This opinion will be unpublished and

may not be cited except as provided by

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








Herb N. Floan,





Jennie-O Turkey Store, Inc.,


Commissioner of Employment and Economic Development,




Filed December 30, 2003


Anderson, Judge


Department of Employment and Economic Development

File No. 18469 02


Herb N. Floan, 1535 Willard Avenue, Detroit Lakes, MN  56501 (pro se relator)


Thomas P. Kieselbach, Andrea E. Reisbord, Cousineau, McGuire & Anderson, Chartered, 600 Travelers Express Tower, 1550 Utica Avenue South, Minneapolis, MN  55416-5318 (respondent-employer)


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


            Considered and decided by Klaphake, Presiding Judge; Willis, Judge; and Anderson, Judge.


U N P U B L I S H E D  O P I N I O N




            Relator Herb Floan challenges the commissioner representative’s decision that he was discharged for misconduct, arguing that he was fired for poor job performance, which, under Minn. Stat. § 268.095, subd. 6(b) (2002), is not employment misconduct.  We affirm.



            Floan began work for Jennie-O Turkey Store, Inc. (“Jennie-O”) on September 30, 2000.  Jennie-O conducted a performance review on October 8, 2002, giving Floan an overall rating of “2A” or “needs improvement.”  Jennie-O has a policy that if a 2A is given on a performance review, a performance improvement plan must be completed in order to successfully move the employee toward a “fully competent” rating.  Because of Floan’s 2A performance rating, on October 8, 2002, Jennie-O initiated a 90-day improvement plan. 

            The improvement plan contained four objectives as guidelines to assist Floan in completing the plan.  These were computer training, preparing and issuing monthly reports to the mill areas, preparing quarterly budget and financial reports, and improving customer service.  Jennie-O told Floan the 2A rating was temporary and that after 90 days he would either return to a fully competent rating or his rating would become unacceptable.  Jennie-O stated in the cover memo to the plan that the improvement process was necessary for Floan to meet the requirements of his position, and warned that his job was in jeopardy.  Jennie-O also offered the support and assistance of management to help him meet the requirements.  After receiving the plan, Floan told his supervisor he needed some time to think about whether he would participate.

            On October 14, 2002, Floan indicated to his supervisor that he did not intend to perform any portion of the improvement plan stating he did not feel the requested reports were necessary, he did not want to be micro-managed, and he did not have time in his workday to complete the reports.  Floan asked his supervisor whether noncompliance with the improvement plan would result in termination of employment.  His supervisor stated he did not know and that he would need to speak with someone else to find out.  On October 24, 2002, Jennie-O notified Floan of its intention to discharge him effective November 1, 2002, because of his refusal to complete the improvement plan.

            Floan established a benefit account with the Minnesota Department of Employment and Economic Development, effective November 3, 2002.  In a decision dated November 22, 2002, the Minnesota Department of Economic Security disqualified Floan from receiving unemployment benefits because he was discharged due to employment misconduct.  Floan appealed.  An unemployment law judge affirmed the decision.  After another appeal, the commissioner’s representative issued the final agency decision, affirming the prior decisions and concluding that Floan was discharged because of his refusal to complete the performance improvement plan and that the refusal constituted disqualifying employment misconduct.  This appeal followed.



            An employee discharged for misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4(1) (2002).  Floan argues he should not be disqualified from unemployment benefits for misconduct because he was fired for poor job performance due to inability, which, under Minn. Stat. § 268.095, subd. 6(b), is not employment misconduct.  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 has engaged in conduct that disqualifies him from unemployment benefits is a mixed question of fact and law.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  A determination of the commissioner’s representative regarding the reasons for an employee’s separation is a factual determination that is to be reviewed in the light most favorable to the decision and may not be disturbed if there is evidence reasonably tending to sustain the finding.  Markel v. City of Circle Pines, 479 N.W.2d 382, 383-34 (Minn. 1992).  Whether the actions constitute misconduct is a question of law reviewable de novo on appeal.  Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989). 

            The commissioner’s representative determined the reason for Floan’s discharge was his refusal to complete the performance improvement plan.  While Floan asserts he was discharged because of the poor grade on his job performance review, not because of his refusal, there is substantial evidence in the record supporting the representative’s factual finding.  First, instead of terminating Floan for poor performance in October, Jennie-O clearly stated a willingness to work with him to improve his performance so that his employment could continue.  Floan, a week later, made an equally clear statement concerning his unwillingness to work with management.  It was only after this refusal that Jennie-O decided to terminate his employment.  Because the record reasonably supports the commissioner representative’s determination that Jennie-O discharged Floan because of Floan’s refusal to participate in the improvement plan, this factual finding is affirmed.

