Jack Grew, Relator,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-1524

Jack Grew,
Relator,

vs.

Island Investment Inc.,
Respondent,

Department of Employment and Economic Development,
Respondent.

Filed May 18, 2020
Affirmed
Bratvold, Judge

Department of Employment and Economic Development
File No. 37392307-3

Jack Grew, Superior, Wisconsin (pro se relator)

Anne Froelich, Minnesota Department of Employment and Economic Development,
St. Paul, Minnesota (for respondent department)

Island Investment, Inc., Duluth, Minnesota (respondent employer)

Considered and decided by Bratvold, Pr esiding Judge; Reyes, Judge; and Bryan,
Judge.

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U N P U B L I S H E D O P I N I O N
BRATVOLD, Judge
In this certiorari appeal, pro se rela tor challenges an une mployment-law judge
(ULJ)’s determination that relator is ineligible for unemployment benefits because he was
discharged for employment misconduct. Because caselaw and record evidence supports the
ULJ’s determination that relator committed misconduct when he refused to perform an
assigned task, we affirm.
FACTS
The following summarizes the ULJ’s findings of fact. Relator Jack Grew began
working at Island Investment Inc. (Island Inve stment), as a full-time staff accountant on
December 3, 2018. Island Investment manages “several hotels and other properties.” Island
Investment hired Grew to replace an account ant who planned to retire on May 31, 2019.
The retiring accountant supervised Grew.
In March 2019, Grew’s performance review stated he “was catching on quickly”
and “the accounting department would be in good hands.” Grew voiced no concerns at the
time of his review.
On May 10, Grew emailed one of Island Investment’s owners, K.K., and stated he
intended to resign because he was “nowhere near ready to take on the responsibilities.”
Grew added: “If we can’t convince [retiring accountant] to stay working for another year
(maybe less); I regret to in form you that I will be leavi ng your company when [retiring
accountant] retires on May 31.”

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Two days later, K.K. responded to Grew and stated that the retiring accountant could
“stay on a few more months.” K.K. stated, “I hope you will consider at least staying on for
a while.” The same day, Grew told K.K., “I figure I could then stay on board a little longer
too, but cannot guarantee I’d still be there after [retiring accountant] does leave.”
On May 14, the retiring accountant assigned a project to Grew, but Grew refused to
do it. The project was to complete a financia l statement for one of Island Investment’s
companies. Island Investment ended Grew’s em ployment the same day. K.K.’s letter to
Grew stated, “This letter is being given to you to confirm that you have chosen to resign
from your position here at Island Investment, Inc. As stated in your email to [K.K.] on
Friday May 10, 2019, you are not ready for the responsibilities of the job.”
Grew applied for unemployment benefits . Respondent Minnesota Department of
Employment and Economic Development (DEED) denied Grew’s request, reasoning that
Grew had quit. Grew appealed the determination. On July 10, the ULJ conducted an
evidentiary hearing by telephone, but continue d the hearing because Grew may not have
received all the exhibits.
At the continued hearing on August 1, 2019, K.K., an Island Investment human-
resources employee, and Grew , appeared by phone and th e ULJ received testimony and
exhibits, including emails and Grew’s performan ce review. K.K. testified, “I don’t feel
that we fired [Grew]. We just let him leave b ecause he resigned.” K.K. also testified that
Grew’s employment ended because he “indicat ed he was leaving a nd he refused to do
another little project we felt there was no need to keep him on any longer.”

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Grew testified that he “refused to do that project” and explained that “[t]hey were
having their meeting on what they’re gonna do w ith me. So, at that particular time I was
asked to do that project. I, I could not think. I was, I was actually kind of down in the dumps
with the whole situation so that’s why I did not . . . do that project.” Grew also testified
that no medical reason prevented him from performing the project and stated, “[I]f you’re
sitting there about ready [to find out] if you’re gonna get fired or not, I mean . . . how [are]
you supposed to concentrate through that?”
On August 5, 2019, th e ULJ issued written findings of fact and decision,
determining that Grew did not quit but was discharged because of employment
misconduct because he refused “to comply with reasonable instructions.” The ULJ
reasoned that Grew’s testimony that he “was down in the dumps and did not know his job
status” was “illogical” because two days prior, he had agreed by email to remain at Island
Investment for at least a few more months. The ULJ determined that “[t]here is no evidence
that anyone told him, before he refused the work assigned by [retiring accountant], that he
was in fact going to be terminated earlier.” Grew filed a request for reconsideration and the
ULJ affirmed its decision.
This certiorari appeal follows.
D E C I S I O N
This court may affirm, reverse, remand for further proceedings, or modify the ULJ’s
decision if it violates the constitution, exceeds statutory authority or jurisdiction of DEED,
is based on unlawful procedure, is affected by other erro r of law, is unsupported by
substantial evidence, or is arbitrary or capricious. Minn. Stat. § 268.105, subd. 7(d) (2018).

