This opinion will be unpublished and

may not be cited except as provided by

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







Alesha Fischer,





PAL Management, Inc.,



Commissioner of Employment

and Economic Development,



Filed December 28, 2004


Hudson, Judge


Department of Employment and

Economic Development

File No. 15961 03


Laura S. Melnick, Southern Minnesota Regional Legal Services, Inc., 166 East Fourth Street, Suite 200, St. Paul, Minnesota 55101 (for relator)


Todd M. Phelps, Amy Walsh Kern, Leonard, Street and Deinard, P.A., 150 South Fifth Street, Suite 2300, Minneapolis, Minnesota 55402 (for respondent employer)


Lee B. Nelson, Linda A. Holmes, Minnesota Department of Employment and Economic Development, E200 First National Bank Building, 332 Minnesota Street, St. Paul, Minnesota 55101 (for respondent commissioner)


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

U N P U B L I S H E D  O P I N I O N




            Relator brings a certiorari appeal of the commissioner’s representative’s determination that she was discharged for misconduct and therefore disqualified from receiving unemployment benefits.  Because we conclude that (1) substantial evidence does not support the commissioner’s representative’s finding that employer’s request for relator’s signature on the final warning was a request for acknowledgement of relator’s receipt of the warning; and (2) employer’s request that relator sign the final warning or be fired was unreasonable where relator disputed the final warning’s allegation, we reverse.


            Relator Alesha Fischer worked as an assistant manager in customer service for respondent Payday America, a payday loan company, from May 16, 2002, until August 8, 2003.  Relator was disciplined twice during the course of her employment by Susan Barbour, the district manager. 

            During the week of July 16 through July 22, 2003, relator was managing the store because Barbour was on vacation.  On July 22, 2003, Barbour gave relator a written “counseling” that stated, “Shortage of 100.00 on 7/22/03.”  Under the headings, “Improvement Required” and “Suggested Improvement Method,” Barbour wrote:

Crumple crisp Bills so they don[’]t stick together[.]  Keep safe locked at all times.  Count out money when given to you [and] re-count [and] re[-]count again.  When you give money to customer; you count it when you take it out of your drawer [and] you recount it as you are giving it to customer.


Barbour testified that she gave relator the counseling letter because relator called her and told her that she had a shortage of $100 in her drawer.  Relator denied that her drawer was short and instead testified that she reported a co-worker’s drawer was short.  Barbour faxed the counseling letter to relator and asked her to sign a line on the document designated, “Employee Acknowledgement.”  Barbour testified that relator refused to sign the counseling letter, and that she gave relator the option, instead, of making a statement “to defend [herself].”  Relator testified that the counseling “was for another person’s drawer being short,” and that she did not sign the counseling because “[she] didn’t feel that [she] should take responsibility for someone else’s shortage.”  Relator claims she faxed Barbour a defense statement; but Barbour testified that she never received it.

            On August 7, 2003, Barbour faxed relator a “Final Warning.”  Under the heading “Problem Definition,” Barbour wrote, “shortages in cash in store, not able to correctly handle trust register entries.”  Under “Improvement Required,” Barbour wrote, “[s]tay totally out of trust register if you can[’]t enter $ amounts correctly.[[1]]  Must count money correctly.  DO NOT ADD any amount or subtract any amount that is not true to reports.” 

Barbour testified that, in addition to the $100 shortage on July 22, relator’s drawer was $100 short on August 7, 2003.  Barbour also testified that relator made an 11-cent mistake in the trust register during the week Barbour was on vacation.  Barbour further testified that on August 7, 2003, relator called her because there was a discrepancy in the trust register and she did not know how to fix it.  Finally, Barbour testified that relator had made errors in the trust register in the past, but that she did not recall the dates. 

Relator denied that her drawer was $100 short on August 7, 2003.  Relator also testified that, in addition to her co-worker’s drawer being short the week Barbour was on vacation, $100 was missing from the safe, but was found the next day.  Relator admitted that she made the 11-cent mistake in the trust register as well as another 5-cent mistake.  Barbour agreed that relator was following procedure by calling her to report discrepancies in the trust register.

