This opinion will be unpublished and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

A05-575

 

Robin J. Rabuse,

Relator,

 

vs.

 

J.A.L. Amoco Service,

Respondent,

 

Department of Employment and Economic Development,

Respondent.

 

Filed December 13, 2005

Affirmed

Randall, Judge

 

Department of Employment and Economic Development

Agency File No. 16175 04

 

 

Robin J. Rabuse, 867 Hague Avenue, Apt. #1, St. Paul, MN 55104 (pro se relator)

 

J.A.L. Amoco Service, Attn: Charles W. Manson, 2421 Larpenteur Avenue West, St. Paul, MN 55113 (respondent)

 

Linda Alison Holmes, Department of Employment and Economic Development, 332 Minnesota Street, Suite E200, St. Paul, MN 55101-1351 (for respondent DEED)

 

 

            Considered and decided by Randall, Presiding Judge; Toussaint, Chief Judge; and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

            Relator challenges the determination of the senior unemployment review judge (SURJ) that relator was discharged from her employment for misconduct and is not entitled to unemployment benefits.  The record supports the findings of the SURJ.  We affirm.

FACTS

            Relator Robin Rabuse worked for respondent J.A.L. Amoco as a cashier from September 2001 until September 2004.  In August 2004,  relator’s manager told relator that a customer had complained about her.  Specifically, the customer had told the manager that relator was rude in showing him where the key and the restroom were.  The manager told relator that, because there had been previous complaints of rudeness, she would be fired if there were more complaints. 

            On September 23, 2004, two long-time customers complained about relator’s rudeness.  The complainants wrote out descriptions of the incidents.   The first complainant was a man who wanted to fill out a work-order form for work to be done on his car. When he asked relator where the work-order forms were, she “jerked her head toward the back of the store and gruffly said, ‘Counter,’ then continued the conversation she was having with an acquaintance.”  When the man returned the form and asked if he should give it to relator, “She heaved a sigh and grumpily said, ‘Well, since you’ve already brought it up to me, I’ll take it.’ . . . [S]he couldn’t have been ruder to me.’”  The second complainant was an elderly woman customer for whom the cashiers at the station had always pumped gas.  She asked relator to pump gas.  She wrote that “[Relator] was rude to me” and “said she would come out and show me how to pump gas.”   The woman went to another station for her gas.

            Relator was discharged because of repeated customer complaints about rudeness. After she applied for unemployment benefits, a department adjudicator determined that she had been discharged for misconduct.  Relator appealed.  Following a telephone hearing, an unemployment law judge reversed and determined that relator had not been discharged for misconduct.  Respondent again appealed, and a senior unemployment review judge (SURJ) reversed, finding that relator had been discharged for misconduct.  Relator challenges that ultimate determination.

D E C I S I O N

            Whether an employee is ineligible for unemployment benefits for reasons of misconduct is a mixed question of fact and law, but whether the employee’s acts constitute misconduct is a question of law that this court reviews de novo.  Schmidgall v. FilmTec Corp., 644 N.W. 2d 801, 804 (Minn. 2002).  This court reviews factual findings in the light most favorable to the decision based on them and does not disturb them if the evidence reasonably tends to sustain them.  Id.

Misconduct is defined as “any intentional, negligent, or indifferent conduct . . . (1) that displays clearly a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee, or (2) that displays clearly a substantial lack of concern for the employment.”  Minn. Stat. § 268.095, subd. 6(a) (2004).    As a general rule, refusing to abide by an employer’s reasonable policies and requests amounts to disqualifying misconduct.  Schmidgall, 644 N.W.2d at 804.  Rudeness to customers has been found to be misconduct.  See, e.g., Montgomery v. F & M Marquette Nat. Bank, 384 N.W.2d 602, 605 (Minn. App. 1986) (“Commissioner’s determination that Montgomery engaged in misconduct is sufficiently supported by the evidence in the record of her rudeness . . . .”).  Continuing a course of conduct after an employer’s warning to refrain from it is also misconduct.  See, e.g., Schmidgall,644 N.W.2d at 806 (failure to report injury after repeated warnings to do so was misconduct); Brown v. National American University,686 N.W.2d 329, 329 (Minn. App. 2004) (continued practice of borrowing money from students despite warnings to refrain from that practice was misconduct) review denied (Minn. Nov. 14, 2004); Gilkeson v. Indus. Parts & Serv., Inc., 383 N.W.2d 448, 452 (Minn. App. 1986) (pattern of failing to follow policies and procedures and ignoring directions and requests was misconduct);  Campbell v. Minneapolis Star & Trib. Co., 345 N.W.2d 803, 805 (Minn. App.1984) (repeated violations of employer’s work rules and neglect of job responsibilities demonstrated employment misconduct); Evenson v. Omnetic’s, 344 N.W.2d 881, 883 (Minn. App. 1984) (continued tardiness after several warnings was misconduct).

Relator was rude to at least two of respondent’s customers after having been warned that respondent expected her to treat customers courteously.  Relator did not deny that both of the described incidents occurred.  Her explanation for the first is that she was talking to her son when a customer wanted to know about work orders, and her explanation for the second incident is that she was busy in the store when the elderly woman asked her if she would pump her gas.

We find the evidence reasonably sustains the SURJ’s finding that relator’s rude conduct violated the standards of behavior that her employer had a right to expect.

Affirmed.