This opinion will be unpublished and

may not be cited except as provided by

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







Mabelu M. Werutaw,


Wackenhut Corporation,

Commissioner of Employment and Economic Development,


Filed April 20, 2004


Wright, Judge


Minnesota Department of Employment and Economic Development

File Nos. 18208 02, 3765 03



Howard L. Bolter, Borkon, Ramstead, Mariani, Fishman & Carp, Limited, Suite 100 Parkdale I, 5401 Gamble Drive, Minneapolis, MN  55416-1552 (for relator)


The Wackenhut Corporation, Monticello Location, c/o Sheakley Uniservice, Inc., P.O. Box 1160, Columbus, OH  43216-1160 (respondent)


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



            Considered and decided by Schumacher, Presiding Judge; Willis, Judge; and Wright, Judge.


U N P U B L I S H E D  O P I N I O N




In this consolidated certiorari appeal, relator challenges the decisions of the commissioner’s representative that relator is disqualified from receiving unemployment benefits and must repay $11,187 in overpaid unemployment benefits.  Relator argues that (1) the Department of Employment and Economic Development lacked jurisdiction over the employer’s appeal because it was untimely and (2) the record does not support the determination that relator was discharged for employment misconduct and, therefore, is required to repay the benefits he received.  We affirm.



In February 2000, shortly after Wackenhut Corporation (Wackenhut) hired relator Mabelu Werutaw as a security guard, Werutaw was required to take a test to demonstrate his knowledge of company policies and procedures contained in the employee handbook and training manual.  A score of 70 percent was needed to pass the test.  Werutaw received a failing score of 67 percent.  Despite Werutaw’s test performance, Wackenhut permitted him to work as a security guard at various work sites.  A year later, Wackenhut audited its employee files and imposed a rule requiring employees to pass the test.  Employees who had not passed the test were given an opportunity to retake it. 

Wackenhut notified Werutaw of the need to retake the test.  Werutaw challenged Wackenhut’s determination that he had not passed, claiming that the former human resources administrator advised him that he had passed.  Werutaw also protested that, even if he had received a failing score, he should not be required to take the test again after more than one year of employment. 

On November 15, 2001, while on a security assignment with Wells Fargo Home Mortgage (Wells Fargo), Werutaw argued with his supervisor, Loney Gronskei, over retaking a different test required by Wells Fargo.  During this argument, the requirement that Werutaw pass the policy-and-procedures test resurfaced.  Gronskei advised Werutaw that he would not be assigned to a job until he passed the policy-and-procedures test.[1]  When Werutaw refused to take the test, Gronskei directed Werutaw to turn in his radio and identification badge and report to human resources. 

            Werutaw applied for unemployment benefits on November 19, 2001, indicating that the reason for the separation was a “lay off” from Wackenhut.  On November 23, 2001, the Department of Employment and Economic Development (the department) made an initial determination of eligibility for unemployment benefits and established an unemployment insurance account for Werutaw.  The department advised in its initial determination of eligibility that any protest to the determination needed to be filed within 10 days.  Copies of the eligibility determination were mailed to Werutaw and Wackenhut.  Wackenhut filed a protest on November 29, 2001.  Wackenhut explained that Werutaw remained employed with the company, but he needed to pass the policy-and-procedures test to receive a job assignment.  Werutaw received $11,187 in benefits from December 4, 2001, through July 16, 2002.  On November 1, 2002, almost one year after Wackenhut filed its protest, the department issued a “Determination of Nondisqualification.”  On November 26, 2002, Wackenhut appealed, stating that Werutaw remained employed with the company but refused to take the test as required.  A hearing on the appeal was held on January 28, 2003.[2]   

Following the hearing, an unemployment law judge modified the determination of nondisqualification, finding that Werutaw was discharged from Wackenhut for employment misconduct and, therefore, was disqualified from receiving unemployment benefits arising from his employment with Wackenhut.  But the unemployment law judge determined that Werutaw was not disqualified from receiving unemployment benefits related to his subsequent employment.  Based on this ruling, the department issued its Determination of Overpayment, concluding that Werutaw was paid $11,187 in unemployment benefits that he was not entitled to receive and directing him to repay this amount. 