Barbour testified that she called relator and asked if she was going to sign the final warning.  Relator said “no,” and Barbour replied, “if you don’t sign it, turn in your key, don’t come back tomorrow.”  Relator called back to ask if she was being fired and Barbour replied, “yes, you are fired if you don’t sign the final.”  Barbour testified that relator began swearing and screaming at her over the phone and that relator was discharged, in part, for insubordination.  Relator denied yelling and swearing at Barbour, but admitted to raising her voice. 

            Relator testified that she was surprised to get the final warning because, “I feel you should get at least, you know, two or three warnings before you get a final warning.”  Relator also objected to the August 7 warning as a “final” warning because she had never received an initial warning; relator did not consider the July 22 counseling letter a warning because “that was someone else’s $100.”  Additionally, relator would not sign the final warning because she did not “feel it was correct.”  After receiving the final warning, relator told Barbour that she would not sign the warning “because [she] didn’t feel that [she] was incapable of doing [her] job.”  She told Barbour that she had been making entries in the trust register for a year and a half, and that the records show that she can successfully make trust register entries.  Finally, relator indicated that she did not think it was professional for Barbour to fax her the final warning. 

            The commissioner’s representative subsequently determined that the employer discharged relator for employment misconduct, and disqualified her from benefit payments.  This certiorari appeal follows. 




Relator first argues that the commissioner’s representative’s finding that her employer’s request for her signature on the final warning was a request for acknowledgment of receipt only, and not an admission of the allegations within, is not supported by the record.  We agree.

The issue of whether an employee engaged in misconduct is a mixed question of law and fact.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  While this court defers to the commissioner’s representative’s findings of fact if they are reasonably supported by the record, we exercise independent judgment with respect to questions of law.  Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989). 

The commissioner’s representative found, in relevant part, that relator “was simply being asked to acknowledge the warning.”  But Barbour never indicated to relator that she was merely asking her to acknowledge receipt of the final warning when she told relator to sign the document.  Also, nothing in the language of the final warning itself indicated to relator that signing it was merely an acknowledgment of receipt, rather than an admission to the allegations within.  

Furthermore, the parties’ history reveals that signing the final warning would have been tantamount to admitting to the allegations within.  Relator did not sign the initial July 22 counseling letter because she disputed the allegations.  Barbour then offered relator the option of submitting a defense statement, thereby strongly suggesting that signing the final warning was, in effect, an admission of the allegations.  Moreover, because both the July 22 counseling and the August 7 final warning contained the same “Employee Acknowledgement” signature line, relator had no reason to think that the final warning was any different than the counseling letter—i.e., her signature was tantamount to an admission of the allegations.  Therefore, we conclude that the commissioner’s representative’s finding that the employer merely asked relator to sign the final warning as acknowledgment of receipt is not reasonably supported by the record. 

We also reject respondent-commissioner’s argument that unemployment benefits were nevertheless properly denied because relator could not reasonably dispute the contents of the final warning because she admitted to the facts underlying the allegations.  Specifically, respondent-commissioner argues that because relator admitted making 11-cent and 5-cent errors in the trust register entries and relator called Barbour to report other incorrect trust register entries, relator was in fact “not able to correctly handle trust register entries,” as alleged in the final warning. 

Despite evidence that relator had made mistakes in the trust register entries, we conclude that relator could nonetheless validly dispute the employer’s allegation in the final warning that she is “not able to correctly handle trust register entries.”  Relator could agree with the underlying facts, while disagreeing with the ultimate conclusion the employer drew from those facts.  Barbour admitted that relator was following proper procedure by calling to report mistakes in the trust register.  Therefore, it was not unreasonable for relator to dispute that she was not able to correctly handle the trust register entries simply because she had made small mistakes regarding the trust register entries in the past.[2] 


Next, relator argues that she did not commit employment misconduct because Barbour’s insistence that she admit conduct that she disputed was not reasonable.  We agree.