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An individual discharged for employment misconduct is not eligible to receive
unemployment benefits. Minn. Stat. § 268.095, subd. 4(1) (2018). Minnesota Statutes
define employment misconduct:
(a) Employment misconduct means any intentional,
negligent, or indifferent conduct, on the job or off the job, that
displays clearly:
(1) a serious violation of the standards of
behavior the employer has the right to reasonably expect of the
employee; or
(2) a substantial lack of concern for the
employment.

Minn. Stat. § 268.095, subd. 6 (2018).1 Whether an employee committed misconduct is a
mixed question of fact and law. Stagg v. Vintage Place Inc., 796 N.W.2d 312, 315 (Minn.
2011). Appellate courts review a ULJ’s f actual findings that an employee committed a
particular act to ensure “there is evidence in the record that reasonably tends to sustain
them.” Id. Whether a particular act is employment misconduct is a question of law that this
court reviews de novo. Id. This court reviews a ULJ’s findi ngs of fact “in the light most
favorable to the decision” and defers “t o the ULJ when revi ewing credibility and
conflicting evidence.” Lamah v. Doherty Emp’t Grp., Inc. , 737 N.W.2d 595, 598
(Minn. App. 2007).
On appeal, Grew challenges the ULJ’s le gal determination that he engaged in
employment misconduct. Employment miscon duct has two elements. First, Grew’s

1 Minn. Stat. § 268.095, subd. 6, was amende d and became effective October 2019, after
the ULJ’s decision. The amendment removes the second prong of employment misconduct,
“a substantial lack of concern for the employment.” 2019 Minn. Laws 1st Spec. Sess. ch. 7,
art. 7, § 9, at 1371. We apply the law in effect at the time of the ULJ’s decision.

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conduct must have been “intentional, neglig ent, or indifferent.” Minn. Stat. § 268.095,
subd. 6(a). Grew admitted that he refused to work on the assigned project, therefore, his
conduct was intentional. See Houston v. Int’l Data Transfer Corp. , 645 N.W.2d 144, 149
(Minn. 2002) (stating that conduct is intentional if it is “deliberate”).
Second, Grew’s conduct must amount to “a serious violation” of the behavior that
Island Investment reasonably expected.2 Minn. Stat. § 268.095, subd. 6(a)(1). The supreme
court has stated that in this context, “serious” is “synonymous with ‘important.’” Wilson v.
Mortg. Res. Ctr. Inc. , 888 N.W.2d 452, 459 (Minn. 2016) (citing Merriam-Webster’s
Collegiate Dictionary 1066 (10th ed. 2001)). Wilson reversed this court and affirmed a
ULJ’s determination that Wilson committed em ployment misconduct when she filled out
a form by circling “12” as her highest grade completed and writing that she had received a
GED, even though she had only completed the 11th grade. Id. at 454, 461. The supreme
court agreed with the ULJ that Wilson’s misrepresentation about her education level was a
serious violation of the employer’s “right to reasonably expect that applicants will tell the
truth during the employment process.” Id. at 462.
In Vargas v. Northwest Area Foundation, this court considered whether a relator’s
one-time refusal to participate in an improvement plan c onstituted misconduct.
673 N.W.2d 200 (Minn. App. 2004), review denied (Minn. Mar. 30, 2004). We stated that
“[t]he general rule is that if the request of the employer is reasonable and does not impose

2 Alternatively, misconduct occurs when an employee shows a “substantial lack of concern
for the employment.” Minn. Stat. § 268.095, subd. 6(a)(2). Because the ULJ determined
that Grew’s conduct was a “serious violation” of his employer’s reasonable standards, we
do not consider this alternative definition.

