Windsperger v. Broadway Liquor Outlet

findings supported of fact in Given the adjudication,

the administrative where is- credibility of witnesses are re-

sues

solved, accept I cannot the notion that de- deception directly affecting

liberate so

obligations employment does not consti- statutory misconduct. I would affirm

tute

the determination of Commissioner of

Employment Security.

KELLEY, (dissenting). Justice join

I in the dissent of Justice Peterson.

COYNE, (dissenting). Justice join the dissent Justice Peterson. WINDSPERGER, Relator,

Linda LIQUOR OUTLET,

BROADWAY

Respondent,

Commissioner of Economic

Security, Respondent.

No. C4-82-1687. Pry, Minneapolis, Lawrence W. for rela- of Minnesota. tor.

March Nelson, Gen., Sp. Atty. Thomas R. Asst. Paul, respondents.

St. SCOTT, Justice.

This matter is before the court for re- view on a writ of certiorari to the Commis- Security. sioner of Economic The issue is relator, Windsperger, whether the Linda disqualified should unemployment be ground on the benefits discharge was for “misconduct” within § 268.09, meaning of Minn.Stat. subd. 1(2) (1982). Commissioner, reversing 143 Tribunal, Windsper- testified that Appeal disqualified upset She also she was be- ger receiving manager benefits. We reverse. cause her had been ignoring from her doing job and other workers the same were Respondent Broadway Liquor Outlet em- paid than she. more Windsperger Linda as a cashier ployed 1980, 28, 30, May 1982. August until manager Windsperger The testified that arguing discharged while about She was once, before, year over a had thrown a manager. argu- The scheduling with her temper three-minute tantrum when told she scheduling request ini- ment concerned a getting would not a raise. be This old writing tially by Windsperger made in on tantrum was not the basis for her dismiss- 1982, 27, permission to work May leave al. p.m. Saturday early hours at 1:00 on two that, although The Tribunal held 29, hoped work May 1982. She to leave Windsperger poor judgment, had exhibited family leave early day that so her could the confrontation was an isolated incident Day early town for the Memorial weekend. amounting statutory not misconduct. manager request denied the so Her reversed, noting The Commissioner that indicating of the note when he on back compelling early she no reason to leave had May following day, on the arrived at work persistence and her in indicated a 28, attempts, After several Wind- 1982. employment. lack of concern about her He sperger was able to discuss the matter with that her action determined constituted mis- evening 8:00 manager her that at about conduct under Tilseth v. Midwest Lumber change his decision p.m. He refused to 372, Co., (1973), 295 Minn. 204 N.W.2d 644 expected Saturday very he be because College, and Feia v. State Cloud State busy say leave a day. He did she could 564, (1976). Minn. 244 N.W.2d 635 early skipped if her lunch half-hour she in determining erred Commissioner break. Windsperger’s conduct constituted Windsper- In the course of the discussion disqualifying her from unem- misconduct ger permission asked for to leave work ployment compensation benefits under the early following Friday. manager has the statute. burden that, request although testified such a guilty proving of misconduct. granted, pos- it normally would be was not Airlines, Inc., Lumpkin v. North Central sible to do so for that weekend and that 456, 459-60, 397, 209 400 296 Minn. N.W.2d became, it, put “very Windsperger as he (1973). disqualification provisions upset temper and threw a tantrum.” narrowly 268.09 are to be con- section Windsperger manager Three times the told Independent strued. Mortel v. School her, warning he was but each time she 408, 831, 334 N.W.2d District No. angrier After became and louder. (Minn.1983). not The issue in this case is spot third time she was fired on Windsperger have ter- whether should been temper “insubordination and tantrum.” minated, whether, now that she is un- but any vulgarity or Windsperger did not use employed, unemploy- she should be denied incident, profanity during the which oc- ment benefits as well. manager’s in office in the back curred Tilseth, adopted store In we the construction of the store. No customers Nothing heard of the confrontation. of “misconduct” enunciated Wiscon- Boynton the record indicates that other sin Cab Co. argument. epi- Neubeck, The entire could hear the 296 N.W. Wis. (1941): to 20 minutes. sode took 15 meaning of the term intended upset Windsperger that she was “[T]he testified * * * is limited to conduct ‘misconduct’ employer many

