may not be cited except as provided by
Minn. Stat. §480A.08, subd. 3 (2002).
IN COURT OF APPEALS
Northeast Regional Catholic School,
Commissioner of Economic Security,
Department of Economic Security
File No. 167602
Eric D. Satre, Connor, Satre & Schaff, L.L.P., 925 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN 55402 (for relator)
Penelope J. Phillips, Janet C. Ampe, Felhaber, Larson, Fenlon & Vogt, P.A., 225 South Sixth Street, Suite 4200, Minneapolis, MN 55402-4302 (for respondent Northeast Regional Catholic School)
M. Kate Chaffee, Lee B. Nelson, Minnesota Department of Economic Security, 390 North Robert Street, St. Paul, MN 55101 (for respondent Commissioner of Economic Security)
Considered and decided by Peterson, Presiding Judge, Harten, Judge, and Poritsky, Judge.*
A representative of respondent Commissioner of Economic Security determined that relator Dale Johannessen is disqualified from receiving unemployment benefits because he was discharged from employment for employment misconduct. In this appeal from the commissioner’s representative’s decision, Johannessen argues that no misconduct occurred. We affirm.
Johannessen was a custodian at respondent Northeast Regional Catholic School. He reported directly to the school principal, Rebecca Gustafson. On the morning of November 16, 2001, Gustafson asked Johannessen to clean up and repair a toilet that had overflowed. Johannessen said that he would clean the toilet but that he could not repair it because he was not a plumber.
Before taking care of the toilet, Johannessen followed Gustafson to her office, making clucking noises with his tongue. After leaving her office, he quickly returned and repeated to her in a raised voice that he was unable to fix the toilet because it required a plumber’s attention. Gustafson testified that Johannessen leaned over her desk as he spoke to her, putting his face inches from hers. She told him to leave her office, and he left.
Sometime later, Gustafson met Johannessen on the steps near her office. Both Gustafson and Johannessen testified that the other was upset. Gustafson tried to talk to Johannessen, but he declined and asked her to leave him alone. At that point, Gustafson told Johannessen to leave the building and “cool off.” She also told Johannessen to turn in his keys because she was concerned that he would return to the school on the weekend when she was usually alone at the school.
Johannessen refused to leave or turn over his keys. He testified that he felt that turning in his keys could be construed as a resignation and, therefore, he wanted a witness. When Johannessen refused to leave or hand over his keys, Gustafson called to Sheila Henderson, the school secretary, for help. Johannessen stated that he wanted a witness to Gustafson’s harassment. He went up the stairs to the hall where the classrooms were located. Gustafson told Johannessen not to disturb the classrooms, and when he failed to stop, she told Henderson to run ahead and make certain all of the classroom doors were closed.
Johannessen knocked on the door of a classroom. Gustafson testified that the teacher, Kyle Kelly, opened the door. Johannessen testified that Kelly did not open the door. Kelly testified that Johannessen knocked on his door and that he answered it and saw Johannessen with a note in his hand. Kelly testified that Johannessen said something to the effect “that he couldn’t believe what they were doing to him.” He testified that Johannessen seemed upset but that his voice was conversational.
As Johannessen walked away from Kelly’s classroom, Henderson told him that she had called the police. Johannessen left the building and did not return.
On November 19, 2001, the next workday, Johannessen was placed on a paid suspension pending the outcome of an investigation into the events of November 16th. On November 20, 2001, Johannessen was discharged. A commissioner’s representative determined that Johannessen was terminated for insubordination constituting misconduct and, therefore, disqualified from receiving unemployment benefits.
D E C I S I O N
An employee discharged for employment misconduct is disqualified from receiving unemployment benefits. Minn. Stat. § 268.095, subd. 4(1) (2002).
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.