            Whether an employee’s acts constitute misconduct is a question of law which we review de novo.  Ress, 448 N.W.2d at 523.  Employment misconduct is:

any intentional, negligent, or indifferent conduct, on the job or off the job (1) that evinces a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee, or (2) that demonstrates a substantial lack of concern for the employment.

Minn. Stat. § 268.095, subd. 6(a) (Supp. 2003).[3]  A person discharged from employment because of employment misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4(1) (Supp. 2003).[4] 

The general rule is that an employee’s refusal to comply with an employer’s request constitutes misconduct if the request is reasonable and does not impose an unreasonable burden on the employee.  Sandstrom v. Douglas Mach. Corp., 372 N.W.2d 89, 92 (Minn. App. 1985) (holding that employer’s request that employee sign a confidentiality agreement was reasonable where employee was offered the opportunity to sign the agreement and attach a disclaimer). 

Here, the employer placed relator in an untenable situation in which she was required to sign the final warning, even though she disputed the substantive allegations, or be fired.  Thus, the employer imposed an unreasonable burden on relator by forcing her to choose between two unreasonable options.  Employees should not be disqualified from benefits because an employer forced them to choose between confessing to disputed conduct that could be grounds for discharge and possibly constitute employment misconduct; or face discharge for refusing to sign the admission, which might also be grounds for discharge and likewise constitute employment misconduct. 

It is not unreasonable for an employer to require an employee to sign a warning acknowledging receipt of that warning.[5]  But here, the employee was required to admit the allegations and conclusions in the warning—not merely acknowledge receipt of the warning.  Thus, we conclude that the employer’s request for relator’s signature on the final warning was unreasonable because relator disputed the allegation and ultimate conclusion that she was unable to correctly handle trust register entries.  Therefore, we also conclude that relator did not commit misconduct by refusing to sign the final warning.  Because of our holding here, we decline to address relator’s additional argument that various exceptions to the misconduct statute entitle her to unemployment benefits.


[1] Although not entirely clear from the record, a trust register appears to be a record of the day’s transactions; the appropriate figures must be entered in the appropriate columns.

[2] The final warning also alleged that there had been “shortages in cash in store.”  Barbour testified that she was referring, in part, to a cash shortage in relator’s drawer on August 7, 2003.  But relator denied that allegation.

[3] The definition of employment misconduct was amended, effective August 1, 2003.  This court has held that the amended definition applies to cases in which the employee was discharged after August 1, 2003.  Bray v. Dogs & Cats Ltd., 679 N.W.2d 182, 186 (Minn. App. 2004); Brown v. Nat’l Am. Univ., 686 N.W.2d 329, 332 (Minn. App. 2004).  Because relator was discharged on August 8, 2003, after the statute was amended, the amended definition applies to this case.


[4] The revisor’s office inadvertently substituted the term “ineligible for” for the term “disqualified from” in Minn. Stat. § 268.095, subds. 1, 4, 7, 8(a) (Supp. 2003).  See Minn. Stat. § 268.095, subds. 1, 4, 7, 8(a) (2002) (using term “disqualified from”); 2003 Minn. Laws 1st Spec. Sess. ch. 3, art. 2, § 11 (making other changes to Minn. Stat. § 268.095, subd. 1, but retaining term “disqualified from”); 2003 Minn. Laws 1st Spec. Sess. ch. 3, art. 2, § 20(j), (k) (directing revisor to change the term “disqualified from” to “ineligible for” only in Minn. Stat. § 268.095, subd. 12, and then to renumber to Minn. Stat. § 268.085, subd. 13b).


[5] We note here that relator also objected to the final warning because she had not been given a preliminary warning and because she believed it was unprofessional for Barbour to fax the final warning to her.  The commissioner’s representative correctly dismissed these claims as meritless.  Relator cannot dictate her employer’s disciplinary practices and procedures.