*1 1986) (driver heavy was a smoker who was

upset, crying). All nervous and of these McGOWAN, Relator, Linda L. types same of difficulties seem to have appellant. troubled EXECUTIVE EXPRESS TRANSPORTA majority appears rely on the fact ENTERPRISES, INC., TION Commis appellant voluntarily that submitted to a Training, Respon subsequent blood test and its result as dents. proof physical inability provide adequate sample. breath That is not the No. C0-87-572. standard which to determine there Appeals Court of of Minnesota. Lewandowski,

was a refusal. we held “appellant’s willingness that to take anoth- Sept. 8, 1987. compel er test does not trial court’s determination clearly erro- (emphasis

neous.” supplied). Id. majority distinguish does not

between the criminal offense of DWI and implied consent which is civil

nature. Determinations of under issues totally separate

the two are and distinct

and have different criteria and standards. Hanson,

See State v.

(Minn.1984)(“As we have made in a clear

number cases the revocation of a driv- implied

er’s license under the consent penalty imposed

is a civil administratively

regardless any of the outcome of criminal

proceeding arising under section 169.121 from the same incident. the fact [appellant]

that acquitted of the crimi- charge nal does not prior render the

implied consent revocation based on the invalid.”) Here, incident majority

same applying the DWI criminal criteria to the proceeding implied

civil consent.

As to the admissibility of the results of test,

the blood I believe the evidence would

be relevant if this were a criminal case.

Here, however, we are not asked to decide

appellant’s guilt innocence, merely

whether the trial court erred in determin-

ing appellant failed to meet bur- proving

den of physically she was provide adequate

unable breath sam-

ple.

I would affirm.

594 Persellin, Cloud, 30, 1986,

Michael J. July St. for Linda Rooney Paul left requesting go L. McGowan. McGowan a note her to to a St. Cloud clinic her van Kundrat, Jr., Hall, Byers, Frank J. Han- pick up prescription. pre- hours to The son, Weinberger, P.A., Cloud, Steil & St. himself, scription Rooney for Paul was and Express Transportation En- shipment by was not intended for Execu- terprises, Inc. Express. pick up McGowan did not III, Gen., Humphrey, Atty. Hubert H. prescription day the because she did Notvik, Sp. Gen., Atty. Donald E. Asst. St. not have time and did not believe the re- Paul, for Commissioner of Jobs and Train- quest appropriate. was ing. When McGowan arrived at work the next day, she Rooney found another note from Heard, by considered and decided asking in her prescrip- mailbox where the POPOVICH, C.J., and FOLEY and responded tion was. She in a note of her HUSPENI, JJ. own, stating that she had not had time to prescription previous the day, the OPINION part and did not the believe errand was job. argument ensued, her An McGowan HUSPENI, Judge. prescription, refused to and she Relator Linda a former van discharged. was respondent for the company, seeks applied unemployment McGowan of a review determination the Commis- compensation, hearing and a was held to Training that she en- determine her entitlement to benefits. At gaged in by refusing hearing, McGowan testified that Roo- president of the com- ney’s prescription was at a clinic on the pany. We affirm. Cloud, north side of St. whereas her route July

