This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






Clifford D. Morse,





GMAC Mortgage Corporation,



Commissioner of Economic Security,



Filed January 14, 2003


Kalitowski, Judge


Department of Economic Security

File No. 9761 01


Clifford D. Morse, 16979 Honeysuckle Lane, Eden Prairie, MN 55346-2242 (pro se relator)


GMAC Mortgage Corporation, P.O. Box 283, St. Louis, MO 63166-0283 (respondent)


M. Kate Chaffee, Department of Economic Security, 390 North Robert Street, St. Paul, MN 55101 (for respondent Commissioner of Economic Security)


            Considered and decided by Harten, Presiding Judge, Kalitowski, Judge, and Klaphake, Judge.

U N P U B L I S H E D   O P I N I O N


Relator Clifford D. Morse challenges the decision of the representative of the Commissioner of Economic Security that relator was not entitled to unemployment benefits because he was discharged from employment for misconduct.  We affirm.



An employee discharged for misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4(1) (2000).  Whether an employee has committed employment misconduct presents a mixed question of fact and law.  Colburn v. Pine Portage Madden Bros., Inc., 346 N.W.2d 159, 161 (Minn. 1984).  Accordingly, we will affirm the determination of the commissioner’s representative if the findings are supported by the evidence and if the conclusions of law are not contrary to law.  Id.  The factual findings of the commissioner’s representative are “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. Metro. Med. Ctr., 332 N.W.2d 25, 26 (Minn. 1983).

            Employment misconduct is defined by statute as:

(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.

Minn. Stat. § 268.095, subd. 6(a) (2000).  The statute also states that misconduct does not include

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 * * * .


Id., subd. 6(b).

            An employee’s “knowing violation of an employer’s policies, rules, or reasonable requests constitutes misconduct.”  Montgomery v. F & M Marquette Nat’l Bank, 384 N.W.2d 602, 604 (Minn. App. 1986), review denied (Minn. June 13, 1986).  A good-faith misunderstanding of rules or policies does not constitute misconduct.  Tuckerman Optical Corp. v. Thoeny, 407 N.W.2d 491, 493 (Minn. App. 1987).

            Relator was employed as a district manager for GMAC Mortgage (GMAC) from August or September of 1998 until July 2, 2001.  During his employment, relator became involved in third-party-origination (TPO) relationships.  The third parties were unrelated to GMAC, and they offered GMAC products to their customers.  The commissioner’s representative determined that relator substituted his own judgment for that of his supervisor by continuing to operate under unapproved TPO agreements after his supervisor told him to stop.  Therefore, the commissioner’s representative concluded that relator engaged in employment misconduct and was not entitled to unemployment benefits. 

            Although disputed by relator, the commissioner’s representative’s findings are reasonably supported by the evidence.  Relator testified that his supervisor told him to end the unapproved agreements but that he decided he could not legally do so.  Relator further testified that he did not mention his legal concerns to his supervisor.  Rather, he continued operating under the unapproved agreements.

            Thus, the record supports the finding that relator’s supervisor told him to stop operating under the unapproved agreements, and he did not.  Relator’s supervisor also specifically told him that no third party should be paid until new, approved agreements were in place.  Relator admitted that third parties were paid, notwithstanding his supervisor’s directive.

            We reject relator’s argument that his supervisor’s request was unreasonable on the ground that relator could not legally discontinue the unapproved TPO agreements.  Relator never disclosed his legal concerns to his supervisor, and his supervisor’s request to stop operating under the unapproved agreements was clear.  Relator’s intentional disregard of his supervisor’s request constituted misconduct.

            The commissioner’s representative also determined that relator committed disqualifying misconduct when he hired a consultant without the requisite approval from his supervisor, continued to maintain the relationship after being told to terminate it, and did not tell his supervisor that the relationship existed.

Although relator argues that he was authorized to retain independent consultants for his branch, relator’s authority to hire consultants independently was addressed in an earlier written warning received by relator from his supervisor that stated:

You assured us that going forward, you will never have another individual perform services with your branch if he or she is not hired as a [GMAC] employee or consultant.  * * *, you are fully aware that [your supervisor] must approve all candidates for your office before they are hired.


            Thus, pursuant to the written warning, relator was required to obtain his supervisor’s approval before hiring anyone, whether employee or consultant.  By continuing to retain the consultant, relator disregarded a direct instruction from his supervisor and, therefore, engaged in misconduct.  See Montgomery, 384 N.W.2d at 604 (discussing that failure to follow the employer’s instructions constitutes misconduct).


Relator argues that the notice of appeal by the employer of the Department of Economic Security’s determination that relator was not disqualified from receiving unemployment benefits was fatally defective and should have been denied as a matter of law because neither GMAC nor its attorney signed the appeal letter.  We disagree.

            Minn. R. 3310.2904 (2001) states that “[a]n appeal must * * * be signed by the appealing party or an authorized representative * * * .”  Here, the appeal was signed by The Frick Company, an agent empowered to act on behalf of GMAC.  Because Minnesota law allows an authorized representative to sign an appeal on behalf of an involved employer, GMAC’s appeal was not defective.


            Relator also argues that the appeal filed by GMAC was untimely.  We disagree.  According to Minnesota law, a timely appeal of a determination must be filed “within 30 calendar days after [the] mailing” of the determination.  Minn. Stat. § 268.101, subd. 2(e) (2000).  Moreover, the statutory method for computing time periods provides, in pertinent part, that:

[w]here the performance or doing of any act, duty, matter, payment, or thing is ordered or directed, and the period of time or duration for the performance or doing thereof is prescribed and fixed by law, the time, * * * shall be computed so as to exclude the first and include the last day of the prescribed or fixed period or duration of time.  When the last day of the period falls on Saturday, Sunday or a legal holiday, that day shall be omitted from the computation.


Minn. Stat. § 645.15 (2000).  Additionally, Minn. R. 3310.2903 (2000) provides that for appeals filed by mail, “the date of filing is the postmark date.”

            Here, the determination of nondisqualification was dated July 27, 2001, and the Frick Company appealed on behalf of GMAC by a letter dated August 27, 2001.  Relator contends that the appeal letter may have been postmarked later than August 27, 2001, because the commissioner neglected to turn over to relator, per relator’s request, the envelope that the appeal was mailed in.  But the commissioner included a photocopy of the envelope with his brief.  The postmark on the envelope is dated August 27, 2001, the same date as the appeal letter.  Thus, any error by the commissioner for failing to turn over the envelope was harmless.  See Minn. R. Civ. P. 61 (harmless errors must be disregarded).

Using the method prescribed by statute, the thirtieth day after July 27, 2001, was August, 26, 2001, which was a Sunday.  Pursuant to statute, Sunday is omitted from the computation.  Thus, filing the appeal on Monday August, 27, 2001, was timely.