This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
IN COURT OF APPEALS
Department of Economic Security
File No. 489301
Chowdhury A. Ahsan, 1005 15th Avenue Southeast, Apartment #6, Minneapolis, MN 55414 (relator pro se)
Philip B. Byrne, Linda Holmes, Department of Economic Security, 390 North Robert Street, St. Paul, MN 55101 (for respondent Commissioner)
Radisson Inn c/o The Frick Company, Box 283, St. Louis, MO 63166-0283 (respondent employer)
Considered and decided by Randall, Presiding Judge, Stoneburner, Judge, and Huspeni, Judge.*
Relator Chowdhury Ahsan seeks review of the commissioner’s representative’s decision that he is disqualified from receiving unemployment benefits because he was terminated from his employment for misconduct. We affirm.
The St. Paul Radisson Hotel employed Ahsan as a security officer from August 29, 2000 to March 5, 2001. In November 2000, the hotel’s director of security gave Ahsan an unfavorable performance review indicating that Ahsan had problems with other employees ranging from tactless behavior to workplace conflicts.
Ahsan instigated an altercation with another security officer in February 2001. In March 2001, the hotel received a complaint from a female gift-shop employee who indicated that Ahsan was spending an unwarranted amount of time during his shift in the gift shop when she was working.
Ahsan was involved in an incident with another female gift-shop employee on March 4, 2001. The commissioner’s representative found that Ahsan, who was not in a supervisory position over the gift-shop employee, threatened to get her in trouble if she did not stop talking on the telephone and wrote up a report critical of the gift-shop employee’s use of the telephone. Ahsan’s supervisors interviewed the employees involved and found Ahsan’s written report to be untruthful. As a result, Ahsan was suspended pending an investigation and terminated when the investigation was complete. The director of security testified that Ahsan had exhibited a pattern of not respecting other employees. The separation record indicates that Ahsan was terminated for lying on his security report.
Ahsan was also accused of opening a sealed Playboy magazine in the gift shop, reading it, and then stapling the plastic together before returning the magazine to the shelf. Ahsan testified that the plastic on the magazine had been ripped by a guest a few days earlier and that he had stapled the plastic and returned the magazine to the shelf without looking at it. The commissioner’s representative did not make findings about this incident and did not mention this incident in his decision.
Whether an employee has committed employment misconduct presents a mixed question of fact and law. Colburn v. Pine Portage Madden Bros., 346 N.W.2d 159, 161 (Minn. 1984). We employ a narrow standard of review on appeals from the Commissioner of Economic Security and will not disturb the commissioner’s representative’s findings “if the record contains evidence that reasonably tends to sustain them.” Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995) (citing White v. Metro. Med. Ctr., 332 N.W.2d 25, 26 (Minn. 1983)). The ultimate determination of whether an employee is disqualified from receipt of unemployment benefits, however, is a question of law that this court reviews de novo. Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989). This court will affirm if the findings of fact are supported by the evidence and if the conclusions of law are not contrary to law. Colburn, 346 N.W.2d at 161.
An employee who is discharged for employment misconduct is disqualified from receiving unemployment benefits. Minn. Stat. § 268.095, subd. 4(1) (2000). 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.
Id., subd. 6(a). But,
[i]nefficiency, inadvertence, simple unsatisfactory conduct, poor performance because of inability or incapacity, or absence because of illness or injury with proper notice to the employer, are not employment misconduct.
Id., subd. 6(b).
Radisson argues that Ahsan disregarded the standards of behavior that an employer has the right to expect of an employee. Radisson contends that Ahsan intentionally filed a false report indicating that the gift-shop employee was on the telephone at least three times on March 4, 2001. Radisson claims that Ahsan’s false report violated Radisson’s policy, outlined in its Employee Handbook, which requires employees to “be honest in giving or recording any information.” The violation of an employer’s policy constitutes misconduct. Sivertson v. Sims Sec., Inc., 390 N.W.2d 868, 871 (Minn. App. 1986), review denied (Minn. Aug. 20, 1986). Ahsan stated on his application for unemployment benefits that he knew that he could be discharged for writing false reports.
But Ahsan argues that his report is completely accurate. He contends that he was “simply doing [his] job” and that his visits to the gift shop were justified. Ahsan also contends that his termination was a “random act by a biased and inconsiderate employer.” Ahsan, however, failed to present any evidence at the hearing of this alleged bias. He merely stated that the director of security did not like him and “wanted to get rid of [him].” The record contains no evidence to support Ahsan’s claim of bias.
After interviewing the parties involved, Radisson concluded that Ahsan “had falsely accused [the gift-shop employee] of being on the phone to get her in trouble with her managers.” The commissioner’s representative found that, by “paying a disproportionate amount of attention to the gift shop whenever particular female employees were working,” Ahsan was “acting contrary to [Radisson’s] interests.” The fact that Ahsan’s actions did not cause direct harm to Radisson is irrelevant. See Sivertson, 390 N.W.2d at 871 (holding that “[h]arm is not necessary for a determination of misconduct, which is defined in part as conduct which evidences an ‘intentional and substantial disregard of the employer’s interests’”). The record supports the representative of the commissioner’s conclusion that Ahsan’s acts were intentional and in violation of the standards of behavior that Radisson had a right to expect from him.
The commissioner’s representative also found that Ahsan “had been counseled regarding his problems with other employees.” Ahsan claims that he did not receive any oral or written warnings about his behavior. But Ahsan admitted that he signed and received his November 2000 performance appraisal, which specifically stated that Ahsan “should work at team player skills to avoid conflicts with other employees.” The hotel’s director of security also testified that he met with Ahsan on several occasions to discuss his inappropriate workplace behavior. The record, therefore, contains evidence to support the representative of the commissioner’s conclusion that Ahsan had received prior warnings about his behavior.
The commissioner’s representative apparently determined that Ahsan’s testimony was not credible and that testimony from Radisson’s representatives was credible. When the parties present conflicting evidence, we must defer to the representative of the commissioner’s ability to weigh the evidence; “we may not weigh that evidence on review.” Whitehead, 529 N.W.2d at 352 (citations omitted). We affirm the decision of the representative of the commissioner because, when viewed in a light most favorable to the decision, the findings of the commissioner’s representative are supported by the evidence.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.