This opinion will be unpublished and

may not be cited except as provided by

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







Yusuf N. Adam,





First Contact, Inc.,



Commissioner of Economic Security,




Filed September 18, 2001

Klaphake, Judge


Department of Economic Security

File No. 749700



Emil Jalonen, Labor Relations Services, 1880 Orchard Lane, White Bear Lake, MN  55110 (for relator)


Ryan J. Trucke, Brutlag, Hartmann & Okoneski, 200 S. 6th Street, Suite 1100, Minneapolis, MN  55402 (for respondent First Contact)


Kent E. Todd, Minnesota Department of Economic Security, 390 North Robert St., St. Paul, MN  55101 (for respondent Commissioner)


            Considered and decided by Kalitowski, Presiding Judge, Klaphake, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N


            Relator Yusuf Adam challenges a decision by a representative of respondent Commissioner of Economic Security disqualifying him from receiving unemployment insurance benefits.  The commissioner’s representative determined that relator was discharged by his employer, respondent First Contact, for violating a policy that prohibited employees from “dropping” calls.  Relator claims that First Contact’s stated reason for discharging him was pretextual and that he was actually discharged in retaliation for filing a complaint with First Contact’s human resources department regarding a supervisor’s assault on him.  Because the evidence reasonably supports the decision of the commissioner’s representative that relator was discharged for employment misconduct, we affirm.


            Our review is limited to deciding whether the evidence in the record reasonably supports the decision of the commissioner’s representative.  Markel v. City of Circle Pines, 479 N.W.2d 382, 383-84 (Minn. 1992).  We view the commissioner’s findings in the light most favorable to the decision and defer to the commissioner’s resolution of conflicting evidence.  Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).  Moreover, we review the findings of the commissioner or the commissioner’s representative, not those of the unemployment law judge, even when those findings involve witness credibility.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).

            An employee is disqualified from receiving benefits if discharged because of employment misconduct.  Minn. Stat. § 268.095, subd. 4(1) (2000).  “Employment misconduct” is defined as any intentional conduct that “disregards the standards of behavior that an employer has the right to expect of the employee” or any negligent conduct that “demonstrates a substantial lack of concern for the employment.”  Minn. Stat. § 268.095, subd. 6(a).

The evidentiary hearing shall be conducted by an unemployment law judge without regard to any common law burden of proof as an evidence gathering inquiry and not an adversarial proceeding. 


Minn. Stat. § 268.105, subd. 1 (b).  Thus, both the employer and the employee should be permitted to present evidence regarding the reasons for discharge.  Cf. Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  “The factfinder is then obligated to weigh the evidence, determine credibility, and make a determination on the reasons for the discharge.”  Id. (citing Jeane Thorne Temp. Serv. v. Elliott, 351 N.W.2d 393, 395 (Minn. App. 1984) (affirming credibility determination in favor of employee and against supervisor, when employee claimed that supervisor had previously harassed him and that he was not discharged for misconduct, as employer alleged)).

            Relator worked for First Contact as a customer service representative from November 1998 to August 16, 2000, handling incoming calls from cell phone customers regarding service changes or account inquiries.  First Contact had a policy prohibiting an employee from “dropping” calls.  A dropped call occurs when an employee (1) picks up a call and hangs up; (2) answers a call and places the customer on hold for so long that the customer hangs up; (3) places the customer on hold and then just disconnects the customer; or (4) transfers the customer to another number without assisting the customer.  First Contact’s policy provided for oral warnings, which were often documented in writing, probation, and eventual termination after receipt of three warnings in a six-month period.

            Here, the commissioner’s representative specifically found that relator received warnings for dropping calls in March, June, July, and August 2000, that he was advised that he could be terminated for the next offense, and that he was discharged on August 16, 2000, for dropping customer calls.  Relator denies dropping calls, notes that he refused to sign these warnings, and claims that it was not his fault if a customer decided to hang up after he spoke to the customer and placed him or her on hold.  Nevertheless, the findings of the commissioner’s representative are reasonably supported by the documentary evidence, which includes computer-generated reports of calls taken by relator and several written “Documented Verbal Warnings,” and by the testimony of two First Contact supervisors, who either issued some of these written warnings or witnessed instances of relator dropping calls.

            Relator further argues that it was not reasonable for the commissioner’s representative to fail to make any findings regarding his claim that he was discharged not for dropping calls, but for complaining about a supervisor’s conduct on August 14, a few days before his discharge, in which the supervisor had yelled at him, grabbed his arm, and slammed it down on a desk.  When the reason for the discharge is disputed, “the hearing process must allow evidence on the competing reasons and provide factual findings on the cause of discharge.”  Scheunemann, 562 N.W.2d at 34 (remanding to allow employee to present evidence regarding her claim that she was discharged for complaining about sexual harassment, not because of her attendance problems).

            Here, relator was given an opportunity to present evidence on his claim that he was discharged for other reasons.  Although the commissioner’s representative did not make specific findings rejecting relator’s claim, the commissioner’s representative impliedly did so by determining that relator was discharged for dropping calls.  See Harringer v. AA Portable Truck & Trailer Repair, Inc., 379 N.W.2d 222, 224 (Minn. App. 1985) (rejecting employer’s argument that commissioner erred by failing to address additional reasons asserted by employer for employee’s discharge).  It is not our function to second-guess the commissioner’s findings or reweigh the evidence when the record supports those findings.  Reddmann v. Kokesch Trucking, Inc., 412 N.W.2d 828, 830 (Minn. App. 1987).  Moreover, as the commissioner notes, relator’s claim that he was discharged for other reasons “lacks merit” because the record documents several instances before and after the August 14 incident involving the supervisor in which relator dropped calls, thus justifying his termination on August 16.

            The decision of the commissioner’s representative is therefore affirmed.