This opinion will be unpublished and

may not be cited except as provided by

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

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-01-1796

 

 

John W. Seaburg,

Relator,

 

vs.

 

Qwest Corporation,

Respondent,

Commissioner of Economic Security.

 

 

Filed May 28, 2002

Affirmed

Anderson, Judge

 

Department of Economic Security

Agency File No. 500901

 

John W. Seaburg, P.O. Box 134, Winthrop, MN† 55396-0334 (pro se relator)

 

Philip B. Byrne, Department of Economic Security, 390 North Robert Street, St. Paul, MN† 55101 (for respondent Commissioner)

 

Jeanette M. Bazis, Greene Espel, P.L.L.P., 333 South Seventh Street, Suite 1700, Minneapolis, MN† 55402 (for respondent Quest)

 

††††††††††† Considered and decided by Stoneburner, Presiding Judge, Harten, Judge, and Anderson, Judge.

 


U N P U B L I S H E D† O P I N I O N

 

G. BARRY ANDERSON, Judge.

 

††††††††††† Relator challenges the commissionerís representativeís decision that he was discharged due to employment misconduct, thereby disqualifying him from receiving unemployment benefits.† Because the record reasonably supports the commissionerís representativeís 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.† Relatorís overall performance was rated unsatisfactory in a performance appraisal.

Relatorís supervisors convened a meeting to discuss relatorís attendance problems.† Relatorís supervisor testified before the unemployment law judge (ULJ) that relator became ďagitated and loudĒ at the meeting, refused to sit down, and appeared ďpotentially violent.Ē†††

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 doctorís 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 commissionerís representative, who reversed the ULJís decision, concluding that relatorís actions constituted misconduct in violation of the standards Qwest had a right to expect of its employees.† The commissionerís representative found that relator used profanity twice in the conversation with his supervisor.† The representative also found that the March 30 incident was not relatorís first incident of belligerent behavior or a single blemish on an otherwise outstanding employment record.† This appeal followed.††††††††††

D E C I S I O N

 

††††††††††† 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. ß 268.095, subd. 4 (2000).

 

On appeal, we review the decision of the commissionerís 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 ďparticular deferenceĒ to the commissionerís representativeís decision, including findings involving witness credibility.† Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).† We review the commissionerís representativeís 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 commissionerís representativeís 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 employeeís 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. ß 268.095, subd. 6.

††††††††††† Relator challenges the commissionerís representativeís finding that he committed employee misconduct, arguing that this decision is unsupported by reliable or substantial evidence.†

††††††††††† Each of relatorís challenges to the commissionerís representativeís findings concerns witness credibility.† Relator acknowledges that this is a case of one witness against another but challenges the commissionerís representativeís decision to credit Qwestís witnesses instead of relatorís.† Relator disputes accounts of alleged misconduct as related by Qwestís witnesses, and revisits disputed events to again offer his version of what happened.† The commissionerís representativeís 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) (ďWhen the parties have presented conflicting evidence on the record, this court must defer to the Commissionerís ability to weigh the evidence; we may not weigh that evidence on review.Ē (citations omitted)).†

††††††††††† The record reasonably supports the commissionerís representativeís 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 Natíl Bank, 384 N.W.2d 602, 605 (Minn. App. 1986) (an employeeís insubordinate behavior can constitute misconduct), review denied (Minn. June 13, 1986).† Relatorís repeated failure to comply with Qwestís attendance policy demonstrates disregard for Qwestís reasonable standards of behavior and demonstrates a substantial lack of concern for the employer.†

††††††††††† The commissionerís representative found that relatorís 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 ďlast strawĒ doctrine, under which a series of violations of employer policies constitutes misconduct, even if each violation, taken individually, might not).††

Relatorís 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 commissionerís representativeís decision that relator committed misconduct and should be disqualified from receiving unemployment benefits.

††††††††††† Affirmed.