This opinion will be unpublished and

may not be cited except as provided by

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







Kenneth W. Lang,





Independent School District #272,



Commissioner of

Employment and Economic Development,



Filed January 27, 2004


Hudson, Judge


Department of Employment and Economic Development

File No. 17201 02


Thomas H. Boyd, Aimée D. Dayhoff, Winthrop & Weinstine, P.A., Suite 3500, 225 South Sixth Street, Minneapolis, Minnesota 55402 (for relator)


Maggie R. Wallner, Kimberly H. Boyd, Rider Bennett, LLP, 333 South Seventh Street, Suite 2000, Minneapolis, Minnesota 55402 (for respondent employer)


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


            Considered and decided by Hudson, Presiding Judge; Peterson, Judge; and Harten, Judge.

U N P U B L I S H E D   O P I N I O N


In this certiorari appeal from the commissioner’s representative’s finding of employment misconduct, relator contends he did not commit misconduct by intentionally falsifying his employment application and ignoring the directives of his employer.  Because the record reasonably supports the commissioner’s representative’s findings that relator committed employment misconduct, we affirm.


In January 2001, relator Kenneth Lang applied for a position with Independent School District #272.  On his employment application Lang stated that he had not been convicted of a felony or misdemeanor and that he attended Oklahoma State, Claremore, Oklahoma, for three years.  The school district hired Lang, and he was employed as a full-time custodian from July 20, 2001, through September 26, 2002. 

From December 2001 through March 2002, the school district met with Lang five times to address performance issues.  The last meeting was on March 27, 2002.  At this meeting relator received a letter directing him to cease certain conduct including:  inappropriate behavior with other staff, unauthorized use of employer supplies, speaking and acting in a disrespectful manner and disrupting the work of staff members.  The letter stated, “if you do not immediately comply with these directives or future directives, you will be terminated.  Please consider this your last chance warning.” 

On September 6, 2002, Lang went into a classroom to clean and began a non-work-related discussion with a teacher.  During this incident, Lang pulled up a chair, sat down at the teacher’s desk, and began eating candy from a bowl on her desk.  The teacher filed a complaint with the school.

In late July and early September of 2002, the school district conducted a background check on Lang, which revealed that he had a felony conviction in Missouri for failure to pay child support.  In the course of the background check, the school district also discovered that Oklahoma State University had no record of Lang attending the school. 

Lang admits that he pleaded guilty to the felony offense in Missouri, but contends his attorney assured him he would not have a conviction on his record.  Lang also explained that while he did not actually attend Oklahoma State University, he did attend Will Rogers University, which he understood was affiliated with Oklahoma State University.  Lang contends that because Will Rogers University was not in existence at the time he applied with the school district, he decided to state on his employment application that he attended Oklahoma State University rather than Will Rogers University. 

On September 26, 2002, Lang was discharged for falsifying his employment application, insubordination, and abuse of sick leave.  Soon after his discharge, Lang applied for unemployment benefits.  On October 31, 2002, the Department of Employment and Economic Development determined Lang was disqualified from receiving benefits.  Lang appealed this decision on November 7, 2002.  On January 24, 2003, the unemployment law judge affirmed the department’s determination.  Lang appealed this decision.  On May 15, 2003, the commissioner’s representative affirmed the unemployment law judge’s determination.  This certiorari appeal follows.


We review the decision of the commissioner’s representative rather than that of the unemployment law judge.  See Weaver v. Minnesota Valley Labs., 470 N.W.2d 131, 133 (Minn. App. 1991).  Whether an employee committed the specific act or acts alleged to be misconduct is a question of fact for determination by the commissioner’s representative.  Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  We review factual findings in the light most favorable to the decision of the commissioner’s representative and uphold these findings if the evidence in the record reasonably tends to sustain them.  Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996).  Whether the specific act or acts alleged constitute misconduct is a question of law, which we review de novo.  Scheunemann, 562 N.W.2d at 34.

Here, the commissioner’s representative found that Lang committed employment misconduct by falsifying material information on his employment application and violating his employer’s directives, policies, and procedures.

“Employment misconduct” includes “any intentional conduct . . . that disregards the standards of behavior that an employer has the right to expect” and “negligent or indifferent conduct . . . that demonstrates a substantial lack of concern for the employment.”  Minn. Stat. § 268.095, subd. 6(a)(1)-(2) (2002).  For an employee’s conduct to constitute 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.  Houston v. Int’l Data Transfer Corp., 645 N.W.2d 144, 150 (Minn. 2002).

The record supports the commissioner’s representative’s finding that Lang ignored his employer’s directives.  The school district met with Lang five times (on December 14, 2001, December 18, 2001, March 12, 2002, March 19, 2002, and March 27, 2002) to warn him, that among other things, he needed to refrain from engaging in non-work-related discussions with teachers while cleaning the classrooms.  At the last meeting on March 27, 2002, Lang received a letter notifying him that this was his “last chance warning.”  Nevertheless, on September 6, 2002, Lang engaged a teacher in a non-work-related discussion and interrupted her work.  During this interaction, Lang pulled up a chair and sat with the teacher at her desk while eating candy from a bowl on her desk.  The teacher filed a complaint against Lang.  It is undisputed that Lang was required to enter the teacher’s classroom because he was responsible for cleaning it.  But Lang did considerably more than clean the classroom.  He intentionally engaged the teacher in a non-work-related discussion while he sat at her desk eating candy—and he did so after specific instructions from the employer to refrain from such behavior.  Thus the evidence supports the commissioner’s representative’s finding that Lang failed to follow the directives of his employer and was insubordinate.

A pattern of failing to follow policies and procedures and ignoring directions and requests demonstrates a substantial lack of concern for the employer’s interests.  Gilkeson v. Indus. Parts & Serv., Inc., 383 N.W.2d 448, 452 (Minn. App. 1986); see also Jones v. Rosemount, Inc., 361 N.W.2d 118, 120 (Minn. App. 1985).  Lang’s behavior showed a lack of concern for his employer’s interests, which constitutes misconduct under Minn. Stat. § 268.095, subd. 6 (a) (2002).

We agree that Lang committed misconduct by disrupting the work of other staff members, thereby violating the directives of his employer.  Accordingly, we affirm the commissioner’s representative’s decision.  Because we affirm the decision on this basis, we need not address the commissioner’s representative’s decision that Lang also committed misconduct by falsifying material information on his employment application.