Werutaw appealed the decision of the unemployment law judge that he was discharged for employment misconduct to the commissioner’s representative.  He also appealed the department’s determination of overpayment of unemployment benefits to an unemployment law judge, who affirmed the department’s findings.  Werutaw then appealed the overpayment decision to the commissioner’s representative.  The commissioner’s representative affirmed both decisions.  These appeals, which we consolidated, followed.




            Claiming that Wackenhut’s appeal of the Determination of Nondisqualification was untimely, Werutaw challenges the department’s jurisdiction to hear the appeal.  The timeliness of an appeal presents a jurisdictional issue, which is a question of law that we review de novo.  Harms v. Oak Meadows, 619 N.W.2d 201, 202 (Minn. 2000).  Statutory time limits for appealing a department determination are strictly enforced.  See Semanko v. Dep’t of Employment Servs., 309 Minn. 425, 429, 244 N.W.2d 663, 666 (1976).  There are no statutory provisions for extensions or exceptions.  Nieszner v. Minn. Dep’t of Jobs & Training, 499 N.W.2d 832, 837 (Minn. App. 1993).  The department must dismiss an untimely appeal for lack of jurisdiction.  Id

            Werutaw contends that Wackenhut was required to appeal the November 23, 2001, initial determination of eligibility within 30 days.  Because Wackenhut failed to do so, Werutaw argues, the eligibility determination became final.  Neither Minnesota law nor the record supports Werutaw’s contention. 

            Under Minnesota law, there are six steps to a final determination of eligibility for unemployment benefits, after which an untimely appeal is barred.  First, the employee must file an unemployment benefits application stating the reason for the separation from employment.  See Minn. Stat. §§ 268.07, subd 1, .101, subd. 1(a) (2000).  If the reason for separation is reported as anything other than “laid off due to lack of work,” a disqualification issue is raised that the department shall determine.  Minn. Stat.                 § 268.101, subd. 1(a).  Second, the applicant’s former employer is notified of the application and whether a benefits account has been established.  See Minn. Stat.              § 268.101, subd. 1(b) (2000).  This notification is a determination of eligibility for benefits; it does not substantively address issues of disqualification.  Cf. Minn. Stat.          § 268.101, subd. 3(f) (2000).  Third, the employer has ten days to raise an issue as to  disqualification or eligibility.  See Minn. Stat. § 268.101, subd. 1(b).  A protest made more than ten days after the eligibility determination is untimely.  Id.  An untimely protest does not, however, deprive the department of jurisdiction to consider issues of the applicant’s disqualification from benefits.  See Lolling v. Midwest Patrol, 545 N.W.2d 372, 376 (Minn. 1996) (finding jurisdiction under predecessor of Minn. Stat. § 268.101, subds. 2, 3).  Notwithstanding the timeliness of the protest, the department must address any issue of the applicant’s disqualification from receiving unemployment benefits raised by an employer.  Minn. Stat. § 268.101, subd. 3(a) (2000).  Fourth, the department determines issues of disqualification raised by an employer’s protest and by any information provided by the applicant.  See Minn. Stat. § 268.101, subd. 2 (2000).  There is no prescribed time limit within which the department must decide issues of disqualification.  See Minn. Stat. § 268.101, subd. 2; Hart-Wilke v. Aetna Life Ins., 550 N.W.2d 310, 313 (Minn. App. 1996) (finding no statutorily prescribed period within which the department must make a disqualification determination).  Fifth, the commissioner notifies the applicant and the employer of the determination of disqualification or nondisqualification.  See Minn. Stat. § 268.101, subd. 2(a), (c).  Sixth, an appeal of the determination must be taken by the applicant or the employer within 30 days or the determination becomes final.  See Minn. Stat. § 268.101, subd. 2(e). 

The actions of Werutaw, Wackenhut, and the department were in compliance with this six-step process.  Werutaw filed his application for benefits on November 19, 2001, listing “lay off” as the reason for separation from employment.  On November 23, 2001, the department issued to Wackenhut an initial determination of Werutaw’s eligibility to receive unemployment benefits and notified the employer that a benefits account had been established. 