because she had done record, evincing such wilful or wanton favors, and she good had a work is found in interests as enough employees scheduled felt that were disregard of stan her. violations or May on 28 to handle the work without deliberate protect stability of behavior which the dards state of the family. expect employee, has the of his negligence or carelessness of such 134 So.2d at 389. degree or recurrence as to manifest Toilets, Avery B B v. & Rental wrongful equal culpability, intent or evil unhappy Idaho 549 P.2d 270 upon toilet cleaner “blew his stack” dis- design, or to show an intentional and covering a particularly dirty number of disregard of the substantial units. The court found no misconduct: employee’s interests or of the duties and Misconduct, disqualify which will a obligations employer. to his On the oth receiving claimant employment from ben- inefficiency, unsatisfactory er hand mere Employment Security efits under the conduct, good performance failure in as Act, includes a of standards of inability incapacity, or inad- the result of behavior the employer right which has a ordinary negligence vertencies or in iso expect employee. to of his While an instances, good-faith lated or errors employer right expect has a to that his judgment or discretion are not to be employees engage protracted will not * n deemed ‘misconduct’ argument after an order or directive is 295.Minn, given employee, yet to an he cannot ex- 374-75, at 204 N.W.2d at 646. pect that his will at all times jurisdictions have held Courts other absolutely be docile or servile. temper single that an isolated tantrum or hotheaded of the sort here in- incident * * * The law does not set such a justi- volved does not amount to misconduct single standard. A incident compara- fying unemployment compen- the denial of tively disrespect by complain- nonserious Brown, In sation benefits. Johnson v. 134 ing and is not misconduct. 76 (La.App.1961), employee 389 an So.2d Am.Jur.2d, Unemployment Compensa- discharged making derogatory for was re- § § tion, (1975); 52 and 55 and annota- company supervisor to a marks about the “Employee’s tion entitled Insubordina- had when he discovered he been docked Barring Unemployment tion Compen- as pay reporting day for not for work on a sation,” (1969). 26 A.L.R.3d 1333 company previously agreed which the had In this are not case we concerned with part to consider as of his annual vacation. to terminate an solely employment, court said: but with the issue of whether the termination was for “mis- may at state We the outset that a purview conduct” within the of I.C. single cannot hotheaded incident be con- § 72-1366(e). Under facts of this type premeditated and se- sidered employee’s we hold that the con- riously improper conduct which consti- precipitated duct discharge which his did tutes, statute, meaning within not as a matter of law constitute miscon- deny to un- serious cause sufficient appellant ineligible duct so as to render employment compensation benefits to an unemployment compensation bene- has, employee. course, An fits. legal right discharge employee an 614-15, 97 Idaho at 549 P.2d at 273-74. cause; without cause or for but such Nelson, In Cal.Rptr. Silva v. 106 31 employee ordinarily upon application Cal.App.3d supervisor a con- unemployment compensation entitled to employee fronted an about an unauthorized employ- benefits when his terminated employee absence 'made when the felt he ment is covered the Louisiana Unem- going up.” Upon being was to “blow

