This opinion will be unpublished and

may not be cited except as provided by

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







Jon M. Ask,





SDH Services West, LLC,



Commissioner of Employment and Economic Development,



Filed April 20, 2004


Willis, Judge


Department of Employment and Economic Development

File No. 1401 03


Jerome W. Perry, Perry Law Office, 307 Ironwood Square, 300 Third Avenue SE, Rochester, MN  55904-4681 (for relator)


SDH Services West, LLC, Fort Snelling Location, c/o Talx UCM Services, Inc., P.O. Box 283, Saint Louis, MO  63166-0283 (respondent)


Lee B. Nelson, M. Kate Chaffee, Department of Employment and Economic Development, 390 Robert Street North, 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


Relator challenges the determination of the commissioner’s representative that relator is disqualified from receiving unemployment-insurance benefits because he was discharged for employment misconduct.  Because we conclude that the commissioner’s representative’s findings of fact have reasonable evidentiary support and that those findings support the commissioner’s representative’s conclusion that relator was discharged for employment misconduct, we affirm.


Relator Jon M. Ask was employed as a catering associate with SDH Services West, LLC (“SDH”) from November 30, 2000, until November 11, 2002.  His job duties included delivering food and dishes to various rooms throughout the Mayo Clinic before catered events and picking up the dishes and leftover food after the events were completed.  The record shows that between February 2001 and August 2002, Ask received seven written or oral reprimands for unacceptable work conduct, including tardiness, poor attendance, and failure to complete his assigned duties in a timely and professional manner. 

            On November 5, 2002, Ask’s assigned duties included making four deliveries to events around the clinic, picking up after those events, and preparing a juice tray for an event scheduled for the following day. Ask’s supervisor, Audrey Winters, testified that, upon her arrival at work on November 6, she discovered that Ask had not prepared the juice tray or completed any of his assigned pick-ups.  She also testified that, when she confronted Ask about the unfinished tasks, he claimed to have completed them before he left for the day, but that when Winters told him that she had done the work herself, Ask “really didn’t have a response.”  Winters further testified that if employees are unable to finish the pick-ups on the day that they are to be done, it is acceptable for the employees to do them on the following day if they notify her beforehand.   

Ask also testified that SDH policy allows employees to put off pick-ups until the following day and that it is not unusual for employees to take advantage of this policy.  When asked whether he had completed all of his assigned duties on November 5, Ask testified that “to [his] knowledge [the juice tray and his pick-ups] were complete when [he] left,” but he also admitted that it was possible that he forgot to complete those duties. 

            On November 11, Ask met with Winters and J.D. Purl, SDH’s manager for food services, and was discharged.  Purl and Winters both testified that Ask was discharged for his failure to complete his duties on November 5 and that Ask’s previous disciplinary history was also taken into consideration in deciding to discharge him. 

            Ask applied for unemployment benefits, and the department of employment and economic development determined that he was not disqualified from receiving benefits.  SDH appealed, and an unemployment-law judge reversed the department’s determination.  The commissioner’s representative affirmed, finding that Ask’s conduct “evinced an intentional disregard of his duties and obligations to (SDH) and [a] lack of concern for his employment.”  This certiorari appeal follows.


The commissioner’s representative’s determination that an employee is disqualified for employment misconduct is a mixed question of fact and law.  Colburn v. Pine Portage Madden Bros., Inc., 346 N.W.2d 159, 161 (Minn. 1984).  We will affirm if the record reasonably supports the findings of fact and “the conclusion on those facts is not contrary to the statutory mandate.”  Id.  The commissioner’s representative’s factual findings are viewed in the light most favorable to his decision, and his decision will not be disturbed if the record reasonably sustains those findings.  Schmidgall v. Filmtec Corp., 644 N.W.2d 801, 804 (Minn. 2002).   The question of whether an employee’s actions constitute employment misconduct is a legal issue reviewed de novo.  Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).  The commissioner’s representative’s decision is accorded “particular deference” by a reviewing court.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).        

