Opinion
No. C6-97-1856.
Filed February 17, 1998.
Appeal from the Department of Economic Security, File No. 5433UC97.
Laurie A. Ricco, (pro se Relator)
Cattle Company, c/o The Gibbens Co., Inc., (respondent employer)
Kent E. Todd, Minnesota Department of Economic Security, (for respondent Commissioner of Economic Security)
Considered and decided by Short, Presiding Judge, Amundson, Judge, and Harten, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
UNPUBLISHED OPINION
Laurie A. Ricco, a waitress at Stuart Anderson's Cattle Co., was terminated from employment because she made abusive comments to the company's cooks in front of other kitchen staff. By writ of certiorari, Ricco appeals from the commissioner's determination that she is not entitled to receive reemployment insurance benefits because she was separated from employment due to misconduct. We affirm.
DECISION
The reemployment insurance fund is available only to persons involuntarily "unemployed through no fault of their own." Minn. Stat. § 268.03 (1996); White v. Metropolitan Med. Ctr. , 332 N.W.2d 25, 26 (Minn. 1983). Therefore, an employee discharged for misconduct is disqualified from receiving reemployment insurance benefits. Minn. Stat. § 268.09, subd. 1(b) (1996). The employer has the burden of proving the employee's misconduct. Ress v. Abbott Northwestern Hosp., Inc. , 448 N.W.2d 519, 523 (Minn. 1989). Our review of the commissioner's factual findings is limited to whether the evidence, viewed in the light most favorable to the decision below, supports that decision. Id. However, we review de novo whether those facts constitute misconduct. Id.
Ricco argues her use of profanity was provoked by a co-worker and thus, does not constitute misconduct as a matter of law. See Windsperger v. Broadway Liquor Outlet , 346 N.W.2d 142, 145 (Minn. 1984) (holding conduct that constitutes "isolated hotheaded incident" and does not interfere with employer's business not considered misconduct justifying denial of unemployment benefits). However, the record demonstrates: (1) contrary to company policy, Ricco ordered food for herself only twenty minutes before her scheduled shift started; (2) at that time, the company's cook was busy preparing customers' dinner orders; (3) Ricco failed to complain about the "provocation" to any of the three managers on duty; and (4) on two previous occasions, Ricco was warned that the next violation of policy or procedure would lead to termination. Given these facts, we conclude Ricco's use of profanity exhibits a disregard for the standards of behavior that an employer has a right to expect from its employees, and constitutes "misconduct" under Minn. Stat. § 268.09, subd. 1(b). See Ress , 448 N.W.2d at 524 (concluding when conducting misconduct analysis, courts examine whether employee deliberately violated standards of behavior that employer has right to expect of its employee, whether employee's conduct adversely affected business or other employee's morale, and whether employee ignored past warnings); Tester v. Jefferson Lines , 358 N.W.2d 143, 144-45 (Minn.App. 1984) (holding employee's conduct constituted misconduct not excluded as "hotheaded incident" where employee uttered obscenity at manager and blocked bus from exiting), review denied (Minn. Mar. 13, 1985). Under these circumstances, the commissioner properly disqualified Ricco from receiving reemployment benefits.