This opinion will be unpublished and

may not be cited except as provided by

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







Michael M. Ryan,





The Archdiocese of St. Paul & Minneapolis,



Commissioner of Employment and Economic Development,




Filed May 24, 2005


Halbrooks, Judge



Department of Employment and Economic Development

File No. 3206 04



Michael M. Ryan, 2915 Walnut Grove Lane North, Plymouth, MN 55447 (pro se relator)


Penelope J. Phillips, Janet C. Ampe, Kristine M. Rock, Felhaber, Larson, Fenlon & Vogt, P.A., 220 South 6th Street, Suite 2200, Minneapolis, MN 55402 (for respondent Archdiocese)


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



            Considered and decided by Lansing, Presiding Judge; Toussaint, Chief Judge; and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N


            Pro se relator challenges the commissioner’s representative’s decision that he was disqualified from receiving unemployment benefits because he was discharged for employment misconduct.  Because we conclude that the decision of the commissioner’s representative is reasonably supported by the record, we affirm. 


            Relator Michael Ryan was employed as a gift planner for the Archdiocese of St. Paul and Minneapolis from September 16, 2001, until January 28, 2004.  In this capacity, Ryan raised funds, worked with planned gifts from stock donations, and cultivated a set of reliable donors for the archdiocese.  He also played a significant role in publishing a quarterly newsletter.  Ryan’s immediate supervisor was Mickey Nickelson, director of resource development for the archdiocese.

            In January 2003, Ryan suffered a back injury while lifting boxes at work.  Ryan testified that before the injury he “never heard” complaints about his job performance but that afterwards he “heard nothing but” complaints.  In contrast, Nickelson testified that she first began to “have problems” with Ryan’s work performance in the summer of 2002 before his back injury.  It was at that time that the archdiocese implemented an administrative-review program aimed at “help[ing] the employee and the employer communicate . . . goal[s] and incentives.”  Nickelson explained the deficiencies in Ryan’s work performance at the time:

[T]here was no depth to [Ryan’s work], it was just a superficial handling of any of his responsibilities and that he had to improve with getting to know the people, documenting it, and then also to ensure that the correspondence that he was responsible for was accurate grammatically and in spelling. 


Nickelson orally communicated this feedback to Ryan but did not document it in writing.  Thereafter, criticism was offered at weekly staff meetings, but it was not until May 2003 that Nickelson began to meet with Ryan individually.  At a June 23, 2003 meeting, Nickelson made it “very clear that [Ryan] was not meeting expectations.”  At this meeting, Ryan allegedly responded by telling Nickelson that she was “the worst supervisor he ever had” and that he did not want to work for her anymore.  Nickelson gave Ryan until September 1 to find a new job and testified that she did not intend to terminate Ryan at that time but rather thought “that he would find another job and leave,” given their mutual dissatisfaction.  After this confrontation, Nickelson held weekly performance-review meetings with Ryan to discuss his job performance.  Ryan believes that these meetings were initiated in order to provide documentation for a future discharge.

            On December 2, 2003, Nickelson gave Ryan a final “disciplinary notice” about his job performance.  The document set forth Nickelson’s expectations and identified a number of deficiencies in Ryan’s job performance.  Specifically, Nickelson wrote, “Your work has shown you have not met the requirements [for the position] and you have demonstrated your unwillingness to take direction from your supervisor.  You have demonstrated your inability to be a good listener, to be precise, detailed and accurate.”  The letter concluded, “Should you not meet these requirement[s] you will be terminated.”  Ryan signed the letter but indicated that he did not agree with its contents. 

            Over the next two months, Nickelson continued to meet with Ryan.  She later testified that Ryan’s job performance did not improve and that he had “a not[-]care attitude and things just didn’t get done.”  Ryan offered a different perspective:

I think what happened was that [Nickelson] felt that I was taking advantage of the Archdiocese for all [the] expenses that I was undergoing for all these different [injury-related] therapies. 


            . . . .


. . .  I did a really good job for the Archdiocese and I’m very proud of it and I think that the problems started with my injury and I think [] Nickelson added to it and her micromanaging me after that was the kiss of death for me.


Finally, on January 27, 2004, Nickelson overheard Ryan leaving a voice mail to a donor, identifying the number and type of stock shares and stating that the stocks had been “lost.”  Nickelson became very upset and asked Ryan to write a script so as to avoid similar communications in the future.  Nickelson testified that Ryan responded by telling her to “write it [her]self.”  Ryan testified that the voice mail was of little consequence, “just a simple thing.”

            Nickelson terminated Ryan the next day for poor job performance.  Ryan applied for unemployment benefits and the Minnesota Department of Employment and Economic Development initially determined that he was ineligible for benefits, having been “discharged for employment misconduct.”  Ryan appealed, and an unemployment-law judge (ULJ) reversed.  The commissioner’s representative subsequently reversed the ULJ, recognizing the conflicting testimony offered by both parties and finding that “[t]he evidence submitted by the employer . . . was more credible.”  Concluding that Ryan was discharged for employment misconduct, the commissioner’s representative stated, “Ryan engaged in an ongoing pattern of indifference towards his duties that showed a substantial lack of concern for the employment.”  This certiorari appeal follows. 


