This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






Kristi A. Montanari,





Sand Companies, Inc.,



Commissioner of Employment and Economic Development,



Filed ­­­May 3, 2005


Dietzen, Judge


Department of Employment and Economic Development

Agency File No. 5554 04


John M. Baker, H. Allen Blair, III, Greene Espel, PLLP, 200 South Sixth Street, Suite 1200, Minneapolis, MN 55402-1415 (for relator)


Lee B. Nelson, Linda A. Holmes, Department of Employment and Economic Development, E200 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101-1351 (for respondent Commissioner of Employment and Economic Development)


Frederick L. Grunke, Joseph M. Bromeland, Rajkowski Hansmeier, Ltd., 11 Seventh Avenue North, P.O. Box 1433, St. Cloud, MN 56302 (for respondent Sand Companies, Inc.)


            Considered and decided by Dietzen, Presiding Judge; Shumaker, Judge; and Huspeni, Judge.*

U N P U B L I S H E D   O P I N I O N



            By writ of certiorari, relator challenges the determination of the representative of the Commissioner of Employment and Economic Development disqualifying relator from unemployment benefits.  Because the commissioner’s representative’s conclusion that relator was discharged due to misconduct is adequately supported by the record, we affirm. 


            Relator Kristi Montanari was a full-time employee of respondent Sand Companies, Inc. (Sand), a construction and property-management company, from June 2002 to February 2004.  Relator’s employment was terminated on February 9, 2004.  During her employment with Sand, relator received five warnings for various acts of employment misconduct.  In February 2003, relator received a warning because she did not report for work one day and did not contact her supervisor.  A few weeks later, relator received a warning after she sent an e-mail to her supervisor representing that various assigned cleaning tasks had been completed; upon inspection, her supervisor determined that they had not been completed.  In March 2003, relator received a warning because she failed to timely submit her timecard.  In November 2003, after a set of master keys used for resident housing was stolen from relator’s purse on a Friday night, relator did not report the keys as missing until the following Monday.  Sand’s human-resources manager testified that a resident was scheduled to move in that weekend, and management had attempted repeatedly but unsuccessfully to contact relator.  The manager further described that relator’s failure to report the lost keys over the weekend could have resulted in danger to 82 affected homes if the keys had ended up in the wrong hands, and Sand incurred additional costs to change the locks.   

            In December 2003, relator received a final warning pertaining to two incidents on Sand’s company trip to Mexico.  The first occurred when relator left her hotel unaccompanied by other employees, which violated Sand’s e-mail warning that it was a safety violation to travel outside of the party.  The second occurred when relator did not accompany a colleague back to the hotel after dinner but stayed out until 8:30 a.m. the next morning.  Sand’s written warning provided that “[n]o further warnings will be given and any future policy violations, misconduct, carelessness, or substandard work will not be tolerated and shall lead to immediate termination.” 

            On February 6, 2004, relator awoke and felt ill due to a recently diagnosed kidney infection.  She left a message for her supervisor at 8:00 a.m. advising that she would not be in to work that day.  Testimony varied on this issue, but the commissioner’s representative found that the message to the supervisor was “garbled” and unintelligible. Relator was scheduled to work at 10:00 a.m. but was absent; her supervisor called and paged relator during the day but received no response.  Sand’s policy requires that employees notify supervisors by 7:00 a.m. if they cannot attend work on a certain day.  Additionally, the policy states that employees, such as relator, who possess emergency pagers are required to answer a page immediately.  If an illness prevents a response, the employee must transfer the pager to someone who is able to respond to emergency pages.  Sand’s vice president of management testified that employees must answer their emergency pagers because, for example, “a broken sprinkler head at 180 gallons a minute certainly can destroy a multi-million dollar asset in a matter of minutes.”  Sand terminated relator’s employment on February 9, 2004. 

Relator applied for unemployment benefits, and a Department of Employment and Economic Development adjudicator concluded that relator was eligible for benefits.  Sand appealed, an evidentiary hearing was held before an unemployment law judge (ULJ), and the ULJ affirmed the initial adjudication.  Sand further appealed and the commissioner’s representative reversed, holding that relator was not eligible for unemployment benefits because she was terminated due to a pattern of employment misconduct.  This certiorari appeal follows. 



On certiorari appeal, this court must examine the decision of the commissioner’s representative, rather than that of the ULJ.  Kalberg v. Park & Recreation Bd. of Minneapolis, 563 N.W.2d 275, 276 (Minn. App. 1997).  The commissioner’s representative’s 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).  Whether an employee committed an act alleged to be misconduct is a question of fact, but whether that act constitutes misconduct is a question of law.  Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  A reviewing court will affirm if the findings of fact “are not without support in the evidence” and if “the conclusion on those facts is not contrary to the statutory mandate.”  Colburn, 346 N.W.2d at 161. 

An applicant is disqualified from receiving unemployment benefits if the applicant’s employment was terminated due to misconduct.  Minn. Stat. § 268.095, subd. 4(1) (Supp. 2003).  State law defines misconduct as

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.