ployment Compensation Law. LSA-R.S. employee asked about his absence the said seq. 23:1471 et Those benefits are not shit,” “give may he didn’t and have added paid primarily employee to reward the or court, you your job.” “about which punish employer, exactly but rather to defined “misconduct” in the same used, PETERSON, (dissenting). terms we have found that the out- Justice burst was “a mere mistake or error today Two cases decided involve dis- judgment peccadillo’ ‘minor is not —a —and charge employee insubordination an disqualifying appellant misconduct from and have the same result: Windsperger v. unemployment insurance benefits.” Outlet, Broadway Liquor p. ante and Cal.Rptr. Cal.App.3d at Queen, Dairy Hamilton v. International Beaird-Poulan, Brady, Inc. v. (Minn.1984). 346 N.W.2d 138 Both involve (La.App.1963), employee, So.2d 589 hot employee’s angry outburst directed to- work, long night’s after and tired supervisor. ward a Both involve a determi- discharged supervi- when he refused Employ- nation the Commissioner of pick up sor’s order to a mold knocked down Security ment that the was to be by a co-worker. The court found the refus- temporarily disqualified unemploy- single al “a hotheaded incident” which did statutory ment because of statutory not amount misconduct. misconduct. Both result in this court’s re- versal of the commissioner’s determina- bar, Windsper- In the case at Linda by opinion; tion—the first extended the into, ger’s erupted man frustration as her simply by second reference to the first. it, ager “temper a tantrum.” described The basis for the decisions is that an “iso- This is the sort of isolated “hotheaded inci lated hotheaded incident” does not inter- dent” where an “blows her employer’s By fere with the business. this stack” which the courts do not consider single opinion, I express my dissent in both justifying unemploy denial misconduct of decisions of the court. ment benefits. While we cannot condone Windsperger’s irrational outburst at her Windsperger manager, her tantrum does not evince such facts, succinctly The as stated the employer’s a willful for her inter appeals tribunal and affirmed the com- justify denying unemploy ests as to her missioner, are these: unemployed. ment benefits now that she is (2) 28, morning May On the of 1982 the Feia, The Commissioner’sreliance on 309 employer claimant left a anote for her to 564, 635, 244 misplaced. Minn. N.W.2d is early the effect that she wanted to leave There, a custodian offended the use of following day (Saturday, May on the expressed disapproval nude models her to 1982). The claimant was scheduled to everyone discharged and was for continu- Saturday work that until 3:00 PM. ing disruptive being activities after (3) employer the The answered claimant stop. distinguishable warned to Feia is by writing on the of her note to backside because her activities “interfered with her the effect that she could leave at 2:30 job disrupted program.” duties and the art PM but not at 1:00 PM. This was the Minn, 565, 244 309 N.W.2d at 636. In Day employer Memorial weekend and the showing this case there was no that Wind- anticipated busy day Saturday. on sperger’s disrupted isolated outburst (4) Throughout day May on adversely employer’s store or affected her attempted the claimant to talk with her business. employer leaving early. about her Accordingly, we hold that an isolat day, 8:00 PM that the claimant About ed hotheaded incident which does not inter employer and the discussed the matter. fere is not with business conversation, In the course of the § 268.09, misconduct under Minn.Stat. quite vio- claimant became loud and 1(2),justifying unemploy a denial of subd. lently upset when not allowed to leave ment benefits. argu- continued her early. Claimant ing employer

Reversed and remanded with instructions at which time the indicated opinion enough Tri- and to reinstate the of the to the claimant that he had warning her. bunal. majority opinion acknowledges, “Wind- stop three the claimant

