This opinion will be unpublished and

may not be cited except as provided by

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

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1662

 

 

Dala Eam,

Relator,

 

vs.

 

Mamac Systems, Inc.,

Respondent,

 

Commissioner of Employment and Economic Development,

Respondent.

 

 

Filed June 21, 2005

Affirmed

Robert H. Schumacher, Judge

 

Department of Employment and Economic Development

File No. 583404

 

 

Debra J. Teuchert, 300 Metro Executive Center, 7800 Metro Parkway, Bloomington, MN 55425; and

 

Wayne W. Chapman, 421 East Traveler's Trail, Suite 110, Burnsville, MN 55337 (for relator)

 

Eric D. Satre, Connor, Satre & Schaff, LLP, 925 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN 55402 (for respondent Mamac)

 

Linda A. Holmes, Department of Employment and Economic Development, E-200 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101-1351 (for respondent Commissioner)

 

 

            Considered and decided by Schumacher, Presiding Judge; Wright, Judge; and Poritsky, Judge.*

U N P U B L I S H E D   O P I N I O N

ROBERT H. SCHUMACHER, Judge

Appellant Dala Eam challenges the decision of the Commissioner of Employment and Economic Development that she was disqualified from receiving unemployment benefits.  Eam argues the commissioner's representative erred in concluding that she had committed employment misconduct.  We affirm.

FACTS

Eam began working for respondent Mamac Systems, Inc. in September 1993; she was discharged from employment on January 9, 2004.  The commissioner's representative concluded Eam was disqualified from receiving unemployment benefits because she had been discharged for employment misconduct.  The commissioner's representative found the following conduct was the reason for Eam's discharge: when Director of Manufacturing Diane McLean requested that Eam comply with the medical restrictions that she not lift more than ten pounds, Eam responded that she would "lift whatever she pleased"; following McLean's request, Eam complained to a temporary employee, whom Eam supervised, that McLean was a "bitch"; and when Eam's supervisor requested she provide him with shipping labels, Eam called him a "f---ing asshole."      

D E C I S I O N

 Whether a person is disqualified from receiving unemployment benefits is a mixed question of law and fact.  Schmidgall v. Filmtec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  The commissioner's factual findings are reviewed in the light most favorable to the commissioner's decision and will not be disturbed "as long as there is evidence that reasonably tends to sustain those findings."  Id.  "A Commissioner's representative's determination regarding the reason for an employee's separation is a factual determination."  Embaby v. Dep't of Jobs & Training, 397 N.W.2d 609, 611 (Minn. App. 1986).  "Whether a particular act constitutes disqualifying misconduct is a question of law, which this court reviews de novo."  Schmidgall, 644 N.W.2d at 804. 

Here, the record contains written statements from Eam's supervisor in which he states, " I went to [Eam] and asked her to get some labels . . . [she] turned around . . .  and said to me 'you f---ing asshole'"  and "[Eam] also told the temp [employee] that [McLean] asked her to do many things at the same time and called [McLean] a bitch."  Further, McLean testified that after she gave Eam a written warning about lifting boxes that weighed more than ten pounds, Eam "basically threatened . . . that she would go back in to the stockroom and lift whatever she pleased."  This evidence supports the commissioner's representative's findings regarding the acts that caused Eam's separation from employment.    

We next turn to whether these acts constitute employment misconduct. 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."  Minn. Stat. § 268.095, subd. 6(a) (Supp. 2003).  An employee who responds to his or her employer's reasonable request with profanity, or refuses to follow the request, has committed employment misconduct.  See, e.g. Soussi v. Blue & White Serv. Corp., 498 N.W.2d 316, 318 (Minn. App. 1993).  Eam's profane response to her supervisor's reasonable request and her defiant response to McLean's reasonable request that Eam comply with her lifting restrictions constitute employment misconduct.  We conclude therefore that Eam is disqualified from receiving unemployment benefits.  See Minn. Stat. § 268.095, subd. 4 (Supp. 2003) (providing employee who is discharged for employment misconduct is disqualified from receiving unemployment benefits).

Eam argues that her conduct is not employment misconduct because it should be considered a single incident that did not have a significant adverse impact on Mamac.  See Minn. Stat. § 268.095, subd. 6(b) (Supp. 2003) (stating single incident is not employment misconduct unless it has "significant adverse impact on the employer").  Eam's conduct, involving two different responses to two different superiors at different times and locations, does not fall within the common meaning of "single incident."    See Northern States Power Co. v. Comm'r of Revenue, 571 N.W.2d 573, 575 (Minn. 1997) (stating "words of the statute are to govern [and] are to be given their common and approved usage"); The American Heritage Dictionary 1294 (4th ed. 2002) (defining single as "Consisting of one in number").  

Affirmed.