State of Minnesota, Respondent, vs. Angela Yvonne Gibson Lee, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1998).

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-00-531

Raymond M. Duffy,

Relator,

vs.

Red Line Medical Supply, Inc.,

Respondent,

Department of Economic Security,

Respondent.

Filed October 31, 2000

Reversed
Klaphake, Judge

Department of Economic Security

File No. 162099

Stephen W. Cooper, Stacey R. Everson, The Cooper Law Firm, Chartered, 800 Ceresota Building, 155 Fifth Avenue South, Minneapolis, MN  55401 (for relator)

Christopher J. Harristhal, Larkin, Hoffman, Daly & Lindgren, Ltd., 1500 Norwest Financial Center, 7900 Xerxes Avenue South, Bloomington, MN  55431-1194 (for respondent Red Line Medical Supply)

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

            Considered and decided by Klaphake, Presiding Judge, Lansing, Judge, and Mulally, Judge.*

KLAPHAKE, Judge

Relator Raymond Duffy challenges a decision by a representative of respondent Commissioner of Economic Security disqualifying him from receiving reemployment insurance benefits.  The commissioner's representative concluded that Duffy was discharged from his employment with respondent Red Line Medical Supply, Inc., for misconduct, specifically, insubordination.  Duffy argues that he was terminated solely because he informed his supervisors that he intended to take a long-approved and scheduled vacation; Red Line argues that Duffy was terminated not only for his conduct on this vacation issue, but also for previous insubordinate, disruptive, and disrespectful conduct.

Because the commissioner's representative found that Duffy's supervisor knew about the vacation months before it was scheduled to begin and had indicated that she had no concerns, and because there is no evidence in the record to show that Duffy ever expressed his dissatisfaction with his supervisors to co-workers or to Red Line's customers, we conclude that he was not discharged by Red Line for disqualifying misconduct.  We therefore reverse the decision of the commissioner's representative.

            An employee is disqualified from receiving benefits if discharged from employment due to misconduct.  Minn. Stat. § 268.095, subd. 4 (1998); see Minn. Stat. § 268.095, subds. 4, 5, 6 (1998) (defining discharge and misconduct).  "Misconduct" is defined as intentional conduct reflecting a disregard for

(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.

Minn. Stat. § 268.095, subd. 6.

            Red Line asserts that it discharged Duffy because he informed his supervisors that he was going on a vacation even though they informed him that the vacation was not approved and that he would be fired.  An employer has the right to expect an employee to follow reasonable orders or instructions.  See McGowan v. Executive Express Transp. Enters., Inc., 420 N.W.2d 592, 596 (Minn. 1988) ("One in charge of a business must be allowed to expect that reasonable orders will be followed.").  Thus, if an employer's request is reasonable, an employee's refusal to accede to that request may constitute misconduct.  See Soussi v. Blue & White Serv. Corp., 498 N.W.2d 316, 318 (Minn. App. 1993).

            The commissioner's representative found that Red Line's policy required employees to post anticipated vacation days on a calendar and receive oral approval from their supervisor.  The commissioner's representative further found that in February 1999, Duffy had written on the calendar his intent to take vacation from June 14 through June 27, and that in March 1999, his supervisor told him that she did not think his vacation would be a problem.  On May 6, Duffy was given a medical leave of absence; when he returned to work on June 8, his supervisor informed him that she was denying his vacation, which was to begin the following week.  Duffy objected and stated that he was going to take his vacation.  Red Line immediately discharged him.  Under these circumstances, Duffy's reaction was not unreasonable or insubordinate:  he had planned to take his daughter to Alaska and had already purchased airline tickets. We cannot conclude that Duffy's conduct rose to the level of misconduct so as to disqualify him from receiving benefits.

            Red Line also asserts that it discharged Duffy for insubordination, due to his negative and disrespectful attitude.  The evidence shows that prior to his medical leave of absence, Duffy had been warned in writing several times to change his negative and disrespectful attitude toward his immediate supervisor and his department head.  But, contrary to the conclusions reached by the commissioner's representative, there is no evidence in the record to show that Duffy ever voiced his discontent or negative attitude to Red Line customers or to other Red Line employees, outside of those supervisors and employees in the human resources department whom he went to for advice.  Indeed, two of his co-workers testified that he always acted appropriately and professionally, and denied that he spoke disparagingly of his supervisors.  In addition, Duffy was an 11-year employee who, prior to the change in management, had always received excellent performance reviews.  While deliberate acts of insubordination that adversely affect an employer's business may disqualify an employee from receiving benefits, Red Line has not shown that Duffy's attitude adversely affected its business.  See Soussi, 498 N.W.2d at 318 (former corporate president committed misconduct by deliberately disregarding board's resolution precluding employees from entering into contracts without prior board approval); see also Marz v. Department of Employment Servs., 256 N.W.2d 287, 289 (Minn. 1977) (burden of proving otherwise eligible employee is disqualified is on employer).

            We therefore reverse the decision of the commissioner's representative.

            Reversed.

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