warned claimant, once, before, times, finally sperger year told the had over a and place This all took with- temper “You’re fired.” thrown a three-minute tantrum twenty minutes. period in a of fifteen to getting she not be when told would during in the store Co., There were customers Auger raise.” In v. Gillette were un- these customers this time but noted, although we N.W.2d commotion, any of aware misconduct, that episode in a different of warning given employees would have “a (emphasis supplied). proof.” strengthened employer’s this appeals tribunal concluded: appeals findings as the of the tribunal of the evidence upon a review Based clear, make warned the “[t]he record, testimony the tribunal con- and of stop claimant to three times.” claimant, while her dis- cludes that fully justified charge was majority’s elements in the statement Two employer, is not point First, view disturbing. the rule law are of within the guilty of willful misconduct say seems insubordina- § 268.09, meaning of subd. 1] permissible only [Minn.Stat. if it once. I tion is occurs Co., 295 and v. Midwest Lumber [Tilseth accept cannot the notion that act of (1973) Minn. 204 N.W.2d ]. insubordination, in- however deliberate and excusable, permissible happens only if it (emphasis supplied). Second, majority would hold that once. commissioner, reversing the decision disqualifying insubordination is not miscon- tribunal, concluded in these appeals duct if other or customers do words: effect of in- not observe it. The adverse present the claimant was In the by subordination is not that it is observed clearly that she would not be advised but, rather, insubordination, that in others what the given the two hours off on behavior, disregard proper of standards of days of the employer termed one busiest coopera- efficient and interferes with the liquor employer The in a retail store. employee tive conduct of business. The the claimant to leave one- had allowed attempting here was to work her will out half hour. The claimant had not set against employer regard her for without any compel- hearing at the or on review the in which necessities business she early departure. Her ling reason for her employed. was point persistence in the after by em- being warned three times the Co., v. Midwest Lumber Tilseth ployer clearly to discontinue indicates 644, adopted Minn. 204 N.W.2d we the employment. her a lack concern of for construction of “misconduct” as formulat- representative does not concur with This by in ed the Wisconsin merely that this was the Tribunal Neubeck, Boynton 237 Wis. Cab Co. single poor judgment, of a instance (1941). Boynton 296 N.W. 636 supplied). (emphasis employee case involved an who had 3 minor during traffic accidents months of em- not hold that majority opinion does them, report ployment but failed to one employee the action of the was not miscon- injury personal involving a minor accident one incident should not duct but holds that actually It he was not aware. of which statutory misconduct. “While constitute that the Wisconsin in that context was Windsperger’s irration- we cannot condone “mere exception that articulated the court manager,” al outburst at her conduct, unsatisfactory failure inefficiency, that acknowledges, it nonetheless holds the result of inabil- good performance in as “her tantrum does not evince such a willful ordinary or ity incapacity, or inadvertencies disregard employer’s interests as to her instances, good in negligence isolated denying unemployment bene- justify are fact, judgment faith errors in or discretion it was not fits.” As a matter of ” because, 237 Wis. incident as not to be deemed ‘misconduct.’ entirely an isolated 296 N.W. at 640. But for that Hamilton exception, general Boynton rule of findings appeals of fact made that “misconduct” is “such wilful or wan- of the Department Employment tribunal of ton interests as Security and confirmed the commission- is found in violations or deliberate disre- are er these: gard behavior standards which the of of (2) The claimant of construction [director expect has of employer, Dairy International negligence employee, or in carelessness or Queen, good did a working not have Inc.] degree of such as to or recurrence manifest relationship supervisor, with his the Vice- equal wrongful culpability, intent or evil President for facilities. design, or to show an intentional and sub- (3) The recently claimant has had heart stantial disregard employer’s inter- of surgery and had on been a leave of ab- ests or employee’s duties and obli- of sence period time, for an extended of gations (emphasis to his Id. employer.” returning February of 1982. The supplied.) claimant also has had other serious medi- Wisconsin, A in Lathrop lower court of problems. cal always has Products, Inc., v. DILHR & Presto No. accommodated the claimant work (Wis.Cir.Ct., Cty., 163-489 Dane March restrictions that he had due to his medi- 1979), Boynton reads the formulation cal condition. differently from this decisions court’s to (4) August 13, On claimant’s There, day. during meeting a to discuss supervisor giving personnel him a work, reports unsatisfactory some possibility evaluation. The of the claim- and, angry vulgarity, became ant having to work a twelve fourteen supervisor told his he where could “stick hour day sometime in the future was expressed opinion it.” The court there discussed. The claimant mentioned that “merely one act of insubordination to might he not be able handle such supervisor the nature that commit * n * hours with his condition. The claimant ted the employee may properly be salary wanted to discuss the increase he found to constitute misconduct.” view expect could The supervisor to receive. the circumstances of the case here as a told him he could it with not discuss him. attempt deliberate and by insubordinate company policy give not is to the employee the to work will notwith employee figure specific the until it is standing a employ reasonable order of the approved management. by higher place er. employment, large No of vice-president something to said the ef- small, operate can effectively for the bene fect, “I I anything can do want with fit of employees the and other you.” The claimant became incensed employee where an for 15 or 20 minutes you and you, said “F..k son aof evinces defiance or a disaffected attitude b...h.” toward the manage reasonable exercise of (emphasis supplied.) rial authority. The commissioner concluded:

