Opinion
No. C6-97-528.
Filed November 18, 1997.
Appeal from the Department of Economic Security, File No. 7993UC96.
Richard Dilliard, (pro se relator).
Donna L. Roback, Larkin, Hoffman, Daly Lindgren, Ltd., (for respondent Storefront/Youth Action).
Kent E. Todd, (for respondent Commissioner of Economic Security).
Considered and decided by Kalitowski, Presiding Judge, Huspeni, Judge, and Amundson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
UNPUBLISHED OPINION
Relator Richard Dilliard challenges the determination of the Commissioner of Economic Security's representative that he was disqualified from receiving reemployment insurance benefits because he was terminated by Storefront/Youth Action (SYA) for misconduct. We affirm.
DECISION
An employee who is discharged for misconduct is disqualified from receiving reemployment insurance benefits. Minn. Stat. § 268.09, subd. 1(b) (1996). Misconduct is limited to conduct evincing such willful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which an employer has a right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as a result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good faith errors in judgment or discretion are not to be deemed "misconduct."
Tilseth v. Midwest Lumber Co., 295 Minn. 372, 374-75, 204 N.W.2d 644, 646 (1973) (quoting Boynton Cab Co. v. Neubeck, 237 Wis. 249, 259, 296 N.W. 636, 640 (1941)). Whether conduct is bad enough to justify losing both a job and reemployment benefits is primarily a fact-based inquiry. Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 524 (Minn. 1989).
Refusal to follow an employer's reasonable request generally constitutes misconduct. Sandstrom v. Douglas Mach. Corp., 372 N.W.2d 89, 91 (Minn.App. 1985). A court will also consider whether an employee ignored past warnings. Ress , 448 N.W.2d at 524. Further, a hostile or offensive attitude can be considered disqualifying misconduct. See Ideker v. LaCrescent Nursing Ctr., 296 Minn. 240, 241, 207 N.W.2d 713, 714 (1973) (finding misconduct when a nurse's aid, knowing that it could subject her to immediate discharge, twice used extremely hostile language towards a patient); Pitzel v. Packaged Furniture Carpet, 362 N.W.2d 357, 357 (Minn.App. 1985) (finding misconduct when the employee had "erratic and disruptive" behavior and remained "aggressive and offensive with customers" after several warnings).
Relator made his first unsolicited contact with the Hennepin County contract manager by facsimile. In that fax, relator stated that he had filed complaints with the Department of Human Rights and the Equal Employment Opportunity Commission, and had filed a lawsuit. He then alleged: "You really need to know what has happened to me. Unbelievable racism!" When SYA became aware of this facsimile, it issued a written warning to relator stating that it understood and supported his right to assert a charge of discrimination against SYA, but that he had no right to undermine the agency and to place his own self-interest ahead of the employer. It went on to state that corresponding with the county contract manager was not in the regular course of relator's job and that it was seen as a deliberate attempt to discredit the agency and sabotage its funding. The warning indicated that it would be placed in relator's personnel file.
After receiving the warning, relator contacted the county contract manager again, this time by phone, leaving two messages on her voice mail. The commissioner's representative found that these calls were made in a "very excited, angry tone, and the calls made [the county contract manager] very uncomfortable, and she was concerned for her safety." Relator stated in his message that he thought he would be fired because SYA knew he had contacted her. The county contract manager claimed that relator repeatedly said the manager was going to make him lose his job.
After an investigation into the voice mail messages, SYA sent a letter of termination to relator stating, among other things, that the incidents of inappropriate behavior towards an employee of Hennepin County, which was the employer's referral and funding source, showed a deliberate disregard for the employer's interests and exhibited poor judgment.
We conclude that, because relator deliberately chose to contact the county contract manager after being warned that it was inappropriate, he violated a direct request in willful disregard of his employer's interests. The fact that the commissioner's representative found the phone calls were made in a hostile and intimidating manner further supports our conclusion that relator's actions constitute misconduct.
Contrary to relator's argument, we conclude that relator is not a whistleblower and his contacts with the county contract manager do not constitute reports under the Minnesota Whistleblower Statute, Minn. Stat. § 181.932, subd. 1(a) (1996), because: (1) relator was not reporting anything that had not already been reported to another forum; (2) the county contract manager could not help him with his complaints; (3) relator complained of individual discrimination, which was an internal matter, not a violation that would affect the public, see Williams v. St. Paul Ramsey Med. Ctr., 551 N.W.2d 483, 484 n. 1 (Minn. 1996) (noting that "[t]he popular title of the [Whistleblower] Act connotes an action by a neutral — one who is not personally and uniquely affronted by the employer's unlawful conduct but rather one who `blows the whistle' for the protection of the general public or, at the least, some third person or persons in addition to the whistleblower.")
The commissioner's representative properly found relator's discharge was not in retaliation for his complaints to the Department of Human Rights and Equal Employment Opportunity Commission, but instead was based on the inappropriate tone and nature of the phone calls to the county contract manager. Although the commissioner's representative erroneously found that relator made the phone calls while he was on administrative leave, we conclude that this error is not significant. Further, we conclude that the remaining findings of the commissioner's representative are reasonably supported by the record. These findings must "be viewed in the light most favorable to the decision, and if there is evidence reasonably tending to sustain them, they will not be disturbed." White v. Metropolitan Med. Ctr., 332 N.W.2d 25, 26 (Minn. 1983). Therefore, we affirm the determination of the commissioner's representative that relator was terminated for misconduct.