This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






Linda D. Houston,


International Data,

Commissioner of Economic Security,


Filed July 31, 2001


Peterson, Judge



Department of Economic Security

File No. 666700


Benjamin L. Weiss, Southern Minnesota Regional Legal Services, Inc., 300 Minnesota Building, 46 East Fourth Street, St. Paul, MN  55101 (for relator)



International Data Transfer Corp., 1301 East 79th Street, Minneapolis, MN  55425-1119 (respondent)



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

Considered and decided by Toussaint, Chief Judge, Peterson, Judge, and Foley, Judge.*

U N P U B L I S H E D   O P I N I O N


            This appeal is from a decision of a representative of respondent Commissioner of Economic Security denying relator Linda D. Houston unemployment benefits because she was discharged from employment for misconduct.  We affirm.


            Respondent International Data, a security alarm monitoring company, employed Houston from March 1999 until June 15, 2000.  In August 1999, International Data promoted Houston to assistant supervisor for the third shift.  As assistant supervisor, Houston’s main responsibilities were handling difficult or complex customer calls and supervising five to seven employees.  She was also required to set an example for other employees and to support and enforce all company policies and procedures for handling telephone calls.

            The record contains a tape recording of the telephone call that resulted in Houston’s termination, but because the recording is low quality, the parties disagree about what was said during the call.  The commissioner’s representative made findings about what was said during the call, and it is undisputed that the call ended when Houston hung up on the customer.

The customer called back, very upset, and spoke to another International Data employee, who could not handle the call and transferred it to an assistant supervisor.  The assistant supervisor calmed the customer down and handled his request.  The customer made a formal complaint about Houston to International Data’s president.

            Kayla Yates, International Data’s human resources manager, testified that Houston’s handling of the call violated company policy in several respects.  First, the customer had to repeat his requests a couple of times, which meant that Houston was not listening attentively.  Making a customer repeat something is considered rude in International Data’s disciplinary ladder.  Second, Houston made a remark about the customer spelling the account name incorrectly that violated International Data’s policy requiring employees to always support customers and never speak negatively about them to other employees at the work site.  Third, there was dead air time twice during the call without any explanation by Houston to the customer.  Company policy requires an employee to inform the customer that she needs to do some work on the account and ask the customer to please hold.  Fourth, after the customer became irritated, Houston spoke rudely to him, talked over him, and used an aggressive approach in handling the call.  Company policy prohibits being rude to and talking over a customer, and Houston had received training in using a positive attitude to handle difficult customers.  Finally, Houston violated company policy by hanging up on the customer.  Some of the violations, including hanging up on, being rude to, and talking over a customer, can be grounds for immediate termination under International Data’s disciplinary ladder.


            On appeal, this court reviews the commissioner’s representative’s decision, not that of the unemployment law judge.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  This court reviews findings of fact in the light most favorable to the commissioner’s representative’s decision and will not disturb them as long as there is evidence that reasonably tends to sustain 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., Inc., 346 N.W.2d 159, 161 (Minn. 1984).  The determination whether the employee committed a particular act or acts is a question of fact.  Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  Whether the acts constitute misconduct is a question of law on which this court is “free to exercise its independent judgment.”  Ress, 448 N.W.2d at 523.

            Minn. Stat. § 268.095, subd. 6 (2000), provides:

Employment misconduct means:

            (1) any intentional conduct, on the job or off the job, that disregards the standards of behavior that an employer has the right to expect of the employee or disregards the employee’s duties and obligations to the employer; or

            (2) negligent or indifferent conduct, on the job or off the job, that demonstrates a substantial lack of concern for the employment.


            (b) Inefficiency, inadvertence, simple unsatisfactory conduct, poor performance because of inability or incapacity, or absence because of illness or injury with proper notice to the employer, are not employment misconduct.


            Citing Isse v. Alamo Rent-A-Car, 590 N.W.2d 137, 139 (Minn. App. 1999), review denied (Minn. Apr. 20, 1999), Houston correctly contends that the statutory definition of misconduct was derived from the definition of misconduct set forth by the supreme court in Tilseth v. Midwest Lumber Co., 295 Minn. 372, 374-75, 204 N.W.2d 644, 646 (1973).  Houston also correctly contends that in Isse, this court noted “that caselaw interpreting those elements of the Tilseth definition that are reflected in the statute remains good law.”  590 N.W.2d at 140 n.2.  But Houston incorrectly concludes that under the caselaw, misconduct is still

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.


Peksa v. Fairview-Southdale Hosp., 512 N.W.2d 913, 916 (Minn. App. 1994).

            Peksa was decided in 1994, and the current statutory definition of “employment misconduct” was enacted in 1999.  1999 Minn. Laws ch. 107, § 44.  The current statutory definition does not include “wilful or wanton disregard of an employer’s interests” or “deliberate violation or disregard of standards of behavior” as elements of employment misconduct.  Instead, the statutory definition requires only “intentional conduct * * * that disregards the standards of behavior that an employer has the right to expect of the employee.”  Minn. Stat. § 268.095, subd. 6.  There is no requirement that the employee intends to violate or disregard standards of behavior.  It is only necessary that the employee’s conduct be intentional and that the conduct disregards certain standards of behavior.  Consequently, any reference in Peksa to “wilful or wanton disregard” or “deliberate violation or disregard” is no longer good law.

            Houston also argues that the commissioner’s representative improperly applied an objective standard to Houston’s conduct.  Citing Fujan v. Ruffridge-Johnson Equip., 535 N.W.2d 393, 396 (Minn. App. 1995), Houston contends that misconduct can only be based on the employee’s subjective intent.  But Fujan was also decided before the current statutory definition was enacted.  As we have already explained, the statute requires only that the employee’s conduct be intentional; it does not require that the employee act with a specific intent to violate a standard of behavior that the employer has a right to expect of the employee.

            Finally, citing Mankato Lutheran Home v. Miller, 358 N.W.2d 96, 99 (Minn. App. 1984), review denied (Minn. Feb. 6, 1985), Houston argues that because her failure to follow company policy was provoked by the customer’s rude and abusive language, it was not misconduct.  Mankato Lutheran is distinguishable from this case because in Mankato Lutheran, the employee’s outburst was provoked by a supervisor.  Id.  Houston’s improper behavior was provoked by a difficult customer, and one of her main responsibilities as an assistant supervisor was handling difficult customers.

             International Data’s human resources manager testified that Houston violated company policy in several respects.  She did not listen attentively to the customer and failed to use customer service phrases to explain dead air time.  The commissioner’s representative found that Houston’s initial handling of the call led to the customer getting upset.  When the customer became angry, Houston was rude to and hung up on him instead of following the company’s procedure for handling difficult calls.  The evidence reasonably sustains the commissioner’s representative’s findings that Houston violated company policies during the phone call and that her conduct was intentional. 

            Houston argues that at most her conduct amounted to “inefficiency, inadvertence, [or] simple unsatisfactory conduct” under Minn. Stat. § 268.095, subd. 6(b).  But as an assistant supervisor, Houston’s main responsibilities were handling difficult or complex customer calls, setting an example for other employees, and supporting and enforcing all company policies and procedures for handling telephone calls.  Failing to perform specific responsibilities of her position is not merely inefficiency, inadvertence or simple unsatisfactory conduct.

            Because International Data had a right to expect Houston to perform the main responsibilities of her assistant manager position, her failure to do so constituted employment misconduct.


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