This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




Cathy Tarnowski,



Fridley Video,


Commissioner of Economic Security,


Filed April 27, 1999


Huspeni, Judge[*]

Department of Economic Security

File No. 2837UC98

Cynthia J. Atsatt, Jacqueline M. Moen, Oppenheimer Wolff & Donnelly LLP, 3400 Plaza VII, 45 South Seventh Street, Minneapolis, MN 55402 (for relator)

Joseph H. Belzer, Law Offices of Joseph H. Belzer, P.A., Post Office Box 26036, Minneapolis, MN 55426 (for respondent Fridley Video)

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

Considered and decided by Toussaint, Chief Judge, Huspeni, Judge, and Holtan, Judge.[**]


In June 1997, respondent-employer William Johnson purchased Video World. Relator Cathy Tarnowski had been the store manager of Video World since 1985. Johnson told Tarnowski to continue to manage the store as she had been managing it. Johnson was apparently unaware that Tarnowski regularly kept pet rabbits in the store. Sometime in September 1997, Johnson first encountered a rabbit roaming freely in the store. Johnson was concerned about rabbit droppings, but Johnson decided to take "a wait-and-see attitude" because the rabbits were popular with children.

In early November 1997, Johnson visited the store when Tarnowski was not there, and was alarmed to find rabbits out of their cages, roaming the store freely, and rabbit droppings throughout the store. Johnson decided the rabbits needed to go, and the next day he called Tarnowski and told her so. Johnson and Tarnowski had several discussions about the rabbits. Johnson agreed to allow Tarnowski on occasion to have sick or abandoned rabbits in the store provided she kept them contained and took them home at the end of her shift.

The record reveals two later incidents involving rabbits loose in the store. On January 18, 1998, Johnson arrived at the store to deliver a pop machine and encountered a rabbit and rabbit droppings on the floor. Tarnowski explained that a patron had recently dropped off the rabbit at the store and that the rabbit was not in the store for more than a couple hours. On February 3, 1998, a friend of Tarnowski brought a rabbit to the store. According to Tarnowski, this rabbit was not in the store for more than half an hour.

Johnson did not encounter the rabbit in the video store on February 3. Rather, Johnson arrived at the store in the early morning of February 4 and found rabbit droppings spread throughout the store. According to Johnson, he said to himself "enough is enough," changed the locks, and closed the store. Johnson decided to replace the carpet and placed a sign on the door stating "closed for remodeling." When Tarnowski and a co-worker reported to work and found the locks had been changed, they confronted Tarnowski at his other store, Fridley Video, and asked why he had changed the locks. Johnson responded that he was not running a barn and called the police.

Johnson never told Tarnowski and her co-workers that they were fired, but they assumed that all of the employees in the store had been let go. Tarnowski applied for and began receiving reemployment insurance benefits. After Johnson wrote a letter indicating that he discharged Tarnowski for misconduct, Tarnowski was disqualified from receiving benefits. A reemployment insurance judge reversed the disqualification and reinstated benefits, finding that Johnson had not discharged Tarnowski for misconduct. Johnson appealed, and the commissioner's representative reversed.


The findings of the commissioner 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." White v. Metropolitan Med. Ctr., 332 N.W.2d 25, 26 (Minn. 1983) (citation omitted). 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). A reviewing court 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 for committing misconduct under the statute is a question of law on which a reviewing court remains free to exercise its independent judgment. Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).

1. We first consider whether the evidence reasonably sustains the commissioner's representative's factual finding that Johnson discharged Tarnowski for misconduct. An employee who is discharged from employment is not disqualified from receiving benefits unless the employee was discharged because of misconduct that interfered with and adversely affected that employment. Minn. Stat. § 268.095, subd. 4(1) (1998). The employer has the burden to prove that misconduct was the reason for the employee's termination. Hansen v. C.W. Mears, Inc., 486 N.W.2d 776, 780 (Minn. App. 1992), review denied (Minn. July 16, 1992).

Tarnowski contends that she was discharged not for misconduct, but because Johnson closed the store for remodeling. She points out that all store employees were similarly discharged by the lockout and that the store was not doing well financially. The reemployment insurance judge found that Johnson discharged Tarnowski because of remodeling, not misconduct. The commissioner's representative, however, found that Johnson discharged Tarnowski "because of having rabbits in the store and because of their mess."

On appeal, this court reviews the decision of the commissioner's representative, not the decision of the reemployment insurance judge. Fujan v. Ruffridge-Johnson Equip., 535 N.W.2d 393, 395 (Minn. App. 1995) (citing Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995)). The commissioner's representative does not have to demonstrate the basis for rejecting a reemployment insurance judge's credibility determination. Tuff, 526 N.W.2d at 51.

In this case, the evidence to support the commissioner's representative's finding consists of Johnson's letter and his subsequent testimony, as well as his comment on the day of the lockout that he was not running a barn. This court does not reweigh the evidence to determine where the preponderance lies. Tuckerman Optical Corp. v. Thoney, 407 N.W.2d 491, 493 (Minn. App. 1987). Viewing the evidence in the light most favorable to the commissioner's representative's decision, the record is not without evidence to support the finding of discharge for misconduct.

2. We next consider whether Tarnowski's conduct with rabbits meets the statutory definition of misconduct as a matter of law. Misconduct is defined by statute as 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.

Minn. Stat. § 268.095, subd. 6 (1998). Misconduct sufficient to deny a former employee reemployment benefits does not arise from mere inefficiency, unsatisfactory conduct, ordinary negligence in isolated instances, or good-faith errors in judgment or discretion. Peksa v. Fairview-Southdale Hosp., 512 N.W.2d 913, 916 (Minn. App. 1994). But where an employer makes a reasonable request that does not impose an undue burden on the employee, the employee's refusal to comply with the request generally constitutes misconduct. Nieszner v. Minnesota Dept. of Jobs & Training, 499 N.W.2d 832, 839 (Minn. App. 1993).

Tarnowski argues that her conduct with the rabbits cannot constitute disqualifying misconduct because of her subjective belief that she had Johnson's grudging consent to allow sick and homeless rabbits in the store as long as they were not there too frequently and were taken home the same day. Certainly, the focal point in any analysis of whether a claimant should be disqualified from receiving reemployment insurance benefits based on misconduct must be the subjective intent of the person accused of misconduct. Fujan, 535 N.W.2d at 396.

In this case, the commissioner's representative concluded that the evidence shows Tarnowski engaged in intentional conduct showing a disregard of the employer's interests and of standards of behavior that Johnson had the right to expect. The commissioner's representative explained:

The evidence * * * shows that the claimant was allowed by the owner to have a rabbit in the store on a limited basis during her shift and the rabbit was to be in a cage or container and the claimant was to take it home at the end of her shift as long as this did not occur on a frequent basis. However, the claimant did not comply with that restriction. The evidence shows that the claimant continued to allow rabbits to roam loose in the employer's store.

Tarnowski's belief that rabbits were allowed in the store on a limited basis simply does not explain her conduct in allowing rabbits to roam loose and the resulting mess. We conclude that allowing rabbits to roam freely in disregard of Johnson's reasonable request meets the statutory definition of disqualifying misconduct.


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

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