This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-00-1709

 

 

Scott M. Knack,

Relator,

 

vs.

 

Doc’s Bohemian Cue, Inc.,

Respondent,

 

Commissioner of Economic Security,

Respondent.

 

 

Filed May 29, 2001

Affirmed

Halbrooks, Judge

 

Department of Economic Security

File No. 436000

 

 

Scott M. Knack, 12472 Fergus Court NE, Blaine, MN 55449 (relator)

 

Joseph F. Kueppers, Kueppers, Hackel & Kueppers, P.A., 800 Firstar Center, 101 East 5th Street, St. Paul, MN 55101 (for respondent Doc’s Bohemian Cue)

 

Kent E. Todd, 390 North Robert Street, St. Paul, MN 55101 (for respondent commissioner)

 

            Considered and decided by Halbrooks, Presiding Judge, Lansing, Judge, and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            The commissioner’s representative determined that relator was disqualified from receiving benefits because he was discharged for two instances of employee misconduct.  Relator challenges the representative’s credibility determination and contends his actions were insufficient to constitute disqualifying misconduct.  Because the evidence reasonably supports the determination of the commissioner’s representative, we affirm.

FACTS

            On October 15, 1991, relator Scott M. Knack was hired by Doc’s Bohemian Cue, Inc., a pool parlor owned by Paul Rutter.  In 1996, two female co-workers complained to Rutter that relator was sexually harassing them.  At least one of the females was a teenager at that time; relator was over 30 years old.  On May 13, 1996, in a letter, Rutter told relator that it had come to his attention that over the past three years, relator had been using his position to sexually harass former and present female employees and customers.  Rutter warned relator that if he received more complaints regarding relator’s behavior, relator would be terminated. 

On March 30, 2000, one of the same complainants told Rutter that she had received a note from relator asking for sexual favors in return for a bet she had lost to him.  Although the co-worker could not produce the note, Rutter terminated relator on April 3, 2000.  Relator applied for unemployment benefits, but the Minnesota Department of Economic Security determined that relator was ineligible for unemployment benefits because he had committed employee misconduct.  An unemployment law judge reversed the determination, finding that, although relator engaged in “foolish behavior,” there was insufficient evidence to find he sexually harassed the co-worker and, therefore, his termination could not be based on misconduct.  The commissioner’s representative reversed and denied relator benefits.  This appeal follows.

D E C I S I O N

            Relator challenges the commissioner’s representative’s finding that he committed employee misconduct.  He argues that there is insufficient evidence to support this decision because it is based on credibility determinations that the commissioner’s representative made from a paper record.

            But consistent with precedent, we must give “particular deference” to the decision of the commissioner’s representative, not the unemployment law judge.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  This court must affirm if there is “reasonable support in the evidence” to sustain the representative’s decision.  Williams v. Right Step Academy, 607 N.W.2d 482, 484 (Minn. App. 2000) (citation omitted).  Thus, we view the commissioner’s representative’s factfindings, even findings involving witness credibility, in the light most favorable to the decision, and will sustain them if there is evidence reasonably supporting them.  Tuff, 526 N.W.2d at 51. 

            Applying this standard of review, we find that the record, which includes the testimony of Rutter and the co-worker, supports the commissioner’s representative’s decision.  To establish whether an employee has committed conduct warranting the loss of benefits, this court considers:

(1) whether an employee deliberately violated standards of behavior which the employer has a right to expect of its employee, (2) whether an employee’s conduct adversely affected the business or other employee’s morale, and (3) whether an employee ignored past warnings.

 

Ress v. Abbott NW Hosp., Inc., 448 N.W.2d 519, 524 (Minn. 1989) (citing Auger v. Gillette Co., 303 N.W.2d 255, 257 (Minn. 1981)); see also Minn. Stat. § 268.095, subd. 6(a) (2000) (defining employee misconduct as “any intentional conduct * * * 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”).

            Here, the record supports two kinds of employee misconduct.  First, relator’s conduct affected the morale of a fellow employee, and second, relator disregarded Rutter’s previous warning.  The commissioner’s representative explicitly found that relator’s testimony was not credible, but that the complainant’s testimony was credible.  See Tuff, 526 N.W.2d at 51 (noting that the appellate court refers to the commissioner’s representative’s findings of credibility, not the unemployment law judge).

            Relator complains that the finding of misconduct is unfair because Rutter did not conduct a full investigation.  But the issue is not whether relator’s termination was fair, but whether, now that he is unemployed, he should be denied unemployment compensation benefits as well.  Fujan v. Ruffridge-Johnson Equip., 535 N.W.2d 393, 395 (Minn. App. 1995).  Because relator’s actions constitute disqualifying misconduct, we find the commissioner’s representative did not err in denying him benefits.

            Affirmed.