I am not unaware decisions in other may support pro- states that be read to that he was claimant contends the by place. result reached the of this voked into the which took outburst might per- supports court. We Those decisions be more do not find that the record suasive, however, vice-president it not for the this the were distin- contention. While guishing clearly telling fact that insubordinate con- of facilities callous in was in in anything duct this the face do case was of re- claimant that he could he observe, claimant, peated warnings too, to desist. wanted with the the evidence that similar are by authorities not followed demonstrates that the claimant was suf- companion ficiently any the court in case of Hamil- aware that actions under- Queen. Dairy vice-president ton v. taken of facilities International Foods, Inc. and Brostven v. Beatrice manage- by upper reviewed would be DILHR, (Wis.Cir.Ct, certainly aware No. 80-CVD-867 was The claimant ment. 26, 1980), involved the dis- appeal Cty., action Nov. to Rock that he had avenues supervisor. objected charge employee his who to and against him taken swearing response in at The claimant’s assignment in the argued about a work and supervisor was uncalled receiving the directive of his su- course of to The record does seem unexecuseable. lan- employee used abusive pervisor. has a tem- that the claimant demonstrate gesture, and guage, made an obscene argued by the claimant it is per and early. The court out 2 minutes signed to should not amount such outburst required that no should be stated not base our deci- will misconduct. We or insolence and such abuse to tolerate whether an question upon sion of complete cooperation the need for noted not, temper or such has a individual organiza- respect authority for an and tem- who have a individuals that those other cases properly. function For tion to who do excused and those per could be for use of finding insubordinate misconduct not, be. We fail to see how could not Olsgard language, see vulgarity or abusive and operate a business employer could Commission, 190 Colo. v. Industrial super- to swear at their allow (1976); Acord v. Labor and 548 P.2d 910 was not employment visors. This Commission, Industrial Relations setting there is no evidence factory and Ross, Choute (Mo.App.1980); S.W.2d language that such to demonstrate (1977); 400 N.Y.S.2d 60 A.D.2d an in- While commonplace. any way Compensation Unemployment Henry v. angry become and may well dividual Review, 57 Pa.Cmwlth. Board of upon an frustrated, it is incumbent (1981) (“[the] choice of terminolo- A.2d 1210 remain civil and conduct employee to itself, finding that supports gy, [the claim- demonstrated type of ant Insubordi- was insubordinate. employee] certainly wilful miscon- vulgarity constitutes nate em- the behavior which an standards of duct.”). expect. We there- ployer has a this involved The conduct of Tribunal fore concur with language and an atti- unacceptable patently dis- held that the claimant was when it any level of totally place out of tude amounting to mis- charged for reasons high excluding levels employment, not Employ- the Minnesota conduct under language was Whether the management. Law. ment Services single it was a by others or whether heard supplied). (emphasis unacceptable. Re- makes it no less episode the commissioner undermines versal of persuasive effect give If we are unemployment com- policy using state we should jurisdictions, other decisions of em- for the benefit of pensation reserves holding that those decisions consider through no fault of ployees unemployed super- profanity toward vulgarity or use of I affirm. their own. would One, infer- statutory misconduct. visors is Toilets, B B Rental entially, Avery v. & cited P.2d 270 Idaho SIMONETT, (dissenting). Justice opinion Windsperger. in its Peterson’s dissent Wind- join I Justice that Avery court concluded Although Hamilton companion sperger. In the unhappy an when was no misconduct there isolated, hotheaded, I think we have upon stack” discov- toilet cleaner “blew incident, I and so disruptive non-business units, dirty particularly ering a number of majority. that join evi- “[tjhere was no the court noted vulgar or employee] used

dence that [the KELLEY, (dissenting). Justice during the conversation.” language abusive Peterson. join at 274. I the dissent of Justice 549 P.2d Idaho at

lAQ COYNE, (dissenting). Justice Peterson. join in the dissent of Justice TERRELL, Respondent,

James FARM

STATE INSURANCE

CO., Appellant.

No. C8-83-374. of Minnesota.

March Quinlivan, Carpenter, D. Kevin S.

John Cloud, appellant. St. Holmen, Cloud, respon-

Robert W. St. dent. Duerr, Lawyers Minn. Trial

Stephen R. Assoc., Minneapolis, amicus curiae. KELLEY, Justice. court held that an insured’s

The trial within the give failure to notice of accident period prescribed by the insurance time conformity Minn.Stat. policy issued in with § (1982) 65B.55, is not absolute subd. economic loss benefit bar to no-fault basic policy under the unless the claims made prejudice as a insurer has suffered actual delayed notice. Because we result of the such fail- legislature intended conclude timely notice constitute give ure to would bar, we reverse. an absolute stipulated by the The facts have been Appellant Farm Insurance parties. State insurance its no-fault automobile Co. issued respondent Terrell. The policy to James coverage medical ex- policy provided

Case Details

Case Name: Windsperger v. Broadway Liquor Outlet

Court Name: Supreme Court of Minnesota

Date Published: Mar 30, 1984

Citation: 346 N.W.2d 142

Docket Number: C4-82-1687

Court Abbreviation: Minn.