            This court reviews the findings of the commissioner’s representative rather than the findings of the unemployment-law judge.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  The scope of review in economic-security cases is narrow.  McGowan v. Executive Express Transp. Enters., 420 N.W.2d 592, 594 (Minn. 1988).  On certiorari appeal, the findings made by the commissioner’s representative are viewed in the light most favorable to the commissioner’s representative’s decision and where the evidence reasonably sustains the findings they will not be disturbed.  Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).  Further, this court defers to the ability of the commissioner’s representative to weigh conflicting evidence and will not reweigh the evidence on appeal.  Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995). 

            An employee who is discharged for misconduct is ineligible for unemployment benefits.  Minn. Stat. § 268. 095, subd. 4(1) (Supp. 2003).[1]  “Employment misconduct” is defined 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, simply 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.


Minn. Stat. § 268.095, subd. 6(a) (Supp. 2003).  Whether an employee committed disqualifying 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 particular acts is a question of fact.  Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  Whether those acts constitute misconduct is a question of law, which an appellate court reviews de novo.  Ress, 448 N.W.2d at 523.

            Ryan’s primary argument is that his conduct did not constitute employment misconduct.  In his brief he states, “I deny any employee misconduct or disregard of my employer’s interests.  I did make some mistakes like any employee might but they were not excessive and certainly did not reflect intentional and substantial disregard of my employer’s interests.”  But the record reflects that Ryan was given numerous opportunities to correct deficiencies in his job performance and failed to do so.  The record reasonably supports the conclusion that Ryan’s interactions with Nickelson meet the statutory definition of “employee misconduct” as “intentional [and] indifferent,” evincing “a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee” and demonstrating “a substantial lack of concern for the employment.”  Minn. Stat. § 268.095, subd. 6(a).  His job performance went beyond mere “[i]nefficiency, inadvertence, [or] simply unsatisfactory conduct”—the type of behavior specifically excluded from the definition of “employee misconduct.”  Id. 

            Over the course of many months, Ryan demonstrated an indifference to his job duties and showed a substantial lack of concern for his position with the archdiocese.  For example, after the June 2003 meeting when Nickelson made it “very clear that [Ryan] was not meeting expectations,” he told Nickelson that she “was the worst supervisor he ever had.”  Between this meeting and Ryan’s termination, Nickelson testified that Ryan had “a not[-]care attitude and things just didn’t get done.”  Ryan also continuously expressed his dissatisfaction with the job, and Nickelson testified that he had agreed on two occasions to “start looking for another job.”  Ryan himself testified, “I did want to find another job.”  Finally, after Nickelson specifically asked Ryan to write a script for future telephone calls, Ryan told Nickelson to complete the task herself.  The commissioner’s representative’s determination that Ryan’s behavior did not comport with the “standards of behavior [an] employer has the right to reasonably expect of [an] employee” is reasonably supported by the record before us.  Minn. Stat. § 268.095, subd. 6(a); see also McGowan, 420 N.W.2d at 596 (explaining that an employer has a right to expect employees to abide by reasonable instructions and directions).  Even if Ryan thought that the request to write a script was unreasonable, this court has previously noted that an employee’s intentional refusal to perform a task supported the commissioner’s representative’s decision that an employee committed misconduct.  See, e.g., Bibeau v. Resistance Tech., Inc., 411 N.W.2d 29, 32 (Minn. App. 1987) (upholding disqualification from unemployment benefits where employee deliberately chose to disobey her employer’s instructions that she make quality checks because she believed that the order was “stupid”); Daniels v. Gnan Trucking, 352 N.W.2d 815, 816 (Minn. App. 1984) (stating that refusal to unload a truck “was a deliberate act of insubordination” justifying disqualification).  The record supports the conclusion that Ryan’s actions constituted disqualifying misconduct. 

Finally, at the ULJ hearing and in his brief, Ryan offers his own version of events as to what transpired at the workplace, oftentimes in direct conflict with Nickelson’s testimony.  Ryan therefore appears to challenge the factual findings of the commissioner’s representative as a whole.  But those findings are viewed in the light most favorable to the commissioner’s representative’s decision, and, where the evidence reasonably sustains the findings, they will not be disturbed.  Ress, 448 N.W.2d at 523.  Moreover, this court will defer to the commissioner’s representative’s credibility determinations and ability to evaluate conflicting evidence.  Whitehead, 529 N.W.2d at 352.  Because we defer to the commissioner’s representative’s credibility determinations and because there is ample evidence to reasonably sustain the findings of fact, we will not disturb those findings.


[1] This court applies the statute in effect at the time of the employee’s discharge.  Brown v. Nat’l Am. Univ., 686 N.W.2d 329, 331-32 (Minn. App. 2004), review denied (Minn. Nov. 16, 2004).  The 2003 statute became effective on August 1, 2003.  See Minn. Stat. § 645.02 (2004) (explaining that legislation “takes effect on August 1 next following its final enactment”).  Because relator was discharged on January 28, 2004, this court applies the 2003 version of the statute.