on 30 had covered east and west FACTS admitted, however, side of St. Cloud. She days that on some her route would have respondent Express Executive covered the north side. She also admitted Transportation Enterprises, Inc. is a deliv- paid regular that she would have been ery ships freight service which between St. wage, pickup on have been Minneapolis-St. airport. Cloud and the Paul time, company and that it would taken Rooney is owned Paul and her 15 Finally, minutes. she indi- wife, Jill, compa- who both work at the cated that when she refused the ny Rooney offices. Paul is the she did not intend willfully disregard the company, Rooney and Jill is the di- goals of the company, but believed she was programs operations. rector and simply turning personal request by down a Relator employed Linda McGowan was Rooney. Express freight as a coordina- Rooney Paul testified that he believed tor and van approximately driver for one McGowan would have furthered year, until she July on by picking up business be- responsibilities 1986. Her picking included cause it would stay have allowed him “to up freight from customers in the St. Cloud managerial things.” desk and do [his] area, transporting freight in her He also testified that was Express’s van to Executive offices in St. thought already since McGowan was Cloud, freight from shipped where the truck, get pre- she as well Minneapolis-St. to the airport. Paul Her scription when she had a chance. employment agreement stated that her duties would include those “incidental Rooney’s request The referee found that implied” position, “reasonably del- was reasonable under the egated being in the best interests of the and concluded that McGowan’s refusal Company.” “manifested a willful her em- interests, Co., a willful dis- Tilseth v. Midwest Lumber ployer’s 295 Minn. and. 372, 374-75, (1973). the standards of behavior which regard of expect of has a its 268.09, 1(2) (1984) subd. therefore employees.” The referee deter- states: discharged for mined that McGowan was An separated individual employ- from not entitled to receive misconduct and was (2) ment under clause shall be dis- *3 unemployment compensation benefits. qualified waiting week credit and benefits. representa- appeal, a Commissioner’s ri from McGowan has conclusions, stating: ties. work constituted an intentional and substantial son. disregard of her duties and The Referee found that affirmed the referee’s reasonable and The refusal Commissioner’s decision. appealed job duties as a to within writ of certiora- findings delivery per- responsibili- the frame- duty be “connected with his work” or “inter the behavior and determination of statute (Emphasis supplied.) misconduct (2) The and adversely or for misconduct which ^[*] requires individual was Tilseth ^[*] further that such behavior culpability required affects sfc misconduct, definition connected ^[*] his interferes employment. ' thus defines ^[*] with while the work for a ^[*] with (cid:127) adversely feres with and affects his em ISSUE ployment.” Generally, comply refusal Did McGowan’s refusal to employer’s an with reasonable employer’s constitute miscon- constitute misconduct. Sandstrom v. disqualifying receipt duct her from the of 89, Douglas Corp., Machine 372 N.W.2d unemployment compensation benefits? (Minn.Ct.App.1985). 90-91 This court’s review of the Commission- findings determining er’s is limited to ANALYSIS there is evidence in the record whether unemployment compen- “Misconduct” for which tends to. sustain those purposes has sation been defined as fol- findings. Metropolitan White v. Medical lows: 25, Center, (Minn.1983). 332 N.W.2d meaning intended of the term “mis- [T]he The Commissioner’s conclusions of conduct” is limited to conduct however, binding they are not are not evincing disregard such wilful or wanton findings. reasonably supported by the employer’s of an interests as is found in Zepp Chips, v. Arthur Treacher Fish & disregard deliberate violations or stan- (Minn.1978). Inc., 272 N.W.2d dards of behavior which the has the to expect employee, present of his In the we conclude negligence findings or in carelessness or of such that the Commissioner’s are rea degree sonably supported by or recurrence as the record and to manifest rea equal culpability, wrongful sonably support intent or evil the Commissioner’s conclu design, or to show intentional and sion that McGowan’s actions constituted employer’s substantial with her work. We connected employee’s interests or of the duties and first note that McGowan’s obligations employer. agreement put to his notice that her duties On the oth- her on inefficiency, unsatisfactory er hand mere “incidental or im: were to include those conduct, (i.e., good performance failure in plied” position “connected work). inability incapacity, the result of or hired as a inad- with” her McGowan was ordinary negligence requested by delivery person vertencies in iso- and was instances, good-faith lated errors

judgment or discretion are it to him. These not to be deemed support “misconduct.” facts terminated, whether, within the framework now that she is the errand was unemployed, and was incidental or she should be denied unem- McGowan’s duties ployment compensation benefits as well.” as a van driver. implied from Outlet, Windsperger Broadway Liquor North, Holiday Inn The case of Enz v. (Minn.1984). (Minn.Ct.App.1986) cited 388 N.W.2d 756 Enz, distinguishable. by McGowan is Here, although president’s request manager was asked to assistant kitchen may appear unreasonable under the employee training ses- portion of an lead a requested delivery sion, found such and this court work, not “connected McGowan’s with” scope of his “completely outside the consequently her refusal was mis- Id., at 758. on the usual duties.” conduct “connected with her work” as re- hand, McGowan was other quired by section 268.09. package in requested and was employed by *4 completely her van. Such packages Express to and deliver scope of her usual duties. outside the Express. Running person- a addition, In errand, pick- al even that errand involved was reasonable president’s scope ing up package, was not within the supported by under the circumstances is assignment. Nor can of McGowan’s work was a van the record. McGowan agree majority’s I with the picking up packages whose duties involved personal errand was “incidental or im- this city over the of St. Cloud. all position as a plied” from McGowan’s supervisor and president her immediate company. pick up package in St. of the Thus, Express may while hours was unrea- Cloud discharge good reason to I had sonable, particularly since the perform her refusal to a task do not believe and wished to testified that scope of her estab- outside remain in the office that while culpability necessary disquali- lished the already on the road. we As fy receiving unemployment her from com7 Sandstrom, in ‘rea- stated [a] “[w]hat my judgment, it pensation benefits. vary [request employer] sonable’ presi- demeaning to the driver for the according to the circumstances of each expect this driver dent of Sandstrom, 372 at 91. case.” president’s personal errands. to run the hired to driver was DECISION directly to the eco- packages that related McGowan’s refusal a task Picking well-being company. nomic duties, delegat- to her incidental drugs highly personal up prescription is a in employer, ed the best inter- delegated. ought not to be matter which employer, miscon- ests constituted practice 50 What have been the duct. years ago is not true nor should it Affirmed. be. con- I reverse the Commissioner’s

FOLEY, J., dissents. constituted clusion that McGowan’srefusal FOLEY, Judge (dissenting). misconduct. respectfully I dissent and would hold did not rise to

that McGowan’s behavior contemplated by

the level misconduct 268.09 and Tilseth. stated, supreme

As court an em- has

ployer may justified discharging employee, yet, the “issue is not employee] should have been

whether [the