This opinion will be unpublished and

may not be cited except as provided by

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








Josephine A. Lee,


Nelson’s Markets, Inc.,

Commissioner of Employment and Economic Development,



Filed July 5, 2005


Wright, Judge


Minnesota Department of Employment and Economic Development

File No. 8464 04



Josephine A. Lee, 3974 420th Street, Harris, MN  55032-3454 (pro se relator)


Nelson’s Markets, Inc., North Branch Location, 6355 Elm Street, P.O. Box 338, North Branch, MN  55056-0338 (respondent)


Lee B. Nelson, Linda A. Holmes, 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 Schumacher, Presiding Judge; Peterson, Judge; and Wright, Judge.

U N P U B L I S H E D  O P I N I O N




Relator was discharged from her employment for making a discourteous comment to a customer.  On certiori appeal from the denial of unemployment benefits, relator challenges the determination of the senior unemployment review judge that she committed employment misconduct.  We affirm.



Relator Josephine Lee was employed by respondent Nelson’s Markets as a grocery bagger.  During her regular shift on April 19, 2004, Lee was assisting customers in the store parking lot.  One of the customers was a woman with her child, a boy who appeared to be three or four years old.  Lee observed that the boy was wearing a dress, a bonnet, and high-heeled shoes.  Lee admits that she told the woman, “If this little guy winds up gay, it’s your fault.”

            The woman reported the comment to a supervisor, who later characterized the woman as extremely distraught.  Based on this incident, the supervisor discharged Lee.  The employee handbook for Nelson’s Markets provides that, when an employee makes a discourteous comment to a customer, the employee may be immediately discharged.

            Lee applied for unemployment benefits from the Department of Employment and Economic Development (Department).  The Department denied the application, finding that Lee had been discharged for employment misconduct.  Lee appealed, and the unemployment law judge reversed, concluding that, because Lee did not intend her comment to the woman to be offensive or discourteous, Lee did not commit employment misconduct.  Nelson’s Markets appealed to a Senior Unemployment Review Judge (SURJ).  The SURJ reversed, finding that Lee intended her comment to be discourteous and concluding that the comment constituted employment misconduct.  This certiorari appeal followed.



We review the decision of the SURJ,[1] notwithstanding a contrary determination by the unemployment law judge.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  In doing so, we view the findings in the light most favorable to the decision and, if supported by reasonable evidence, they will not be disturbed.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  Whether an employee committed 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).  Whether the employee committed a particular act is a question of fact.  Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  Whether the act constitutes employment misconduct is a question of law, which we review de novo.  Schmidgall, 644 N.W.2d at 804.

Lee initially challenges certain findings by the SURJ.  The SURJ found that Lee bagged groceries for the complaining customer, but Lee counters that she did not assist the customer on the day of the incident.  Although Lee correctly observes that nothing in the record supports this finding of the SURJ, any error is harmless because the finding is not determinative of whether Lee committed employment misconduct. 

The SURJ also found that Lee accused the customer of being a bad mother and intended to upset her.  Lee does not deny making the statement.  Rather, Lee claims that her statement was motivated by concern for the boy’s well-being.  When the SURJ credited the testimony of Lee’s supervisor that the customer was emotionally distraught, the SURJ made an assessment of credibility that is entitled to deference from an appellate court.  Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995).  Viewed in the light most favorable to the decision of the SURJ, the evidence of the woman’s emotional state supports the inference that Lee was discourteous and confrontational.  Thus, we conclude that the SURJ did not err in finding that Lee intended to upset the customer.

Lee also challenges the SURJ’s determination that she committed employment misconduct.  An employee who is discharged for employment misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4 (Supp. 2003).[2]  Employment misconduct is defined by Minn. Stat. § 268.095, subd. 6 (Supp. 2003),[3] which provides in relevant part:

            Employment misconduct means 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.


Violation of a rule in an employee handbook may constitute employment misconduct.  Dean v. Allied Aviation Fueling Co., 381 N.W.2d 80, 84 (Minn. App. 1986). 

            Even when a handbook does not inform the employee of the expectations of the employer, employment misconduct has been construed to include offensive or discourteous behavior toward patrons.  Thus, when a nursing home employee knew that discourteous language to a resident could result in discharge, using hostile language against a resident was employment misconduct.  Ideker v. LaCrescent Nursing Ctr., Inc., 296 Minn. 240, 241, 207 N.W.2d 713, 714 (1973); see also Pitzel v. Packaged Furniture & Carpet, 362 N.W.2d 357, 357-58 (Minn. App. 1985) (summarily concluding that aggressive and offensive treatment of customers was employment misconduct).  These cases support the conclusion that courteous treatment of customers is among “the standards of behavior the employer has the right to reasonably expect of the employee” under Minn. Stat. § 268.095, subd. 6. 

            Nelson’s Market had an employee handbook that provided, if an employee made a discourteous comment to a customer, the employee may be immediately discharged.  Because the success of Nelson’s Market depends in part on its reputation with its customers, it was reasonable for Nelson’s Market to expect courteous behavior from its employees.  By intentionally making a comment that caused a customer to be upset and emotionally distraught, Lee violated the standards of behavior that had been set by Nelson’s Market.  Lee’s actions evinced a serious violation of standards that Nelson’s Market had the right to reasonably expect from its employees.  Accordingly, the SURJ did not err in concluding that Lee committed misconduct and, therefore, was disqualified from receiving unemployment benefits.


[1] Prior to the amendment of the unemployment benefits statutes in 2004, the commissioner’s representative reviewed decisions of the unemployment law judge.  The amendment created the new position of SURJ, who acts in a similar capacity as the commissioner’s representative under the previous scheme.  2004 Minn. Laws ch. 183, § 71 (codified at Minn. Stat. § 268.105, subd. 2 (2004).  Thus, similar principles govern the standards of review for decisions of a SURJ.

[2] The revisor’s office inadvertently substituted the term “ineligible for” for the term “disqualified from” in Minn. Stat. § 268.095, subds. 1, 4, 7, and 8(a) (Supp. 2002) (using term “disqualified from”); 2003 Minn. Laws 1st Spec. Sess. ch. 3, art. 2 § 20G), (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).

[3] The definition of employment misconduct has since been amended, 2004 Minn. Laws ch. 183, § 86, but we apply the definition in effect at the time of the discharge, Brown v. Nat’l Am. Univ., 686 N.W.2d 329, 332 (Minn. App. 2004), review denied (Minn. Nov. 16, 2004).