This opinion will be unpublished and

may not be cited except as provided by

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








Gregory D. Lackens,



Midwestern Interiors, Inc.,


Commissioner of Economic Security,



Filed June 10, 2003


Lansing, Judge


Department of Economic Security

File No. 241202



Gregory D. Lackens, 6056 Portland Avenue, Minneapolis, MN  55417 (pro se relator)


Midwestern Interiors, Inc., Lou Anne Barnes, 2025 East Grand, Des Moines, IA,  50317 (respondent Midwestern Interiors, Inc.)


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


            Considered and decided by Lansing, Presiding Judge, Peterson, Judge, and Wright, Judge.

U N P U B L I S H E D   O P I N I O N


            A discharged painter appeals, by writ of certiorari, the determination of a commissioner’s representative that his actions constituted misconduct that disqualified him from receiving unemployment benefits.  Because the record supports the findings that establish employment misconduct within the meaning of Minn. Stat. § 268.095, subd. 6(a), we affirm.


            Gregory Lackens worked as a project manager and painter for Midwestern Interiors, Inc., from May 5, 2001, through January 8, 2002.  Midwestern Interiors provides drywall and painting services for developers.  Don Barnes, the owner of Midwestern Interiors, began receiving complaints in August 2001 that employees supervised by Lackens were not completing their projects in a workmanlike and timely manner.  Barnes discussed these problems with Lackens, who gave assurances that he would more carefully monitor employee performance.  The performance problems did not improve, and, in November 2001, Barnes told Lackens that unless progress was made Lackens would be replaced as the project manager.

In December 2001, Barnes replaced Lackens, and Bryan Nelson became the project manager.  Lackens was reassigned to painting and miscellaneous work.  During the first week of January, Lackens called in sick on three consecutive days.  When he returned to work, Nelson told him to complete work at three different job sites and to remain at a particular location so Nelson could meet with him.  Lackens did not complete any of the work and left the job site before meeting with Nelson. 

Nelson discharged Lackens on January 8, 2002, for poor job performance, failure to follow instructions, and failure to follow company policies.  A department adjudicator determined that Lackens was eligible for unemployment benefits because he was discharged for reasons other than employment misconduct.  On appeal an unemployment law judge reversed the initial determination and denied unemployment benefits.  The commissioner’s representative affirmed the denial, concluding that Lackens was discharged for misconduct within the meaning of the statute.  See Minn. Stat. § 268.095, subd. 6 (2002) (defining employment misconduct).  Lackens now brings a certiorari appeal of the commissioner’s decision.


An employee discharged for misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4(1) (2002).  Misconduct is “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.”  Minn. Stat. § 268.095, subd. 6(a)(1) (2002).  Employment misconduct is also “negligent or indifferent conduct, on the job or off the job, that demonstrates a substantial lack of concern for the employment.”  Id. at 6(a)(2).  Whether an act constitutes employment misconduct is a legal determination on which this court exercises independent judgment.  Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996).  But we defer to the factual determinations of the commissioner’s representative if they are reasonably supported by evidence in the record.  Id.

The commissioner’s representative found that Lackens was replaced as a project manager at Midwestern Interiors because he inadequately supervised his crew resulting in performance and profitability problems, did not take direction from the project manager who replaced him, worked unauthorized overtime, failed to complete assigned projects, and did not call in sick prior to the start of his shift as required by company policy.  As a general rule, refusing to abide by an employer’s reasonable policies and requests amounts to disqualifying misconduct.  McGowan v. Executive Express Transp. Enters., Inc., 420 N.W.2d 592, 596 (Minn. 1988).

The record supports the finding that Lackens was replaced as a project manager because of poor performance.  Barnes testified that in August 2001, Lackens was notified that the job sites he supervised had profitability and performance problems.  Barnes also testified that despite Lackens’s assurance that his crew’s performance would improve, no noticeable improvements were made from August to November.  Barnes removed Lackens as the project manager in December 2001.  In addition, the record supports the finding that Lackens was told that Nelson had replaced him as the project manager.  Barnes testified that on December 19, 2001, he told Lackens that Nelson was replacing him as the project manager, and Nelson corroborated Barnes’s testimony.

The record also supports the finding that Lackens worked unauthorized overtime, failed to follow Nelson’s instructions, failed to complete assigned projects, and failed to show up for a prearranged meeting with Nelson.  Barnes testified that Nelson met with Lackens and other painters on December 20 and advised them that they could not work overtime unless it was authorized, and that despite this warning Lackens worked six-and-one-half hours beyond his two hours of authorized overtime at the end of December.  The record includes a document indicating the number of hours Lackens worked each week, which shows that Lackens worked eight-and-one-half hours of overtime during the third week of December.  Nelson testified that after the December 20 meeting, Lackens failed to comply with Nelson’s instructions by refusing to relinquish some of his scheduling duties and failing to inform Nelson when work schedules changed.

Barnes testified that on January 7, 2002, Nelson told Lackens to complete work at three different job sites and to remain at one of the locations so that Nelson could meet with him.  Barnes stated that Lackens did not complete any of the work he was assigned at the three job sites and that he did not meet with Nelson before leaving work.  Again, Nelson’s testimony corroborates Barnes’s account of the incident.

The record is disputed on the representative’s finding that Lackens violated company policy by calling in sick after the start of his shift on three consecutive days.  Barnes testified that the employment application for Midwestern Interiors states employees must call in sick prior to the start of their scheduled shift, and that Lackens failed to call in sick prior to the start of his shift on all three days in the first week of January.  Lackens testified that he made the required calls before the start of his shift. Nelson testified that Lackens called after the start of his shift on one of the days.  When evidence is conflicting, we must defer to the representative’s ability to weigh the evidence and make credibility determinations.  Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995).  The findings indicate that the representative found Barnes’s testimony more credible than Lackens’s testimony.  Even though Lackens’s supervisor testified that Lackens called in late on only one day, whether the failure to abide by Midwestern Interiors’s reporting policies occurred once or three times would not change the legal determination of misconduct.

The findings are supported by the record and sustain the representative’s conclusion that Lackens was discharged for employment misconduct.  In failing to improve work performance within a four-month time period, Lackens demonstrated a substantial disregard for the financial interests of Midwestern Interiors.  Lackens also did not follow Nelson’s reasonable requests by working unauthorized overtime, by failing to relinquish all of his duties as the project manager, by not completing his assigned work, and by leaving the job site without Nelson’s permission.