A06-1467

Douglas G. Williams,

Relator,

vs.

Brooklyn Center Motors, LLC,

Respondent,

Department of Employment

and Economic Development,

Respondent.

Filed June 19, 2007

Reversed

Hudson, Judge

Department of Employment and Economic Development

File No. 5474 06

Douglas G. Williams, 4536 Regent Avenue North, Robbinsdale, Minnesota 55422-7479 (pro se relator)

Brooklyn Center Motors LLC, 6121 Brooklyn Boulevard, Brooklyn Center, Minnesota 55429-4033 (respondent employer)

Lee B. Nelson, Linda A. Holmes, 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 Dietzen, Presiding Judge; Randall, Judge; and Hudson, Judge.

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

HUDSON, Judge

Relator Douglas Williams challenges the unemployment law judge’s decision that relator is disqualified from receiving unemployment benefits because he was discharged for employment misconduct. Because we conclude that relator’s conduct was a single incident not having a significant adverse impact on his employer, we reverse.

FACTS

Relator Douglas Williams worked as a car detailer for Brooklyn Center Motors, LLC. On March 29, 2006, relator was detailing deliveries (recently purchased cars) when the lot manager told him that the sales manager wanted relator to clean up litter from the premises. Relator responded by stating that he was occupied, and that the sales manager could go “f-ck himself.” The lot manager recited relator’s latter comment to the sales manager, who discharged relator for insubordination.

Relator established a benefits account with the Minnesota Department of Employment and Economic Development (DEED). In his benefits application, relator claims that he acted out of “frustration,” but he never expected the lot manager to actually relay the comment. A DEED adjudicator determined that relator was disqualified from receiving benefits because he was discharged for employment misconduct. Relator appeals.

After the evidentiary hearing, the ULJ found that (1) relator’s job duties included detailing deliveries and cleaning up around the premises, and (2) a preponderance of the evidence showed that relator “refused the direct order of a supervisor . . . and indicated such refusal through his actions and language.” The ULJ concluded that although profanity may be used in the workplace, there was “insufficient testimony or evidence that use of profane, foul or abusive language directed toward a supervisor was a common or accepted practice.” The ULJ did not find credible relator’s claim that he acted in jest. Ultimately, the ULJ concluded that relator’s “foul statement made to one supervisor toward the supervisor directing him to perform an assigned task and his failure to perform the task he believed he was to perform immediately, constitutes insubordination which is misconduct.”

Relator requested reconsideration, arguing that his actions were not insubordination because management had established that his top priority was detailing deliveries. The ULJ affirmed its prior decision stating that relator “fails to offer any new evidence that was not or could not have previously been heard . . . to justify reopening or reversing the [prior] decision.” 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, arguing that the ULJ erred as a matter of law by concluding that his actions amounted to employment misconduct.

When reviewing a ULJ’s decision, this court may reverse or modify if the decision is unsupported by substantial evidence, arbitrary and capricious, or affected by an error of law. Minn. Stat. § 268.105, subd. 7(d) (2006). Whether an employee committed employment misconduct that disqualifies him or her from unemployment benefits is a mixed question of fact and law. Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002). The issue of whether an employee engaged in particular conduct is a question of fact. Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997). We review the ULJ’s factual findings in the light most favorable to the decision, Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996), and we will not disturb them if they are supported by substantial evidence. Minn. Stat. § 268.105, subd. 7(d)(5). However, the issue of whether the employee’s conduct constitutes disqualifying misconduct is a question of law reviewed de novo. Schmidgall, 644 N.W.2d at 804.

An applicant for unemployment benefits is disqualified if “the applicant was discharged because of employment misconduct.” Minn. Stat. § 268.095, subd. 4(1) (2006). “A discharge from employment occurs when any words or actions by an employer would lead a reasonable employee to believe that the employer will no longer allow the employee to work for the employer in any capacity.” Id., subd. 5(a) (2006). Employment misconduct is defined as “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) (2006).

“An employee can commit misconduct by refusing to comply with an employer’s reasonable requests and policies.” Bray v. Dogs & Cats Ltd., 679 N.W.2d 182, 184 (Minn. App. 2004). “The general rule is that if the request . . . is reasonable and does not impose an unreasonable burden on the employee, the employee’s refusal to abide by the request constitutes misconduct.” Vargas v. Nw. Area Found., 673 N.W.2d 200, 206 (Minn. App. 2004), review denied (Minn. Mar. 30, 2004).

Here, it is uncontested that relator (1) refused a direct order to perform an assigned job function, and (2) intentionally expressed his refusal by using profane and abusive language aimed at his supervisor. Although the record shows that the request might have inconvenienced relator, there is no evidence tending to prove that the request placed an unreasonable burden upon relator. Accordingly, we conclude that relator’s conduct deviated from the reasonable standards of behavior his employer had a right to expect from its employees.

However, “a single incident that does not have a significant adverse impact on the employer . . . [is] not employment misconduct” Minn. Stat. § 268.095, subd. 6(a). Neither the relator nor the ULJ address this issue, but respondent addresses this issue in its brief. Generally, issues not briefed on appeal are deemed waived. Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn. 1982). But this court may review any matter as the interest of justice may require. Minn. R. Civ. App. 103.04.

Justice requires consideration of this issue. The ULJ has a duty to “ensure that all relevant facts are clearly and fully developed.” Minn. Stat. § 268.105, subd. 1(b) (2006). But here the ULJ failed to determine whether relator’s conduct was a single incident that did not have a significant adverse impact on his employer.

In determining whether an employee’s conduct had an adverse impact on the employer, courts are to examine the conduct in the context of the employee’s responsibilities. Skarhus v. Davanni’s, Inc., 721 N.W.2d 340, 344 (Minn. App. 2006). In Skarhus, this court held that a cashier’s petty theft had a significant adverse impact on the employer because the employer could no longer trust her to handle cash; thus her conduct undermined the employer’s “ability to assign the essential functions of the job to its employee.” Id. In addition, in Pierce v. DIMA Corp., this court held that absent evidence of a significant adverse impact upon the employer, a single act not constituting theft or mishandling of money does not constitute disqualifying misconduct. 721 N.W.2d 627, 630 (Minn. App. 2006).

Here, respondent argues that use of “profane and obscene” language while refusing to perform a task within the employee’s job description has a significant adverse impact on its ability to “get necessary job functions performed.” But relator’s primary responsibility was detailing cars; thus his refusal to clean up litter did not significantly impact the employer’s ability to assign an essential function of the job to relator. Nor did relator’s conduct constitute theft or mishandling of money. Furthermore, respondent offered no evidence that relator’s conduct had an adverse impact upon its operations. And finally, there is no evidence that any other co-workers heard relator’s comment other than the lot manager, or that the lot manager’s or the sales manager’s authority had been abrogated. Based on the record, we conclude that relator is not disqualified from receiving unemployment insurance benefits because his conduct was a single incident that did not have a significant adverse impact on the employer.

Reversed.