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Bray v. Dogs & Cats Limited

May 11, 2004

TARA L. BRAY, RELATOR,
v.
DOGS & CATS LIMITED (1997), RESPONDENT, COMMISSIONER OF EMPLOYMENT AND ECONOMIC DEVELOPMENT, RESPONDENT.



Department of Employment and Economic Development No. 7865 03.

Considered and decided by Harten, Presiding Judge, Randall, Judge, and Klaphake, Judge.

SYLLABUS BY THE COURT

Mere unsatisfactory performance does not constitute employment misconduct. In unemployment compensation cases, this court will apply the statutory definition of employment misconduct in effect at the time the employee is discharged.

The opinion of the court was delivered by: Randall, Judge

Reversed

OPINION

Relator Tara Bray challenges the decision of the commissioner's representative that she was discharged for employment misconduct, disqualifying her from receiving unemployment benefits. Because the record shows that relator's actions fell under the "simple unsatisfactory conduct" exception to the definition of employment misconduct, we reverse.

FACTS

Relator Tara Bray began work at Dogs and Cats Limited (DCL) as a sales associate in the Mall of America store in 2000. In January 2002, relator was promoted to the position of store manager. At first, relator did well in her new position. But gradually, her performance deteriorated, she did not meet expectations, and intervention by higher management was required.

At times, relator turned in required paperwork late, failed to correct overstaffing problems, and failed to perform other managerial tasks to the employer's satisfaction. Although she had previously been urged to correct some of these problems, relator did not, and on January 2, 2003, one of DCL's regional managers, Brooke Buysse, issued a "corrective counseling" to relator, stressing the importance of completing all tasks in a timely and professional manner, and arranging some additional training for relator with another store manager.

Even after the corrective counseling, however, relator's performance was sporadic, and on March 31, 2003, Buysse approached relator to inform her that her employment would be terminated. Buysse said that she "didn't think that this was a good fit" and that it seemed "that [relator] wasn't meeting the expectations... [j]ust basic policies and procedures and basic expectations they just weren't being met." After the termination, relator applied for unemployment benefits, and received them. DCL appealed, and the matter was heard before an unemployment law judge. Buysse argued that relator was consistently late in performing a number of her duties, despite being warned about timeliness. He said relator often overstaffed her store, violating the company's payroll limits, even after being warned about overstaffing. Finally, Buysse said that relator violated a direct order from Buysse to issue a written warning to an employee who was seen in or around the DCL store before his shift was to begin.

Relator testified that she tried to perform her duties to the best of her ability, but sometimes did not understand what was required of her or was not aware that her actions would not satisfy the employer's standards. Relator said she refused to issue a written warning to the early-arriving employee because the man was African-American, and she felt that Buysse's request to discipline him might have had racial motivations. Relator went so far as to contact an attorney about the issue, and did orally direct the employee to stay away from the store until no more than 10 minutes before his shift. Relator thought this was enough to handle the problem.

The unemployment law judge found that relator's conduct constituted an intentional disregard of the employer's expectations, and disqualified her from receiving unemployment benefits. The commissioner's representative affirmed ...


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