Opinion
No. C6-01-1796.
Filed May 28, 2002.
Appeal from Department of Economic Security, Agency File No. 500901
John W. Seaburg, (pro se relator)
Philip B. Byrne, Department of Economic Security, (for respondent Commissioner)
Jeanette M. Bazis, Greene Espel, P.L.L.P., (for respondent Quest)
Considered and decided by Stoneburner, Presiding Judge, Harten, Judge, and Anderson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
Relator challenges the commissioner's representative's decision that he was discharged due to employment misconduct, thereby disqualifying him from receiving unemployment benefits. Because the record reasonably supports the commissioner's representative's findings and conclusion, we affirm.
FACTS
Relator John W. Seaburg was an employee of respondent Qwest Corporation (Qwest). Relator received written warnings for inaccurately completing his timesheets and for persistent attendance problems. Relator's overall performance was rated unsatisfactory in a performance appraisal.
Relator's supervisors convened a meeting to discuss relator's attendance problems. Relator's supervisor testified before the unemployment law judge (ULJ) that relator became "agitated and loud" at the meeting, refused to sit down, and appeared "potentially violent."
On March 30, 2001, relator informed his supervisor by telephone that his doctor had placed him on light-duty work indefinitely. The supervisor requested that relator provide written documentation of the doctor's order. The supervisor testified that relator responded with profanity, which relator denies. Qwest suspended relator without pay and subsequently discharged him.
The ULJ found that relator had used profanity but concluded that relator was not disqualified from receiving benefits because the statement did not constitute misconduct. The ULJ reasoned that the supervisor had provoked the profanity, and cited to Mankato Lutheran Home v. Miller, 358 N.W.2d 96 (Minn.App. 1984), review denied (Minn. Feb. 6, 1985), for the proposition that an isolated use of profanity is not misconduct when it is provoked in part by a supervisor.
Qwest appealed to the commissioner's representative, who reversed the ULJ's decision, concluding that relator's actions constituted misconduct in violation of the standards Qwest had a right to expect of its employees. The commissioner's representative found that relator used profanity twice in the conversation with his supervisor. The representative also found that the March 30 incident was not relator's first incident of belligerent behavior or a single blemish on an otherwise outstanding employment record. This appeal followed.
DECISION
Under Minnesota law,
[a]n applicant who was discharged from employment by an employer shall not be disqualified from any unemployment benefits except when:
(1) the applicant was discharged because of employment misconduct[.]
Minn. Stat. § 268.095, subd. 4 (2000).
On appeal, we review the decision of the commissioner's representative rather than that of the unemployment law judge. Kalberg v. Park Recreation Bd. of Minneapolis, 563 N.W.2d 275, 276 (Minn.App. 1997). We afford "particular deference" to the commissioner's representative's decision, including findings involving witness credibility. Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995). We review the commissioner's representative's factual findings in the light most favorable to the decision and will not disturb them if they are reasonably sustained by evidence in the record. Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996).
The commissioner's representative's determination that an employee is disqualified for reasons of misconduct is a mixed question of law and fact. Colburn v. Pine Portage Madden Bros., Inc., 346 N.W.2d 159, 161 (Minn. 1984). The ultimate question of whether an employee has committed misconduct is a question of law, which we review de novo. Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).
Employment misconduct is defined as
(1) any intentional conduct, on the job or off the job, that disregards the standards of behavior that an employer has the right to expect of the employee or disregards the employee's duties and obligations to the employer; or
(2) negligent or indifferent conduct, on the job or off the job, that demonstrates a substantial lack of concern for the employment.
Minn. Stat. § 268.095, subd. 6.
Relator challenges the commissioner's representative's finding that he committed employee misconduct, arguing that this decision is unsupported by reliable or substantial evidence.
Each of relator's challenges to the commissioner's representative's findings concerns witness credibility. Relator acknowledges that this is a case of one witness against another but challenges the commissioner's representative's decision to credit Qwest's witnesses instead of relator's. Relator disputes accounts of alleged misconduct as related by Qwest's witnesses, and revisits disputed events to again offer his version of what happened. The commissioner's representative's credibility determinations are given great deference by this court, and there is no evidence that the determinations here warrant reversal. See Tuff, 526 N.W.2d at 51; Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn.App. 1995) ("When the parties have presented conflicting evidence on the record, this court must defer to the Commissioner's ability to weigh the evidence; we may not weigh that evidence on review." (citations omitted)).
The record reasonably supports the commissioner's representative's conclusion that Qwest discharged relator for misconduct. Qwest had a right to expect that relator would (1) honor its attendance policy; (2) not become confrontational in a meeting; and (3) not twice use profanity in addressing his supervisor. See Montgomery v. F M Marquette Nat'l Bank, 384 N.W.2d 602, 605 (Minn.App. 1986) (an employee's insubordinate behavior can constitute misconduct), review denied (Minn. June 13, 1986). Relator's repeated failure to comply with Qwest's attendance policy demonstrates disregard for Qwest's reasonable standards of behavior and demonstrates a substantial lack of concern for the employer.
The commissioner's representative found that relator's March 30 statements were the last in a series of belligerent acts. See Monyoro v. Marriott Corp., 403 N.W.2d 325, 328 (Minn.App. 1987) (describing the "last straw" doctrine, under which a series of violations of employer policies constitutes misconduct, even if each violation, taken individually, might not).
Relator's contention on appeal that his actions were inadvertent, and therefore not misconduct, is not convincing. Relator received written warnings concerning his continuing substandard performance. The evidence in the record is sufficient to support the commissioner's representative's decision that relator committed misconduct and should be disqualified from receiving unemployment benefits.