A06-547

Shane Bakke,

Relator,

vs.

Ancient Arts Brick & Stone Masonry, Inc.,

Respondent,

Department of Employment

and Economic Development,

Respondent.

Filed January 23, 2007

Affirmed

Hudson, Judge

Department of Employment and

Economic Development

File No. 18324 05

Shane Bakke, 2339 Belfast Street West, Rosemount, Minnesota 55068 (pro se relator)

Ancient Arts Brick and Stone Masonry, Inc., 6101 Norris Lake Road, Anoka, Minnesota 55303 (respondent employer)

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

Considered and decided by Minge, Presiding Judge; Hudson, Judge; and Huspeni, Judge.*

U N P U B L I S H E D O P I N I O N

HUDSON, Judge

Relator challenges the unemployment law judge’s (ULJ) decision that he was disqualified from receiving unemployment benefits because he was discharged for employment misconduct for failing to sign a written warning. Relator argues that (1) he was discharged from employment when the employer called the police to have him removed from the premises; (2) his failure to sign the warning was not based on insubordination but was based on the fact that he had not been given the company policies regarding mandatory overtime; (3) the ULJ did not give sufficient consideration to the appeal because he made his decision the day after the hearing; and (4) he should qualify for benefits because another ULJ determined that another employee (relator’s brother), who was discharged under essentially identical circumstances, was qualified for benefits. We affirm.

FACTS

On November 23, 2005, Shane Jensen, the owner of respondent Ancient Arts Brick & Stone Masonry, Inc. (Ancient Arts), notified all of his employees that work would be mandatory on Saturdays after the Thanksgiving holiday. On Saturday, December 3, 2005, relator and his brother, who was also employed by Ancient Arts, did not report to work as scheduled. When relator and his brother arrived at work on Monday, December 5, 2005, Jensen asked them to sign a document entitled “WARNING RE: Violation of Company Policies,” acknowledging that they had violated the new policy by failing to report to work the previous Saturday. The document included the following language: “Failure to sign this notice shall be considered voluntary self-termination of your employment with Ancient Arts Brick & Stone Masonry, Inc.” Both relator and his brother refused to sign the acknowledgement and relator told Jensen that he would not leave unless he was fired. Jensen eventually called the Orono police to remove relator and his brother from the job site.

A Minnesota Department of Employment and Economic Development adjudicator initially determined that relator was disqualified from receiving unemployment benefits because he quit his job without good reason. Relator appealed that decision and a telephonic hearing was held before a ULJ on January 12, 2006. On January 13, 2006, the ULJ determined that relator was disqualified from receiving benefits because he had been discharged for employment misconduct. Relator requested reconsideration, and on March 1, 2006, the ULJ affirmed his findings of fact and decision. On January 25, 2006, a different ULJ determined that relator’s brother was not disqualified from receiving benefits, finding that he was discharged for reasons other than misconduct. This certiorari appeal follows.

D E C I S I O N

Relator challenges the ULJ’s decision that he is disqualified from receiving unemployment benefits. This court will reverse a ULJ’s decision when it reflects an error of law or when the findings are “unsupported by substantial evidence in view of the entire record.” Minn. Stat. § 268.105, subd. 7(d) (Supp. 2005). “Substantial evidence” means “(1) such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; (2) more than a scintilla of evidence; (3) more than some evidence; (4) more than any evidence; or (5) the evidence considered in its entirety.” Minn. Ctr. for Envtl. Advocacy v. Minn. Pollution Control Agency, 644 N.W.2d 457, 466 (Minn. 2002). We review a ULJ’s factual findings in the light most favorable to the decision. Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996).

Relator first challenges a finding by the ULJ and claims that he was discharged when his employer had him removed from the job site by the police. However, the ULJ determined that relator was discharged for employment misconduct because he refused to sign a written warning and refused to leave the job site when asked to by his employer. The ULJ’s findings are supported by substantial evidence in the record.

An employee who is discharged for employment misconduct is disqualified from receiving unemployment benefits. Minn. Stat. § 268.095, subd. 4(1) (Supp. 2005). Employment misconduct is “any intentional, negligent, or indifferent conduct, on the job or off the job (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.” Id., subd. 6(a) (2004). But “[i]nefficiency, inadvertence, simple unsatisfactory conduct, a single incident that does not have a significant adverse impact on the employer, [or] conduct an average reasonable employee would have engaged in under the circumstances” is not employment misconduct. Id.

Whether an employee committed employment misconduct is a mixed question of fact and law. Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002). Whether an employee committed a particular act is a question of fact, but whether the act is employment misconduct is a question of law, which we review de novo. Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).

An employer has a right to expect its employees to follow reasonable instructions and directions. Vargas v. Nw. Area Found., 673 N.W.2d 200, 206 (Minn. App. 2004), review denied (Minn. Mar. 30, 2004). When an employer makes a reasonable request that does not impose an unreasonable burden on its employee, an employee’s refusal to comply with the request constitutes employment misconduct. Id. “A single incident can constitute misconduct when an employee deliberately chooses a course of conduct that is adverse to the employer. When an employee’s refusal to carry out a directive of the employer is deliberate, calculated, and intentional, then the refusal is misconduct.” Schmidgall, 644 N.W.2d at 806 (citation omitted). The adverse impact of the single incident on the employer must be significant. Minn. Stat. § 268.095, subd. 6(a). A knowing violation of an employer’s directives, policies, or procedures also constitutes employment misconduct because it demonstrates a substantial lack of concern for the employer’s interests. Schmidgall, 644 N.W.2d at 804.

Relator does not dispute that he did not sign the warning, nor does he dispute that he did not leave the job site when requested to by his employer. The employer’s request to sign the warning was reasonable and did not impose an unreasonable burden on relator. By refusing to sign the warning and subsequently refusing to leave the job site when asked, relator deliberately chose a course of action adverse to the employer and demonstrated a substantial lack of concern for his employer’s interests. Id. at 806. Therefore, we conclude that relator’s actions constituted employment misconduct.

Relator also argues that he only refused to sign the warning because he had not been informed of Ancient Art’s policy regarding mandatory work on Saturdays. The record does not support this claim. Relator admitted that his employer told him that Saturdays would be mandatory after Thanksgiving.

Relator also argues that the ULJ did not consider all the relevant facts and made his decision too hastily, but relator offers no legal or factual support for this argument. To the contrary, our review of the decision shows that the ULJ carefully considered the evidence that was before him when making his decision.

Relator’s final argument, that he should qualify for unemployment benefits because a different ULJ determined that his brother was eligible for benefits on the basis of facts that are essentially identical to this case, is unpersuasive. Our review of a ULJ’s decision is limited to examining whether the decision was a reasonable one in light of the facts that were before that ULJ; we conclude it was.

Affirmed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.