This opinion will be unpublished and

may not be cited except as provided by

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






Douglas S. Sexton,





Hitchcock Industries,



Commissioner of Economic Security,



Filed July 30, 2002


Toussaint, Chief Judge


Department of Economic Security

File No. 896801


Douglas S. Sexton, 3651 19th Avenue South, Minneapolis, MN 55407 (pro se appellant)


Hitchcock Industries, c/o The Frick Company, 8701 Harriet Avenue South, Minneapolis, MN  55420 (pro se respondent)


Philip B. Byrne, Commissioner of Economic Security, Linda Alison Holmes, 390 N. Robert Street, St. Paul, MN 55101 (for respondent)


            Considered and decided by Toussaint, Chief Judge, Randall, Judge, and Forsberg, Judge.*


U N P U B L I S H E D  O P I N I O N

TOUSSAINT, Chief Judge

            Relator Douglas S. Sexton seeks certiorari review of the decision by the commissioner’s representative that he was discharged for misconduct.  Relator argues that because he punched a co-worker in self-defense, his actions did not constitute misconduct.  Because the record supports the conclusion that relator’s act of punching his co-worker was misconduct, we affirm.



            An appellate court conducts a narrow review of a decision by the Commissioner of Economic Security.  Markel v. City of Circle Pines, 479 N.W.2d 382-83 (Minn. 1992).  Whether the employee committed the act alleged to be misconduct is a fact question. Scheunemann v. Radisson South Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  The commissioner’s representative’s findings are reviewed in the light most favorable to the decision and will be upheld if the evidence in the record reasonably supports those findings.  Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996).  Whether the employee’s behavior constituted misconduct is a question of law reviewed de novo on appeal.  Monyoro v. Marriott Corp., 403 N.W.2d 325, 328 (Minn. App. 1987). 

An employee who is discharged for “employment misconduct” is disqualified from receiving unemployment compensation benefits.  Minn. Stat. § 268.095, subd. 4(1) (2000).  Under the current statutory scheme, employee misconduct is defined as follows:

(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(a) (2000).

Relator Douglas S. Sexton, whose employment was terminated for punching co-worker Mike Netz while at work, challenges the commissioner’s representative’s determination that he was fired for misconduct.   

“An employer has a right to expect employees not to physically fight at work.”  See Hines v. Sheraton Ritz Hotel, 349 N.W.2d 329, 330 (Minn. App. 1984).  Moreover, physically fighting at work constitutes misconduct where it endangers or hurts people.  Shell v. Host Int’l (Corp.), 513 N.W.2d 15, 18 (Minn. App. 1994) (reviewing other cases in which co-workers were injured or endangered).

The record shows that respondent Hitchcock Industries’ employee handbook stated that fighting on the job could result in the termination of employment.  While relator testified that he did not receive an employee handbook when he returned to his employment in 2000, he testified that one may have been available.  The employer’s human resources director, however, testified that when relator first joined the company in 1998 he received a handbook and that the company had not revised the handbook since then.  On these facts, the commissioner was within his discretion in finding that relator was aware of his employer’s policy against fighting.  See Dean v. Allied Aviation Fueling Co., 381 N.W.2d 80, 83 (Minn. App. 1986) (stating that determinations regarding credibility lie within province of commissioner’s representative). 

The record also shows the following: (1) relator was insulted by Netz during a verbal altercation; (2) relator was aware that his employer’s harassment policy stated that employees must report incidents of harassment to their supervisor; (3) while relator told Netz to file a complaint with his supervisor if he had a problem with him, relator continued to argue with Netz rather than walking away or reporting the verbal altercation to his own supervisor;  (4) relator followed Netz to his work area even after Netz walked away from him; (5) relator admitted that there was a supervisor to whom he could have reported the incident but that he “just went by his office” on the way to Netz’s work area; and (6) relator admitted that he threw the first punch. 

Here, there is no dispute that relator was involved in a physical fight with Netz.  However, relator claims that he was acting in self-defense because he believed that Netz, who was walking in his direction in a “heated manner,” was going to hit him.  We disagree.  Relator followed Netz to his work area even after Netz walked away from him, and then, threw the first punch.  While relator claims that he went to Netz’s work area because he wanted to find out the name of his supervisor in order to report the incident, relator should have known, in light of the existing tension between the two, that this action would have further angered Netz.  Relator was clearly the aggressor.  In light of the existing statutes and caselaw, these facts indicate that relator’s conduct was not an act of self-defense, but rather, an act within the statutory definition of misconduct in that it disregards “the standards of behavior that an employer has the right to expect of the employee.”  Minn. Stat. § 268.095, subd. 6 (a); see also State v. Basting, 572 N.W.2d 281, 285 (Minn. 1997) (stating that individual claiming self-defense cannot be aggressor).

            Because the commissioner’s findings were reasonable and relator’s conduct falls within the statutory definition of misconduct, the commissioner’s representative did not err in concluding that relator’s behavior constituted misconduct.


* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn.Const. art. VI, § 10.