This opinion will be unpublished and

may not be cited except as provided by

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







Joanna Ohlssen-Crump,





Dakota King, Inc.,




Commissioner of Employment and Economic Development,




Filed ­­­July 6, 2004


Harten, Judge



Department of Employment and Economic Development

Agency File No. 1710 03


Joanna Ohlssen-Crump, 1110 Ferdig Street, Building 4, Yankton, SD 57078-3212 (pro se relator)


Lee B. Nelson, Linda A. Holmes, Department of Employment and Economic Development, 390 North Robert Street, St. Paul, MN 55101 (for respondent Commissioner of Employment and Economic Development)


Dakota King, Inc., 3800 West 53rd Street, Sioux Falls, SD 57106 (respondent)


            Considered and decided by Halbrooks, Presiding Judge, Harten, Judge, and Minge, Judge.


U N P U B L I S H E D   O P I N I O N



            Relator challenges the decision by the commissioner’s representative that she was discharged for misconduct and disqualified from receiving unemployment benefits.  Because the record reasonably supports the commissioner’s representative’s determination, we affirm.


On 10 September 2002, relator Joanna Ohlssen-Crump began working as an assistant manager for the Burger King restaurant in Yankton, South Dakota, owned by respondent Dakota King, Inc.  In November 2002, the assistant managers were assigned to write about their roles as management staff and to turn in the assignments by closing time on 8 November 2002.  Relator did not turn in her assignment until 9 November 2002, and received her first disciplinary warning for failing to timely complete an assigned task.

Company policy requires that teenage employees who work a closing shift must be sent home by the time indicated on the schedule, generally one hour after the restaurant closes.  The management staff was repeatedly warned about this policy during regular meetings.  On Saturday, 30 November 2002, the restaurant closed at 11:00 p.m., but relator did not send a 16-year-old employee home until 12:30 a.m.  For that, relator received her second disciplinary warning.

On 1 December 2002, three employees who were working under relator’s supervision started a food fight in the restaurant.  They threw ketchup, mustard, and shortening at each other and sprayed each other with water from a hose.  Relator, who was working on a bank deposit in the restaurant office, testified that she was not aware of the food fight until one employee reported that other employees were shooting ketchup and mustard at each other.  Relator testified that she told the employees to stop and to clean up the mess, but the employees later told the restaurant manager that the food fight continued.  Customers witnessed the food fight; one customer later called the restaurant manager to report it.  On 5 December 2002, relator received her third disciplinary warning and was discharged.

Relator applied for unemployment benefits, and a department adjudicator determined that she was qualified to receive benefits because she had not been discharged for employment misconduct.  Dakota King, Inc. appealed, and an unemployment law judge affirmed, finding that none of the incidents was intentional and at most resulted from inadvertence or simple unsatisfactory conduct.  Dakota King, Inc. appealed to the commissioner’s representative, who found that relator was disqualified from receiving unemployment benefits because she was discharged for employment misconduct.  Relator now challenges that determination.


            On appeal, this court examines 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 afforded “particular deference.”  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  Generally, this court’s review is limited to determining whether the record reasonably supports the decision of the commissioner’s representative.  Id.

An employee who is discharged for misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4(1) (2002).  The determination that an employee is disqualified for reasons of misconduct is a mixed question of fact and law.  Colburn v. Pine Portage Madden Bros., 346 N.W.2d 159, 161 (Minn. 1984).  A reviewing court will affirm the commissioner’s representative’s determination of misconduct if the evidence supports the findings of fact and if the conclusions on those facts are consistent with statutory mandate.  Id.

            At the time relator was discharged, employment misconduct was defined as “intentional conduct . . . that disregards the standards of behavior that an employer has the right to expect . . . or disregards the employee’s duties and obligations to the employer,” or “negligent or indifferent misconduct . . . that demonstrates a substantial lack of concern for the employment.”  Minn. Stat. § 268.095, subd. 6(a) (2002).  Misconduct does not include “[i]nefficiency, inadvertence, simple unsatisfactory conduct, poor performance because of inability or incapacity, or absence because of illness or injury with proper notice to the employer.”  Id., subd 6(b).  Relator argues that her actions did not constitute misconduct.[1]

            Relator argues that her failure to send a teenage employee home on time after the restaurant closed was not “job neglect or even a dereliction of duty.”  The restaurant manager testified that management staff had been warned repeatedly about sending employees home within one hour after the restaurant closes; relator admitted that she was aware of the policy and that she lost track of time on two occasions and kept employees late.  A pattern of failing to follow procedures and ignoring directions 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).  Therefore, relator’s failure to send employees home on time on more than one occasion is at least negligent misconduct.

            Respondent received a disciplinary warning and was discharged after failing to adequately respond to a food fight.  The commissioner’s representative acknowledged that the parties presented conflicting evidence regarding the food fight.  We defer to the commissioner’s representative’s duty to weigh conflicting evidence concerning witness credibility. Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995).  Relator argues that she did not hear the food fight because she hears poorly in her right ear and she had been concentrating on completing the bank deposit.  But the restaurant manager testified that the security tape revealed that the food fight took place directly outside the open office door.  The manager also testified that relator completed a “store tour” during the food fight and walked past three employees who were wrestling with shortening when she returned to the office.  Because the commissioner’s representative “found the store manager’s testimony to be more credible than [relator’s] testimony to the contrary,” the record supports the finding that relator was aware of the food fight and did little or nothing to stop it.

It is reasonable for a fast food restaurant employer to expect that its management staff will stop any food fights, discipline employees who were involved, and notify the restaurant manager about what happened, especially when a food fight takes place in the presence of restaurant customers.  Relator testified that she told the employees to stop the food fight, but the employees told the restaurant manager that the food fight continued after relator returned to the office.  Relator testified that she told the employees to clean the ketchup and mustard mess, but admitted that she did not otherwise discipline the employees.  Relator did not tell the restaurant manager about the food fight; a customer who witnessed the food fight called the manager to complain.  The record supports the commissioner’s representative’s finding that relator intentionally disregarded the standards of behavior that Dakota King, Inc. could reasonably expect of its assistant managers during a food fight.

            We conclude that the record reasonably supports the commissioner’s representative’s conclusion that relator was discharged for reasons of misconduct and that she is disqualified from receiving unemployment benefits.


[1] Relator does not challenge her first disciplinary warning for failing to complete an assigned task on time.  Relator’s refusal to comply with Dakota King, Inc.’s reasonable request is misconduct.  See Sandstrom v. Douglas Mach. Corp., 372 N.W.2d 89, 92 (Minn. App. 1985) (refusal to comply with employer’s reasonable request that does not impose an unreasonable burden on employee generally constitutes misconduct).