Minn. Stat. § 268.095, subd. 6(a) (2002). To be intentional, the conduct must be deliberate and not accidental. Houston v. Int’l Data Transfer Corp., 645 N.W.2d 144, 149 (Minn. 2002). Under Minn. Stat. § 268.095, subd. 6(1), there must also be a showing that the employee intended to disregard the standards of behavior the employer has a right to expect. Id. at 150. “A single incident can constitute misconduct when an employee deliberately chooses a course of conduct that is adverse to the employer.” Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 806 (Minn. 2002) (citations omitted).
Whether an employee has committed employment misconduct presents a mixed question of fact and law. Colburn v. Pine Portage Madden Bros., 346 N.W.2d 159, 161 (Minn. 1984). The commissioner’s representative determines the fact issue of whether an employee committed the alleged acts of misconduct. Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997). Issues of fact are determined by a preponderance of the evidence. Minn. Stat. § 268.03, subd. 2 (2002). 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) (citation omitted). This court reviews de novo whether the employee’s actions constitute employment misconduct that disqualifies the employee from receiving unemployment benefits under Minn. Stat. § 268.095 (2002). Ress v. Abbott N.W. Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).
An employee’s refusal to follow an employer’s reasonable directive constitutes employment misconduct. See, e.g., McGowan v. Executive Express Transp. Enters., 420 N.W.2d 592, 596 (Minn. 1988) (intentional refusal by delivery driver to pick up employer’s personal medication was misconduct); Bibeau v. Resistance Tech., Inc., 411 N.W.2d 29, 32 (Minn. App. 1987) (refusal to perform quality-control checks over three days was misconduct); Sandstrom v. Douglas Mach. Corp., 372 N.W.2d 89, 91 (Minn. App. 1985) (refusal to meet employer’s reasonable requests constitutes misconduct); Daniels v. Gnan Trucking, 352 N.W.2d 815, 816 (Minn. App. 1984) (single refusal to unload truck without assistance was insubordination constituting misconduct). The reasonableness of an employer’s request depends upon the circumstances. Sandstrom, 372 N.W.2d at 91.
The commissioner’s representative found that when Gustafson told Johannessen to give her his keys and go home, he refused. Based on this fact determination, the representative concluded that because an employer has a right to expect an employee to follow the directives of the employer, Johannessen’s failure to leave the school when Gustafson told him to leave was insubordination and constituted misconduct.
Johannessen argues that the employer failed to meet its burden to show that misconduct occurred, and the commissioner’s representative erred in finding that he was discharged for employment misconduct. But the unemployment compensation statute does not place a burden of proof on the employer. Minn. Stat. § 268.069, subd. 2 (2002), states:
An applicant’s entitlement to unemployment benefits shall be determined based upon that information available without regard to any common law burden of proof, and any agreement between an applicant and an employer shall not be binding on the commissioner in determining an applicant’s entitlement. There shall be no presumption of entitlement or nonentitlement to unemployment benefits.
There was evidence that after Johannessen became upset following an argument over a maintenance problem, Gustafson told him to leave the building and turn in his keys. Instead of leaving the building as instructed, Johannessen insisted on finding a witness and knocked on the door of Kelly’s classroom. We conclude that a preponderance of the evidence supports the representative’s factual determinations that Gustafson told Johannessen to give her his keys and go home and that Johannessen refused. We further conclude that Gustafson’s directive was reasonable and, therefore, Johannessen’s refusal to follow the reasonable directive was employment misconduct. See McGowan, 420 N.W.2d at 596 (where employee’s refusal to carry out reasonable directive of employer is “deliberate, calculated and intentional,” the refusal is misconduct disqualifying the employee from receiving unemployment benefits).
Johannessen argues that he was entitled to find a witness to the fact that he was not abandoning or quitting his job because he reasonably believed that he was being fired when Gustafson asked for his keys. But Henderson testified that she was present when Gustafson asked Johannessen for the keys, and Johannessen acknowledged that Henderson was present. Therefore, Johannessen did not need to find a witness. Furthermore, Johannessen admitted that he was never told that he was being terminated when he was asked to leave.
* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.