            The next question is whether Floan’s refusal to participate in the improvement plan was misconduct.  Employment misconduct is defined as conduct that “must (1) be intentional and (2) disregard 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).[1]  Conduct is intentional if it is deliberate and not accidental.  Id.  “[T]he word ‘disregard’ includes intent that is separate and distinct from the intent to engage in the conduct in question.”  Id. at 150.  Therefore, in order to be disqualified for employment misconduct, there must be a sufficient showing in the record that the employee intended to, or engaged in conduct that “evinced an intent to” ignore or pay no attention to the employee’s duties and obligations or the standards of behavior the employer had a right to expect.  Id.

            The conduct here was intentional in both respects.  Floan received the improvement plan on October 8, 2002, and told his supervisor he wanted to think it over as to whether he would comply.  He then specifically asked his supervisor about potential consequences if he refused to perform the plan.  His subsequent affirmative refusal to perform the plan was a conscious and intentional act.

            An employer has a right to expect employees to abide by reasonable instructions and directions.  McGowan v. Executive Express Transp. Enters., 420 N.W.2d 592, 596 (Minn. 1988).  Typically, “refusing to abide by an employer’s reasonable policies and requests amounts to disqualifying misconduct.”  Schmidgall, 644 N.W.2d at 804.  Even “[a] single incident may constitute misconduct if the employee sufficiently disregards his or her employer’s expectations.”  Nieszner v. Minn. Dep’t of Jobs & Training, 499 N.W.2d 832, 838 (Minn. App. 1993).  What is considered “reasonable,” however, varies with the circumstances of each case.  Sandstrom v. Douglas Mach. Corp., 372 N.W.2d 89, 91 (Minn. App. 1985).

            Floan asserts that fulfilling the plan would require him to work five to ten hours more a week, above the 45 to 50 hours a week he already worked.  He also asserts that because the plan states all parts must be completed, it implies partial performance is completely unacceptable.  Floan argues he was incapable of fulfilling Jennie-O’s requests because these requirements, considered together, were unreasonable.  See Minn. Stat. § 268.095, subd. 6(b) (providing that “poor performance because of inability or incapacity” is not employment misconduct).

            This court has previously noted an employee’s intentional refusal to perform a task supported the commissioner’s decision that an employee committed misconduct.  See, e.g., Bibeau v. Resistance Tech., Inc., 411 N.W.2d 29, 32 (Minn. App. 1987) (noting employee deliberately chose to disobey her employer’s instructions that she make quality checks because she believed the order was “stupid”); Daniels v. Gnan Trucking, 352 N.W.2d 815, 816 (Minn. App. 1984) (stating refusal to unload a truck “was a deliberate act of insubordination”).  Here, the record demonstrates (1) Floan had been informed by his employer that he was required to fulfill the improvement plan, and (2) Floan deliberately refused to comply with the plan because he did not feel the requested reports were necessary, he did not want to be micro-managed, and he did not have time in his workday to complete the reports.  Floan presented no evidence, other than his own subjective belief, that the plan was unreasonable; the record indicates the requirements set forth in the improvement plan were required of all the mill managers, not just Floan. 

Floan essentially argues the employer attempted to accomplish indirectly what it could not accomplish directly – disqualifying a fired employee from benefits on the basis of noncompliance with an employer’s reasonable performance requirement (a disqualifying event) as opposed to simple nonperformance of duty (arguably not a disqualifying event).  But those are not our facts.  Here, Floan did not attempt to comply with a plan and ultimately fail, nor was the improvement plan so unreasonable that failure was inevitable.  Floan knew what the employer requested from him, there is no evidence in the record that the requests were unreasonable, and he intentionally and consciously chose not to even attempt to perform according to the terms of the plan.  Floan’s actions constituted disqualifying misconduct.


[1] At the time of the agency decision, “employment misconduct” was statutorily defined as follows:

(1)  [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;


. . .


(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.


Minn. Stat. § 268.095, subd. 6.  This definition was subsequently amended, effective August 1, 2003.