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an unreasonable burden on the employee, th e employee’s refusal to abide by the request
constitutes misconduct.” Id. at 206.
The ULJ’s determination follows Wilson and Vargas. Grew’s refusal to perform an
assigned task is a serious violation because completing assigned work is an important and
essential part of an employee performing his or her job duties. Is land Investment could
reasonably expect that Grew would perform a ssigned tasks, and Grew’s refusal to do so
constituted misconduct.
Next, we consider that Grew refused to perform an assigne d project on only one
occasion. A single incident may be sufficient to establish misconduct. When an individual
is discharged for conduct that “involved only a single incident, that is an important fact that
must be considered in deci ding whether the conduct rise s to the level of employment
misconduct.” Minn. Stat. § 268.095, subd. 6(d).
DEED argues that Grew’s one-time refusal qualifies as employment misconduct and
relies on Daniels v. Gnan Trucking, 352 N.W.2d 815 (Minn. App. 1984) and McGowan v.
Exec. Exp. Transp. Enter., Inc., 420 N.W.2d 592 (Minn. 1988).
In Daniels, relator was a semi-truck driver a nd refused to unlo ad goods from his
semi-truck trailer. 352 N.W.2d at 816. Rela tor and the employer had agreed that relator
was “required to assist in unloading,” and th at relator had unloaded trailers on earlier
occasions. Id. Relator argued that “he was merely re quired to assist in unloading and not
to unload alone.” Id. This court affirmed the ULJ’s de termination that relator’s refusal
amounted to employment misconduct because it was “a deliberate act of insubordination
rather than a single ‘hot headed’ incident.” Id.

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In McGowan, relator was a delivery driver and re fused to pick up her supervisor’s
personal prescription. 420 N.W.2d at 593. The employer was a small, family-owned freight
delivery service. Id. Relator stated that picking up the prescription was not within her
job duties. Id. The employer disagreed, and when relator refused to pick up the prescription
after a second request, the employer discharged relator. Id. at 594. The supreme court
affirmed the ULJ’s misconduct determination, st ating that “[o]ne in charge of a business
must be allowed to expect that reasonable orders will be followed.” Id. at 596.
These cases are instructive because, on re view of a ULJ’s decision, both appellate
courts determined that the employee’s refusal to perform one requested task was
employment misconduct. Similarly, Grew’s supervisor asked him to perform a project and
he refused. Grew’s refusal is no di fferent from the rela tors’ conduct in Daniels or
McGowan. “A single incident can constitute mi sconduct when an employee deliberately
chooses a course of conduct that is adverse to the employer.” Schmidgall v. FilmTec Corp.,
644 N.W.2d 801, 806 (Minn. 2002). We concl ude the ULJ’s determination that Grew
committed employment misconduct is supported by caselaw and evidence.
Grew makes three arguments about why his conduct does not constitute misconduct.
First, Grew argues that when he refused the assignment, he knew that K.K. and others were
meeting to “determine his fate,” and that th e ULJ’s factual finding that “no one told him
the company was meeting for this purpose,” is “false.” Grew testified that an employee had
told him about the meeting. Even if the ULJ erred in finding that “no one told” Grew about
the meeting, Grew was not prejudiced beca use the meeting did not excuse Grew’s
misconduct.

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Second, Grew argues that the ULJ erred when he stated, “[Even] assuming [Grew]
had some reason to believe” that the company was meeting to discuss his termination, “that
should not have prevented him from working until he knew the outcome.” Grew argues
that this amounts to a “false” finding because he continued to work on other projects after
rejecting the new assignment. But Grew never testified that he completed other work after
rejecting the project. The record evidence establishes the work that Grew failed to perform
on May 14, but not any work that he actually performed on the same day. Thus, the ULJ’s
finding is supported by the record. See Stagg, 796 N.W.2d at 315 (stating a ULJ’s factual
findings should not be disturbed if record evidence “reasonably tends to sustain them”).
Additionally, whether Grew performed other work is not relevant to whether Grew
committed employment misconduct by refusing to perform the assigned project. Grew’s
refusal to perform a spec ific task is enough to establish misconduct. See McGowan,
420 N.W.2d at 594 (determining relator’s refusal to perform one request by employer
amounted to employment misconduct).
Lastly, Grew argues that “[retiring accountant] said it was OK that I didn’t work on
the project until after the company meeting and my fate was determined.” But the record
lacks any evidence to support Grew’s claim. In short, Grew’s arguments are not legal
arguments that undercut the ULJ’s determina tion that he was terminated for employment
misconduct. Instead, Grew’s arguments are excuses for why he did not perform the
assigned project. We conclude that the ULJ’ s determination is s upported by caselaw and
record evidence.
Affirmed.