Department of Employment and Economic Development File No. 18469 02
Considered and decided by Klaphake, Presiding Judge; Willis, Judge; and
The opinion of the court was delivered by: G. Barry Anderson, Judge
Relator Herb Floan challenges the commissioner representative's decision that he was discharged for misconduct, arguing that he was fired for poor job performance, which, under Minn. Stat. § 268.095, subd. 6(b) (2002), is not employment misconduct. We affirm.
Floan began work for Jennie-O Turkey Store, Inc. ("Jennie-O") on September 30, 2000. Jennie-O conducted a performance review on October 8, 2002, giving Floan an overall rating of "2A" or "needs improvement." Jennie-O has a policy that if a 2A is given on a performance review, a performance improvement plan must be completed in order to successfully move the employee toward a "fully competent" rating. Because of Floan's 2A performance rating, on October 8, 2002, Jennie-O initiated a 90-day improvement plan.
The improvement plan contained four objectives as guidelines to assist Floan in completing the plan. These were computer training, preparing and issuing monthly reports to the mill areas, preparing quarterly budget and financial reports, and improving customer service. Jennie-O told Floan the 2A rating was temporary and that after 90 days he would either return to a fully competent rating or his rating would become unacceptable. Jennie-O stated in the cover memo to the plan that the improvement process was necessary for Floan to meet the requirements of his position, and warned that his job was in jeopardy. Jennie-O also offered the support and assistance of management to help him meet the requirements. After receiving the plan, Floan told his supervisor he needed some time to think about whether he would participate.
On October 14, 2002, Floan indicated to his supervisor that he did not intend to perform any portion of the improvement plan stating he did not feel the requested reports were necessary, he did not want to be micro-managed, and he did not have time in his workday to complete the reports. Floan asked his supervisor whether noncompliance with the improvement plan would result in termination of employment. His supervisor stated he did not know and that he would need to speak with someone else to find out. On October 24, 2002, Jennie-O notified Floan of its intention to discharge him effective November 1, 2002, because of his refusal to complete the improvement plan.
Floan established a benefit account with the Minnesota Department of Employment and Economic Development, effective November 3, 2002. In a decision dated November 22, 2002, the Minnesota Department of Economic Security disqualified Floan from receiving unemployment benefits because he was discharged due to employment misconduct. Floan appealed. An unemployment law judge affirmed the decision. After another appeal, the commissioner's representative issued the final agency decision, affirming the prior decisions and concluding that Floan was discharged because of his refusal to complete the performance improvement plan and that the refusal constituted disqualifying employment misconduct. This appeal followed.
An employee discharged for misconduct is disqualified from receiving unemployment benefits. Minn. Stat. § 268.095, subd. 4(1) (2002). Floan argues he should not be disqualified from unemployment benefits for misconduct because he was fired for poor job performance due to inability, which, under Minn. Stat. § 268.095, subd. 6(b), is not employment misconduct. Decisions of the commissioner's representative are accorded particular deference. Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995). Whether an employee has engaged in conduct that disqualifies him from unemployment benefits is a mixed question of fact and law. Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002). A determination of the commissioner's representative regarding the reasons for an employee's separation is a factual determination that is to be reviewed in the light most favorable to the decision and may not be disturbed if there is evidence reasonably tending to sustain the finding. Markel v. City of Circle Pines, 479 N.W.2d 382, 383-34 (Minn. 1992). Whether the actions constitute misconduct is a question of law reviewable de novo on appeal. Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).
The commissioner's representative determined the reason for Floan's discharge was his refusal to complete the performance improvement plan. While Floan asserts he was discharged because of the poor grade on his job performance review, not because of his refusal, there is substantial evidence in the record supporting the representative's factual finding. First, instead of terminating Floan for poor performance in October, Jennie-O clearly stated a willingness to work with him to improve his performance so that his employment could continue. Floan, a week later, made an equally clear statement concerning his unwillingness to work with management. It was only after this refusal that Jennie-O decided to terminate his employment. Because the record reasonably supports the commissioner representative's determination that Jennie-O discharged Floan because of Floan's refusal to participate in the improvement plan, this factual finding is affirmed.
The next question is whether Floan's refusal to participate in the improvement plan was misconduct. Employment misconduct is defined as conduct that "must (1) be intentional and (2) disregard standards of behavior the employer has a 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).*fn1 Conduct is intentional if it is deliberate and not accidental. Id. "[T]he word 'disregard' includes intent that is separate and distinct from the intent to engage in the conduct in question." Id. at 150. Therefore, in order to be disqualified for employment misconduct, there must be a sufficient showing in the record that the employee intended to, ...