This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Denise L. Maki,



Gilbert Dental Service PA,


Commissioner of Economic Security,


Filed August 25, 1998


Peterson, Judge

Department of Economic Security

Agency File No. 8867UC97

Peter B. Knapp, Jennifer L. Lappegaard, Certified Student Attorney, William Mitchell Law Clinic, 875 Summit Avenue, St. Paul, MN 55105 (for relator)

Mary M. Krakow, Fredrikson & Byron, P.A., 1100 International Centre, 900 Second Avenue South, Minneapolis, MN 55402 (for respondent Gilbert Dental Service P.A.)

Kent E. Todd, Minnesota Department of Economic Security, 390 North Robert Street, St. Paul, MN 55101 (for respondent Commissioner of Economic Security)

Considered and decided by Shumaker, Presiding Judge, Davies, Judge, and Peterson, Judge.



Denise Maki appeals from the denial of reemployment insurance benefits, claiming that her actions did not constitute misconduct. We reverse.


Relator Denise Maki worked as a dental assistant for respondent Gilbert Dental Service P.A. from June 1987 to September 30, 1997. Gilbert Dental has offices in Gilbert and in Virginia. From 1994 until her termination, Maki worked at the Virginia office every Wednesday and at the Gilbert office the rest of the week.

When the receptionist at each office took a lunch break, other staff members were required to cover the receptionist's desk. Maki had not been asked to work at the receptionist's desk at either office until Wednesday, September 3, 1997, when Dr. Mark Erickson, one of the dentists at the clinic, told her that she would have to cover for the receptionist in the Virginia office on Wednesdays. Maki did not cover the receptionist desk on September 3, because she had prior lunch plans, but she obtained approval from Erickson before leaving for lunch.

On Wednesday, September 10, the receptionist's desk did not need to be covered because the clinic staff attended a seminar away from the office. On Wednesday, September 17, Maki worked at the receptionist's desk. On September 24, Maki did not work because she had called in sick.

On Tuesday, September 30, Maki told Dr. Kenneth Holbeck, one of the dentists at the clinic, that she didn't have a ride to work the next day (Wednesday, October 1) and that she had arranged for another assistant to work for her. Holbeck and Maki then discussed several transportation options, which included Holbeck's offer to drive Maki to work and Maki taking a day off without pay. Holbeck told Maki that he would discuss the situation with Dr. Erickson. At the end of the workday, Holbeck told Maki that she could not set the work schedule and that she would either have to work in Virginia on Wednesdays or resign. Maki refused to resign, and Holbeck told her not to come back to work. Maki testified that she thought that Holbeck was going to get back to her regarding the options they had discussed earlier in the day and had no idea that she might be fired. Maki provided a statement to the Commissioner that switching assignments with coworkers was "standard procedure," and this statement was not challenged.

The evidence in the record includes Holbeck's two handwritten entries in an employee progress record from September 30, 1997. The first entry states that Maki told Holbeck that she did not want to work in Virginia and that she first claimed to have transportation problems, but then said she did not like working in Virginia and wanted to work in Gilbert instead. At the hearing, Maki denied saying that she did not want to work in Virginia.

Maki was denied reemployment insurance benefits, and she appealed. After a hearing, a reemployment insurance judge found that Maki was discharged from employment because of misconduct that interfered with and adversely affected her employment. The commissioner's representative affirmed the reemployment insurance judge's decision, finding that Maki

in effect, was refusing to perform her duties to work on Wednesdays at the Virginia Office and to relieve the receptionist for lunch.


An employee discharged for misconduct is disqualified from receiving reemployment compensation benefits. Minn. Stat. § 268.09, subd. 10 (Supp. 1997). Whether an employee committed disqualifying misconduct is a mixed question of fact and law. Colburn v. Pine Portage Madden Bros., 346 N.W.2d 159, 161 (Minn. 1984). The factfindings of the commissioner's representative must be sustained on appeal if there is evidence reasonably supporting them. Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995). The final determination of whether an employee committed misconduct, however, is a question of law upon which this court is free to exercise its independent judgment. Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).

A claimant who is discharged from employment by an employer shall not be disqualified from benefits:

(1) unless the claimant was discharged because of misconduct that interfered with and adversely affected that employment.

Minn. Stat. § 268.09, subd. 10.

Misconduct is intentional conduct showing a disregard of:

(1) the employer's interest;

(2) the standards of behavior that an employer has the right to expect of the employee; or

(3) the employee's duties and obligations to the employer. Misconduct also includes negligent conduct by an employee demonstrating a substantial lack of concern for the employment. Inefficiency, inadvertence, simple un-satisfactory conduct, or poor performance as a result of inability or incapacity are not misconduct.

Minn. Stat. § 268.09, subd. 12 (Supp. 1997). "[T]he disqualification provisions of the unemployment compensation statute must be narrowly construed." Prickett v. Circuit Science, Inc., 518 N.W.2d 602, 604 (Minn. 1994).

The commissioner's representative stated:

We are not convinced that the claimant could not get to work because of transportation problems. The evidence indicates that the claimant did not wish to continue working at the Virginia Office and she did not wish to relieve the receptionist for lunch on Wednesdays.

The commissioner's representative found Maki's behavior to be misconduct because she refused her employer's reasonable request. Generally, if an employer's request is reasonable, the employee's refusal to comply with the request constitutes misconduct. Soussi v. Blue & White Serv. Corp., 498 N.W.2d 316, 318 (Minn. App. 1993). The burden is on the employer to prove by the greater weight of the evidence that the employee committed disqualifying misconduct. Ress, 448 N.W.2d at 523.

Maki contends that there is no evidence that she refused to comply with her employer's reasonable request to cover the receptionist's desk on Wednesdays. We agree. After Maki was given this additional responsibility, she never refused to cover the receptionist's desk. There is no evidence that Maki's failure to cover on September 3 was without her employer's consent. On September 10, Maki did not cover because the entire staff was away from the office. On September 17, Maki covered the receptionist desk. On September 24, Maki did not work because she called in sick, and there is no finding that she was not sick. There is no evidence that Maki refused to cover the desk on Wednesday, October 1. Maki was told on Tuesday, September 30, that she would either have to work in Virginia on Wednesdays or resign. When she refused to resign, she was fired. But she did not say that she would not work in Virginia the next day, and she obviously could not have failed to work in Virginia on Wednesday, October 1, when she was fired on Tuesday, September 30.

Even if the commissioner's representative's finding that Maki did not want to work Wednesdays in Virginia is correct, her discussion with Dr. Holbeck about this matter did not constitute intentional misconduct under the statute. Stating that you do not like to perform a task is not refusing to perform the task. Maki was fired before she actually refused her employer's request.

In addition, when an employee has no notice that certain conduct violates an employer's policy, the conduct cannot be characterized as intentional misconduct. Riley v. Transport Corp. of America, 462 N.W.2d 604, 608 (Minn. App. 1990). Maki had no notice that her attempt to make alternative work arrangements on Wednesdays violated any policy of her employer. Maki stated that switching assignments with coworkers was standard procedure. The only evidence of a policy prohibiting employees from trading work assignments came from Holbeck when he fired Maki, telling her that she could not make her own schedule.

Maki's conduct did not rise to the level of intentional misconduct.