has a right to expect. See Booher v. Transport Clearings, 260 N.W.2d 181 (Minn. 1977) (employee's rumor-spreading and dissension after warning constituted deliberate violation or disregard of obligations to employer and thus misconduct); Feia v. St. Cloud State College, 309 Minn. 564, 244 N.W.2d 635 (1973) (employee who took offense at students' drawings and expressed this offense to everyone she could held to have committed misconduct because she showed disregard for employer's interests).

Relator disputes this and argues that her conduct instead was based on setting and maintaining high standards of professionalism. While this may have been relator's motivation, the commissioner specifically found that she exhibited disruptive conduct. That finding that is supported in the record. Whether the disruptive conduct stemmed from professionalism or from ill will, it still shows disregard for the employer's interest. We conclude that relator was lawfully disqualified from reemployment benefits under Booher and Feia. Given this conclusion, we need not address asserted application of the last straw doctrine.

Finally, relator's brief contains information outside the hearing record. We may not review this material on appeal. See Hanka v. Hardware, 343 N.W.2d 46, 48 (Minn. App. 1984). Notwithstanding the new information in relator's brief, we conclude that her appeal fails.


[1] The Minnesota Supreme Court has defined misconduct in part as

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 * * *.

Tilseth v. Midwest Lumber Co., 295 Minn. 372, 375, 204 N.W.2d 644, 646 (1973) (quotations omitted). There are no cases concerning whether the 1997 amendment to section 268.09 has affected this definition and the subsequent caselaw upon which it relies. Because the statutory language is almost identical to some of the language in Tilseth, we conclude that precedent based upon those parts of Tilseth remains viable.