Inefficiency, inadvertence, simple unsatisfactory conduct, a single incident that does not have a significant adverse impact on the employer, conduct an average reasonable employee would have engaged in under the circumstances, poor performance because of inability or incapacity, good faith errors in judgment if judgment was required, or absence because of illness or injury with proper notice to the employer, are not employment misconduct.


Id., subd. 6(a) (Supp. 2003). 


            Aggregation of Misconduct

            It is undisputed that before relator was terminated she received five warnings for her employment conduct over the span of ten months.  “As a general rule, refusing to abide by an employer’s reasonable policies and requests amounts to disqualifying misconduct.”  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  A single, deliberate act by an employee that is adverse to the employer may constitute misconduct.  Id. at 806.  Additionally, “several instances of behavior unrelated in time or tenor may, as a whole, support a determination of misconduct under the last straw doctrine.”  Monyoro v. Marriott Corp., 403 N.W.2d 325, 328 (Minn. App. 1987) (quotation omitted).  The “last straw” doctrine has been adopted by Minnesota courts and described “as a situation ‘in which the final infraction, though unrelated to previous infractions, is of such a nature that it demonstrates conclusively the employee’s utter disregard of the employer’s interests.’”  Id. (quoting Giddens v. Appeal Bd. of Mich. Employment Sec. Comm’n, 145 N.W.2d 294, 298 (Mich. Ct. App. 1966)).

            Relator argues that, because the warnings that occurred prior to her termination corresponded to acts that did not amount to misconduct, the warnings cannot be aggregated to establish misconduct.  We disagree.  Caselaw has concluded that appellate courts may construe a pattern of violations to ultimately determine that a discharge was based on misconduct.  See, e.g., Barstow v. Honeywell, Inc., 396 N.W.2d 714, 716-17 (Minn. App. 1986) (affirming determination of misconduct by analyzing history of employee’s tardiness, misbehavior, and insufficient work product); Gilkeson v. Indus. Parts & Serv., 383 N.W.2d 448, 452 (Minn. App. 1986) (“[The employee] demonstrated a substantial disregard of his employer’s interests by his pattern of failing to follow policies and procedures and ignoring directions and requests.”); Campbell v. Minneapolis Star & Tribune Co., 345 N.W.2d 803, 804 (Minn. App. 1984) (affirming determination of misconduct because employee received more than 20 reprimands, as well as final warning that additional indiscretions would result in termination); Flahave v. Lang Meat Packing, 343 N.W.2d 683, 686-87 (Minn. App. 1984) (affirming determination of misconduct after employee received repeated warnings regarding absenteeism). 

            Here, relator’s documented pattern of behavior constitutes misconduct.  At different times, relator was absent from the office without explanation, did not inform Sand that the master keys were missing, thus potentially exposing tenants to theft, and did not comply with company policy during the trip to Mexico.  Contrary to relator’s arguments that her acts were merely inadvertent or errors in judgment, we conclude that the violations may be aggregated to determine that relator clearly displayed “a substantial lack of concern for [her] employment.”  Minn. Stat. § 268.095, subd. 6(a)(2).  Relator’s violations, therefore, adequately support the commissioner’s representative’s decision.  See Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995) (observing that decisions of the commissioner’s representative are accorded “particular deference”).     


            Final Act of Misconduct

            Relator argues that she did not commit employment misconduct on February 6, 2004, when she failed to call in sick by 7:00 a.m. or answer her emergency pager because she gave notice of her absence by 8:00 a.m. and was too ill to answer her pager.  We disagree.  Notifying a supervisor of an illness by 7:00 a.m. is Sand’s established policy as found in its employee handbook, and the commissioner’s representative correctly observed that Sand “has a right to expect that an employee will report to work as scheduled and follow the employer’s reasonable policies and procedures.”  The commissioner’s representative accepted the testimony from Sand’s representatives that relator did not give notification of her illness by 7:00 a.m., and the record supports this conclusion.   

It is undisputed that relator did not answer her emergency pager or arrange for its transfer to another employee.  Failure to answer or transfer the emergency pager is a serious act of misconduct because it exposed Sand to potentially serious liability, and relator was aware of that risk.  On this point, Sand’s human-resources manager testified that employees must answer their emergency pagers within 30 minutes, because residents are instructed to call the pager when there is a problem on the property.  If an employee does not answer an emergency page, Sand and its residents may be subject to problems such as broken furnaces, malfunctioning sprinkler heads, damage to common areas, or destruction of personal property.  Finally, given that relator had received a “last straw” warning a little over one month earlier, relator was on notice that any subsequent violation, however minor, would result in termination.   

            On this record, relator’s conduct on February 6, 2004, along with her earlier actions, “evince a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee, or . . . demonstrates a substantial lack of concern for the employment.”  Minn. Stat. § 268.095, subd. 6(a).  Therefore, the commissioner’s representative did not err by disqualifying relator from receiving unemployment benefits due to misconduct.   


* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.