            The commissioner’s representative found that Ask had been warned numerous times during his tenure at SDH that his job performance was deficient because of tardiness, poor attendance, dress-code violations, and failure to complete his duties in a timely manner.  The record reasonably supports these findings.  The commissioner’s representative also found that, on November 5, 2002, Ask was given a list of duties to perform and that he “did not think it was necessary to complete his duties and he did not do so before punching out and leaving.”  This finding also is reasonably supported by the record in the form of the testimony of Ask and the SDH witnesses. 

Ask contends that these findings support only a conclusion that he was an “unsatisfactory” employee and not that he committed employment misconduct by intentionally disregarding his duties to SDH.  An employee discharged for employment misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4(1) (2002).  Employment misconduct is 

(1)       any intentional conduct . . . 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; or


(2)       negligent or indifferent conduct . . . that demonstrates a substantial lack of concern for the employment.


Id., subd. 6(a) (2002).[1]  “Inefficiency, inadvertence, simple unsatisfactory conduct, [or] poor performance because of inability or incapacity . . . are not employment misconduct.”  Id., subd. 6(b) (2002).  To constitute employment misconduct, the conduct 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).  To establish employment misconduct,

there must be a sufficient showing in the record that the employee not 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. 

            Ask argues that the first prong of the Houston test is not met because the record supports only the conclusion that he accidentally left work on November 5 without completing his assigned duties.  But the commissioner’s representative found that “Ask’s contention that he inadvertently forgot to make the pick-ups and complete the juice list is not believable.”  We defer to the commissioner’s representative’s credibility determinations.  Jenson v. Dep’t of Econ. Sec., 617 N.W.2d 627, 631 (Minn. App. 2000), review denied (Minn. Dec. 20, 2000).  The findings reasonably support the commissioner’s representative’s determination that Ask intentionally left work on November 5 without completing all of his assigned duties.  Therefore, the first prong of the Houston test is met. 

            Ask argues that the second prong of the Houston test is not met because his conduct did not show that he intended to disregard his duties to SDH.  He contends that because SDH has a policy of allowing employees to put off pick-up and juice-tray duties until the day after they are supposed to be completed, he did not violate any duty to SDH by leaving without completing those duties on November 5.

            But Winters testified that SDH employees are required to notify her before leaving work without completing their assigned duties.  It is uncontested that Ask did not notify Winters that he was leaving work on November 5 without preparing the juice tray or completing his pick-ups.  Generally, if an employer’s request is reasonable and does not impose an unreasonable burden on the employee, the employee’s refusal of the request will constitute employment misconduct.  Sandstrom v. Douglas Mach. Corp., 372 N.W.2d 89, 91 (Minn. App. 1985).  Here, the record reasonably supports the commissioner’s representative’s finding that Ask was given a list of duties to perform on November 5, including making pick-ups and preparing a juice tray, and that despite having been reprimanded in the past for deficient job performance, Ask failed to timely perform his duties.  SDH’s request that Ask complete his assigned duties on the day that they were assigned or to notify Winters if he was leaving without completing his work was reasonable, and, by deliberately not completing his assigned duties and not notifying Winters, Ask evinced an intent to disregard his duties and obligations to SDH and a lack of concern for his employment.  Therefore, the second prong of the Houston test is also met.  We conclude that the record supports the commissioner’s representative’s determination that Ask was discharged for employment misconduct.

Ask also argues that much of the evidence offered by SDH at the hearing before the unemployment-law judge, including all of Purl’s testimony, should not have been admitted because it was unauthenticated, duplicative, or hearsay.  But the commissioner of employment and economic development is authorized to adopt evidentiary rules for unemployment compensation hearings and those rules need not conform to the Minnesota Rules of Evidence.  Minn. Stat. § 268.105, subd. 1(b) (2002).  Under the rules adopted by the commissioner, the decision to admit or exclude evidence is generally within the discretion of the unemployment-law judge, and the judge “may receive any evidence which possesses probative value, including hearsay.”  Minn. R. 3310.2922 (2001).  We find no abuse of discretion by the unemployment-law judge in admitting the challenged evidence. 



[1] Amendments made to Minn. Stat. § 268.095 in 2003 changed the statutory definition of “employment misconduct.”  Because Ask was discharged before the effective date of those amendments, the 2002 statute applies.