This opinion will be unpublished and

may not be cited except as provided by

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







Deone M. Ross,





HOM Furniture, Inc.,


Commissioner of Employment and Economic Development,




Filed November 10, 2003


Anderson, Judge


Department of Employment and Economic Development

File No. 16871 02


James W. Kerr, P.O. Box 6140, Minneapolis, MN  55406 (for relator)


Richard C. Salmen, Dennis J. Merley, Felhaber Larson Fenlon & Vogt, 225 South Sixth Street, Suite 4200, Minneapolis, MN  55402 (for respondent-employer HOM Furniture)


Lee B. Nelson, Philip B. Byrne, Minnesota Department of Employment and Economic Development, 390 North Robert Street, St. Paul, MN  55101 (for respondent-commissioner)


            Considered and decided by Wright, Presiding Judge; Harten, Judge; and Anderson, Judge.


U N P U B L I S H E D  O P I N I O N




            The relator, Deone Ross, appeals the decision of the representative of the Commissioner of Employment and Economic Development that relator was terminated for employment misconduct.  Relator argues that while his conduct was intentional, it was not in deliberate disregard of his employer’s standards because relator contends his violation of company policy requiring a spotter whenever a truck is backed up was a de minimis violation because relator caused no damage or injuries, it was raining heavily, and relator’s assistant took steps to ensure that relator safely backed up the truck.  We affirm.


            Relator, Deone Ross, was employed by respondent HOM Furniture from June 18, 2001, until October 4, 2002, as a delivery driver.  On October 10, 2001, relator signed a one-page document that stated in its entirety:

All delivery department employees understand that in the interest of public safety, HOM Furniture Delivery Vehicles (20ft and longer Straight Trucks) will not be driven in reverse without a person spotting the vehicle.  Company vans, pick-ups, automobiles, are specifically excluded.


The only exception to this policy is for use within the distribution center yard, or when delivering a vehicle to a vendors [sic] repair facility.  Spotters must be used at all other times, including when receiving/delivering product to other delivery docks that are not company facilities.


The consequences for failing to follow this policy will be the termination of the driver of the vehicle.


            On October 2, 2002, relator was making a delivery using a truck that was subject to the “spotter” policy.  Relator was required to move the delivery truck approximately two feet to one side; to accomplish this, relator drove the truck forward and then backward.  Because it was raining, relator had his assistant stand in the back of the truck and pound on the walls if relator got too close to anything.  While backing, relator hit a water pipe but apparently caused no damage to either the pipe or the truck.  Relator acknowledged that because his assistant was not acting as a spotter, he violated company policy.  At the time of the incident, relator was aware of the policy requiring spotters and that his employment was subject to termination if no spotter was used.

            Respondent employer fired relator for misconduct.  Relator applied for unemployment benefits but was disqualified.  Relator appealed and an unemployment law judge held that relator was not disqualified because this was “a solitary lapse of judgment,” people in a residential area were not exposed to danger because this was in a loading zone, and no significant property damage occurred.  Respondent appealed, and the representative for the Commissioner of Employment and Economic Development held that relator was disqualified because relator backed up his truck without a spotter in intentional disregard of the employer’s policy and that the amount of damage was irrelevant.  This appeal followed.


On appeal, a reviewing court must examine the decision of the commissioner’s representative, rather than that of the unemployment law judge.  Kalberg v. Park & Recreation Bd., 563 N.W.2d 275, 276 (Minn. App. 1997).  Decisions of the commissioner’s representative are accorded particular deference.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  Whether an employee’s acts constitute misconduct is a question of law upon which reviewing courts remain free to exercise their independent judgment.  Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).

Minn. Stat. § 268.095, subd. 4 (2002) states, “An applicant who was discharged from employment by an employer shall not be disqualified from any employment benefits except when . . . the applicant was discharged because of employment misconduct.”  One definition of misconduct under Minn. Stat. § 268.095, subd. 6(a), is, “[A]ny 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.”  Id., subd. 6(a)(1).

            Employment misconduct has recently been interpreted to mean conduct that is (1) intentional and (2) disregards “standards of behavior the employer has a right to expect or the employee’s duties and obligations to the employer.”  Houston v. Int’l Data Transfer Corp., 645 N.W.2d 144, 149 (Minn. 2002).  According to Houston, intentional conduct is conduct that is “deliberate,” and “‘disregard’ means ‘to pay no attention to; leave out of considerations; ignore; [. . .] to treat without due regard, respect, or attentiveness; slight.’”  Id. at 149-50 (quoting Random House Dictionary of the English Language 569 (2d ed. 1987)).  Therefore, the employee must not have “only engaged in intentional conduct, but also intended to, or engaged in conduct that evinced an intent to, ignore or pay no attention to his or her duties and obligations or the standards of behavior the employer has a right to expect.”  Id. at 150.

            In deciding unemployment cases, “the issue is not whether the employer can choose to terminate the employment relationship, but rather ‘whether, now that the employee has been terminated, there should be unemployment compensation, a determination which focuses on the willfulness of the employee’s behavior.’”  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 806 (Minn. 2002) (quoting Auger v. Gillette Co., 303 N.W.2d 255, 257 (Minn. 1981)).  Typically, “refusing to abide by an employer’s reasonable policies and requests amounts to disqualifying misconduct.”  Id. at 804.  Further, “[a] single incident can constitute misconduct when an employee deliberately chooses a course of conduct that is adverse to the employer.”  Id. at 806.  Also, “an employee’s decision to violate knowingly a reasonable policy of the employer is misconduct.”  Id.

            Here, relator admits he engaged in intentional conduct by backing up the truck without a spotter.  Relator only contests the determination that he intentionally disregarded his employer’s reasonable standard of behavior. 

            The standard of behavior, here the policy requiring a spotter, is clear, direct, and unambiguous; it is equally clear that the policy is motivated by reasonable employer goals of reducing property damage and personal injury claims.

            Relator’s argument that no damage occurred is irrelevant.  The employer’s policy does not set forth an exception for low speed or no damage accidents; the policy does not even require that an accident occur.  Thus, any time a driver backs up a truck without a spotter, the driver falls below the standard of conduct the employer reasonably expects.  While the result in this case is unquestionably harsh, relator committed misconduct when he backed up the truck without a spotter because he engaged in intentional conduct and disregarded his employer’s reasonable standard of behavior.