This opinion will be unpublished and

may not be cited except as provided by

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





Jose M. Gutierrez,


American Masonry Restoration Corp.,
Department of Employment and Economic Development,


Filed August 2, 2005


Stoneburner, Judge


Department of Employment and Economic Development

File No. 9556 04


Jose M. Gutierrez, 1117 Blaine Avenue, Racine, WI, 53405 (pro se relator)


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


Michael Hart, American Masonry Restoration Corporation, 7701 East River Road, Fridley, MN 55432-2458 (respondent employer)


            Considered and decided by Dietzen, Presiding Judge; Stoneburner, Judge; and Hudson, Judge.

U N P U B L I S H E D  O P I N I O N



Relator Jose Gutierrez challenges the determination of a senior unemployment review judge (SURJ) that relator was discharged for misconduct and therefore disqualified from receiving unemployment benefits.  Because the record supports the SURJ’s decision, we affirm.



Relator satisfactorily worked for American Masonry (employer) as a bricklayer from September of 2001 until November 7, 2003.  Relator voluntarily quit his employment and applied for unemployment benefits, which were denied initially and on appeal.  While further appeal of this claim was pending, relator went back to work for employer.  Employer discharged relator less than two months after his return to work.              Relator again applied for unemployment benefits, and the department initially determined that relator was discharged for reasons other than employment misconduct and granted benefits.  Employer appealed. 

At a hearing before an unemployment-law judge, Mike Hart, president and owner of employer, testified that relator was discharged because relator’s work after he returned was below the quality and amount expected of him based on his previous work for employer and because his attitude was bad—like a “cancer on the job site” compared to his attitude during his previous employment.  Hart testified that in the past, relator had been pleasant, but when he came back to work in April, he was bitter, he complained a lot, and he blamed others for work that was not being performed. 

Hart testified that relator did not maintain the pace of work of those around him, which held up his co-workers.  Hart testified that other employees complained to Hart about this problem.  Hart testified that he talked to relator about this problem twice.  The first time, relator was told that if his work and attitude did not change, he would be discharged.  Relator said he was doing what he could.  Hart did not believe relator because he was aware of relator’s capabilities from his previous employment with the company.  Hart testified that he personally observed that relator was being “messier” and inconsistent in quality despite relator’s assertion that his work was the same as it had been in the past.  Hart also testified that relator would not follow the foreman’s instructions. 

Hart testified that relator asked at one point to be moved from the job site because of his co-workers, but there was no option to do so.  After that, Hart talked to relator once more, on the job site, about improving his attitude and work performance, which were getting worse. 

On May 19, a foreman called Hart and told him that relator was just sitting down and stalling the project.  Hart called relator to his office and discharged him.  Hart testified that he did not remember when he learned relator had filed a second appeal on the original unemployment-benefit disqualification, but it was not a factor in discharging relator because there was no benefit to Hart one way or the other—discharging relator would not affect the earlier claim.

Relator testified that on the day he was terminated he was told to go into Hart’s office.  Hart told him that he was different than he was during his prior employment and that he was not happy to be working there and was not performing his job well.  Hart thought relator was angry about not getting his unemployment benefits.  Relator testified that he was surprised at being discharged.  Relator testified that he had never met with Hart in his office to talk about his performance or moving job sites, and that he never had a problem with coworkers, except one coworker who might have been working too slowly.  Relator testified that his supervisor never told him to work faster or better, and he always followed instructions.  He admitted that Hart talked to him once, along with another Hispanic person, about working faster, and they commented to each other that Hart did not talk to anyone else, and they wondered why everyone else was a supervisor but not them. 

The unemployment-law judge found that relator was terminated for employee misconduct because he had a poor attitude and worked below his capacity.  Relator appealed and submitted a written statement with his appeal.  After further review, the SURJ agreed that relator was discharged for employment misconduct and therefore disqualified from receiving unemployment benefits.  This appeal by writ of certiorari followed.




This courtexamines the decision of the SURJ rather than the decision of the unemployment-law judge.[1]  Kalberg v. Park & Recreation Bd., 563 N.W.2d 275, 276 (Minn. App. 1997).  Considerable deference is given to a decision by the SURJ.  Tuff v. Knitcraft, 526 N.W.2d 50, 51 (Minn. 1995).  We defer to the SURJ’s findings of fact if they are reasonably supported by the evidence in the record.  Ress v. Abbott Nw. Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).  The findings will be disturbed only if the record could not reasonably tend to support them.  Schmidgall v. Filmtec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  Whether an employee’s acts constitute misconduct is a question of law reviewed de novo by this court.  Ress, 448 N.W.2d at 523.  When witness credibility and conflicting evidence are at issue, the reviewing court defers to the SURJ’s ability to weigh the evidence and make those determinations and does not weigh the evidence on review.  Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995).

An employee discharged for employment misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4 (Supp. 2003).[2] In this case, the findings of fact of the SURJ have reasonable evidentiary support, and the findings reasonably support the conclusion that relator was discharged for employment misconduct. 

Minn. Stat. § 268.095, subd. 6(a) (Supp. 2003), provides the definition for employment misconduct:

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.[3]


Relator challenges the SURJ’s findings that he was not working hard, that he was not doing a quality job, and that he received warnings from the employer about improving his work and his attitude.  Respondent argues that the SURJ correctly found that relator “engaged in an ongoing pattern of indifference toward his duties,” properly crediting Hart’s testimony that relator had been warned about his performance. 

Deliberate acts in contravention of an employer’s warnings are misconduct.  Schmidgall, 644 N.W.2d at 806.  Also, generally, refusal by the employee to follow reasonable requests of the employer is misconduct.  Sandstrom v. Douglas Mach. Corp., 372 N.W.2d 89, 91 (Minn. App. 1985).  Requests to improve work performance and attitude, based on an employer’s knowledge of an employee’s capacity, are reasonable requests.  The SURJ concluded that relator’s ongoing inefficiency and bad attitude, after having been warned about the consequences of failing to improve, constituted misconduct.  That conclusion is supported by Hart’s testimony, which the SURJ found more credible than relator’s testimony.  The determination of whether an employee committed a particular act is a question of fact.  Scheunemann v. Radisson South Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  This disagreement between Hart and relator comes down to a credibility determination to be made by the SURJ.  This court defers to the SURJ on these determinations.  Whitehead, 529 N.W.2d at 352.

Inefficiency, inadvertence, simple unsatisfactory conduct, poor performance because of inability or incapacity, and good-faith errors in judgment if judgment was required, are not employment misconduct.  Minn. Stat. § 268.095, subd. 6(a)(2).  But Hart testified that relator had previously demonstrated his efficiency, good attitude, and satisfactory performance and failed to work to capacity and with a good attitude when he returned to work.  Hart testified that relator held back other employees and projects, created a bad attitude at the work site, and did not follow instructions.  Hart’s testimony supports the conclusion that relator was so indifferent to the requirements of his job that he showed a substantial lack of concern, constituting misconduct.


[1] The term “senior unemployment review judge” has replaced “commissioner’s representative for all SURJ decisions released after August 1, 2004.  See 2004 Minn. Laws, ch. 183, § 71.

[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, 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).  The 2004 statute has subsequently been amended.

[3] The statutory definition in effect at the time of the discharge is the definition that controls.  See Brown v. Nat’l Amer. Univ., 686 N.W.2d 329, 332 (Minn. App. 2004), review denied (Minn. Nov. 16, 2004).  The 2003 version of the statute controls in this case.