            Werutaw first argues that the department is jurisdictionally barred from considering Wackenhut’s appeal because Wackenhut did not file a timely protest.  But the record establishes that Wackenhut successfully faxed its protest to the St. Cloud benefits center on November 29, 2001, six days after the initial determination of eligibility was issued.  Wackenhut mailed a subsequent letter to the department regarding its protest on January 25, 2002.  Thus, Wackenhut’s protest of the eligibility determination was timely filed.  We note that, even if the protest wereuntimely, an untimely protest to the department’s eligibility determination does not serve as a jurisdictional bar to the department’s consideration of an appeal from the determination.  See Lolling, 545 N.W.2d at 376. 

            Werutaw next asserts that the department’s one-year delay in deciding the issue of disqualification violates the statutory process.  This argument also is unavailing.  Although the department did not issue its determination of nondisqualification until November 1, 2002, nearly one year after receiving Wackenhut’s protest, the department was not required to make the determination regarding disqualification within any prescribed period of time.  See Hart-Wilke, 550 N.W.2d at 313.  While the delay was lengthy, there is no legal basis to conclude that the delay violates the statutory provisions governing this process. 

            Werutaw also argues that the department did not have jurisdiction to hear Wackenhut’s appeal because the appeal was untimely.  As discussed above, the record establishes that the department issued its Determination of Nondisqualification on November 1, 2002.  Pursuant to Minn. Stat. § 268.101, subd. 2(e), Wackenhut filed an appeal on November 26, 2002, squarely within the 30-day appeal period.  Thus, Wackenhut’s appeal was timely filed, and the department had jurisdiction to hear it. 


This court reviews the findings of the commissioner’s representative rather than the unemployment law judge.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  In doing so, we view these findings in the light most favorable to the decision of the commissioner’s representative to determine whether the evidence reasonably sustains the findings.  Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).  Whether an employee committed unemployment misconduct is a mixed question of fact and law.  Colburn v. Pine Portage Madden Bros., Inc.,346 N.W.2d 159, 161 (Minn. 1984).  Whether the employee committed a particular act is a question of fact.  Scheunemann v. Radisson South Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  Whether the act constitutes misconduct is a question of law, which we review de novo.  Ress, 448 N.W.2d at 523. 

            The commissioner’s representative found that Werutaw was discharged from Wackenhut for refusing to retake the policy-and-procedures test.  Finding that Wackenhut’s request that Werutaw retake the test was reasonable, the commissioner’s representative determined that Werutaw’s refusal was employment misconduct. 

An employee who is discharged for employment misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4(1) (2000).  Employment misconduct is defined, in relevant part, as “any intentional conduct          that disregards the standards of behavior that an employer has the right to expect of       the employee or [that] disregards the employee’s duties and obligations to the employer    . . . .”  Minn. Stat. § 268.095, subd. 6(a)(1) (2000); see also Houston v. Int’l Data Transfer Corp., 645 N.W.2d 144, 149 (Minn. 2002).  We analyze the employee’s intent in addition to determining whether the conduct itself is intentional.  See Houston, 645 N.W.2dat 150.  The test for employment misconduct requires that the employee           (1) engage in intentional conduct and (2) engage in conduct that evinces an intent to ignore the duties, obligations, or standards of behavior that the employer has a right to expect.  Id. 

A single isolated incident based on a misunderstanding or a good-faith error in judgment that does not adversely affect the employer’s interests is not sufficient to find intentional misconduct.  Sticha v. McDonald’s No. 291, 346 N.W.2d 138, 140 (Minn. 1984) (finding no disqualifying misconduct where employee inadvertently misled employer to believe employee was taking time off for funeral rather than wake).  Rather, the conduct must be deliberate and not accidental.  Houston, 645 N.W.2d at 149. 

