Susan Bucci, Relator, vs. Tyco Plastics LP, Respondent, Commissioner of Employment and Economic Development, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-1882

 

Susan Bucci,

Relator,

 

vs.

 

Tyco Plastics LP,

Respondent,

 

Commissioner of Employment and

Economic Development,

Respondent.

 

Filed July 13, 2004

Affirmed
Parker, Judge*

 

Department of Employment and Economic Development

File No. 8442 03

 

Susan Bucci, 14358 Hemlock Court South, Apple Valley, MN  55124 (pro se relator)

 

Tyco Plastics, LP, Bloomington Location, c/o ADP-UCM / The Frick Co., P.O. Box 66744, St. Louis, MO  63166-6744 (respondent)

 

Lee B. Nelson, Linda A. Holmes, Minnesota Department of Employment and Economic Development, 390 Robert Street North, St. Paul, MN 55101 (for respondent Commissioner)

 

            Considered and decided by Schumacher, Presiding Judge, Shumaker, Judge, and Parker, Judge.

U N P U B L I S H E D   O P I N I O N

PARKER, Judge

            Pro se relator Susan M. Bucci challenges a decision by a representative of respondent Commissioner of Employment and Economic Development determining that she was discharged from her employment with respondent Tyco Plastics, Inc., for employment misconduct after continuing, despite repeated warnings, to socialize with the front desk receptionist.  Relator argues that she did not commit misconduct because her job required her to talk to the receptionist.  She further argues that she was discharged not for misconduct, but because her supervisor did not like her and treated her unfairly.  Because the record reasonably supports the decision of the commissioner's representative, we affirm.

D E C I S I O N

            Our scope of review in unemployment cases is narrow and limited to determining whether the record reasonably supports the decision of the commissioner's representative.  Tuff v. Knitcraft, 526 N.W.2d 50, 51 (Minn. 1995); Markel v. City of Circle Pines, 479 N.W.2d 382, 383-84 (Minn. 1992).  An employee who is discharged for employment misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4(1) (2002).  The issue of whether an employee has committed a specific act of misconduct is a question of fact.  Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. 1997).  Whether that act constitutes misconduct, however, is a question of law reviewed by this court de novo.  Schmidgall v. Filmtec Corp., 644 N.W.2d 801, 804 (Minn. 2002).

            Employment misconduct is defined to include "any intentional conduct . . . that disregards the standards of behavior that an employer has the right to expect of the employee or disregards the employee's duties and obligations to the employer."  Minn. Stat. § 268.095, subd. 6(a)(1) (2002).[1]  To meet this definition, an employee's conduct must "(1) be intentional and (2) disregard standards of behavior the employer has the right to expect or the employee's duties and obligations to the employer."  Houston v. Int'l Data Transfer Corp., 645 N.W.2d 144, 149 (Minn. 2002).

            In general, a knowing violation of an employer's reasonable policies or requests constitutes misconduct.  See, e.g., Schmidgall, 644 N.W.2d at 804; McGowan v. Exec. Express Transp. Enters., Inc., 420 N.W.2d 592, 596 (Minn. 1988); Montgomery v. F & M Marquette Nat'l Bank, 384 N.W.2d 602, 605 (Minn. App. 1986), review denied (Minn. June 13, 1986); Sandstrom v. Douglas Mach. Corp., 372 N.W.2d 89, 91 (Minn. App. 1985).  A pattern of failing to follow requests or ignoring directions demonstrates a substantial lack of concern for the employer's interests.  Gilkeson v. Indus. Parts & Serv., Inc., 383 N.W.2d 448, 452 (Minn. App. 1986).

            The evidence shows that relator received at least four written warnings between September 2001 and her discharge in April 2003.  In September 2001, relator received a written warning from her then-supervisor regarding talking and disrupting others, including excessive socializing with the front desk receptionist.  She received a second warning in May 2002 from another supervisor, who sent relator an e-mail in which he explained to relator that "[l]eaving your desk for a moment is acceptable but frequently engaging others in personal conversations or having lengthy personal conversations outside of your break is not acceptable."  In a June 2002 annual performance appraisal, the supervisor again warned relator to reduce the time she spent socializing and on personal matters.  In September 2002, relator received a final written warning in which her supervisor stated that her behavior interfered with other employees' responsibilities and presented an unprofessional image to customers, and warned her to limit her activity at the front desk to work-related issues, and only when absolutely necessary.  The supervisor made the decision to terminate relator on April 1, 2003, after continuing to observe her spending "unnecessary time at the front desk which is disruptive and interferes with others being able to do their job tasks."  The supervisor further explained that "[a]lthough you have shown periods of improvement regarding this issue, your improvement has not been consistent or maintained" and that "[y]our behavior regresses to unacceptable levels too often."

            Relator argues that the evidence fails to show that she engaged in excessive, non-business related conversations with the front desk receptionist.  She claims that her job performance was never questioned or affected by her socializing with the receptionist.  She further argues that she was discharged due to personality conflicts with her supervisors and that she was "harassed" or treated unfairly and singled out.

            The commissioner's representative found that relator continued to socialize with the front desk receptionist, while the receptionist was on duty, in direct contravention of her supervisor's directions and warnings.  The representative further found that even if relator and her supervisor had a personality conflict, her supervisor's directives regarding how relator should conduct herself at work were reasonable.  We defer to the commissioner's ability to weigh any conflicting evidence and to make credibility determinations, and conclude that the evidence reasonably supports the decision of the commissioner's representative.  See Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995).

            Thus, the supervisor's requests that relator discontinue her excessive socializing with the front desk receptionist were entirely reasonable.  The supervisor did not prohibit relator from engaging in any conversations with the receptionist or with other employees, and offered legitimate business reasons to support his demand that she discontinue her excessive socializing at the front desk.  Given the repeated, documented warnings relator received over more than a two-year period, her continuing conduct cannot be characterized as unintentional, inadvertent, or innocent.  Rather, as the commissioner's representative concluded, relator's conduct was intentional and constituted a serious violation of the standards of behavior her employer had the right to reasonably expect of her or demonstrated a substantial lack of concern for her employment.

            We therefore affirm the decision of the commissioner's representative that relator was discharged for misconduct. 

            Affirmed.

 

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

[1]  Effective August 1, 2003, this definition of employment misconduct was amended to generally include any intentional, negligent, or indifferent conduct.  2003 Minn. Laws 1st Spec. Sess. ch. 3, art. 2, §§ 13, 20(g); see Minn. Stat. § 645.02 (2002) (providing that laws are effective as of August 1 of the year enacted unless otherwise specified).  On appeal, the commissioner argues that we should apply the 2003 version of the statutory definition because it was in effect at the time his representative issued his decision on November 4, 2003.  But this court has held that we apply the statutory definition in effect at the time an employee is discharged.  Bray v. Dogs & Cats Ltd., 679 N.W.2d 182, 186 (Minn. App. 2004).  We therefore apply the 2002 version, which was in effect when relator was discharged on April 1, 2003.