The source for employment standards is not limited to employment contracts.  See Montgomery v. F & M Marquette Nat’l Bank, 384 N.W.2d 602, 604 (Minn. App. 1986), review denied (Minn. June 13, 1986).  An employer’s policies, rules, and reasonable requests may be the source for employment standards and conduct the employer has the right to expect.  See, e.g., Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 805 (Minn. 2002) (injury reporting policy); Sivertson v. Sims Sec., Inc., 390 N.W.2d 868, 871 (Minn. App. 1986) (security guard policy), review denied (Minn. Aug. 20, 1986); Ruzynski v. Cub Foods, Inc., 378 N.W.2d 660, 663 (Minn. App. 1985) (time card policy); Luu v. Carley Foundry Co., 374 N.W.2d 582, 584 (Minn. App. 1985) (absenteeism policy).  Generally, if an employer’s request is reasonable and does not impose an unreasonable burden, then an employee’s refusal to comply with the request constitutes misconduct.  Sandstrom v. Douglas Mach. Corp., 372 N.W.2d 89, 90 (Minn. App. 1985).  An employee’s deliberate action in contravention of an employer’s warning also constitutes misconduct.  See Schmidgall, 644 N.W.2d at 804-06 (failure to report injury during same shift after counseling and two written warnings by employer).

The commissioner’s representative found that Werutaw’s conduct was intentional.  The record supports this finding.  Werutaw acknowledged that Wackenhut notified him on more than one occasion that he was required to retake the policy-and-procedures test.  And Werutaw admitted that he refused to do so.  Thus, there is ample evidentiary support for the finding that Werutaw’s conduct was intentional. 

The commissioner’s representative also found that Werutaw intentionally disregarded the standards of behavior that Wackenhut had a right to expect of its employees.  A representative from Wackenhut testified that, as a part of the company’s training program, employees were required to pass the policy-and-procedures test.  Werutaw’s testimony corroborated the evidence presented by Wackenhut that Werutaw’s site manager and the company’s human resources director warned Werutaw that he was required to take and pass the test before being assigned to any additional security details.  The evidence is undisputed that Werutaw continually refused to retake the test.  Consequently, Werutaw was not given any additional assignments.  Werutaw’s repeated refusal to comply with his employer’s request to take the test again evinces Werutaw’s intent to disregard the standards Wackenhut has the right to expect from its employee.  Accordingly, Werutaw’s challenge to the decision of the commissioner’s representative that Werutaw was discharged for employment misconduct fails.


Werutaw next argues that, even if we conclude that he was discharged for employment misconduct, the decision of the commissioner’s representative requiring repayment of $11,187 in unemployment benefits that Werutaw was not entitled to receive is barred by the doctrine of equitable estoppel based on the department’s untimely determination of ineligibility. 

A determination that an applicant is ineligible to receive unemployment benefits during a period when the applicant was paid benefits also serves as a determination that the unemployment benefits were overpaid.  See Minn. Stat. § 268.101, subd. 6 (2000).  Under Minnesota law, an applicant who receives unemployment benefits to which he or she is not entitled must promptly repay the benefits.  Minn. Stat. § 268.18, subd. 1(a) (2000). 

Werutaw maintains that he is entitled to equitable relief because the department took more than one year to determine that he was not entitled to receive unemployment benefits.  Werutaw’s argument is contrary to Minnesota law, which bars “equitable or common law denial or allowance of unemployment benefits.”  Minn. Stat. § 268.069 subd. 3 (2000).  Because equitable relief from repaying the benefits is precluded, Werutaw is required to repay the benefits he received during the period of disqualification. 

We are mindful of the harsh result exacted when the amount of overpaid unemployment benefits derives, in part, from the one-year period during which the department did not rule on Wackenhut’s protest.  But the law is clear and expressly precludes the equitable relief sought. 


[1]  Werutaw devoted a significant portion of his appellate brief addressing his refusal to retake the Wells Fargo test.  The record establishes, however, that Werutaw’s refusal to take the Wells Fargo test again disqualified Werutaw only from receiving job assignments at the Wells Fargo job site and was not the basis for his discharge from Wackenhut.

[2]  On January 14, 2003, Werutaw applied for unemployment benefits following his separation from another employer.  On February 5, 2003, the department issued a determination of nondisqualification for unemployment benefits unrelated to Werutaw’s employment with Wackenhut.