This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
Commissioner of Economic Security
File No. 1223401
Joseph H. Belzer, Law Offices of Joseph H. Belzer, Box 26036, St. Louis Park, MN 55426 (for relator)
Jeanette M. Bazis, Stacy Lynn Bettison, Greene, Espel, P.L.L.P., Suite 1200, 200 South Sixth Street, Minneapolis, MN 55402-1415 (for respondent Qwest)
M. Kate Chaffee, Lee B. Nelson, Department of Economic Security, 390 North Robert Street, St. Paul, MN 55101 (for respondent Commissioner)
Considered and decided by Klaphake, Presiding Judge, Lansing, Judge, and Stoneburner, Judge.
Relator Grace A. Atkinson challenges the commissioner’s representative’s determination that she was terminated from employment for misconduct and therefore disqualified from receiving unemployment benefits. We reverse.
Relator Grace Atkinson worked for Qwest for 28 years and had an exemplary employment record until she was terminated for confronting a coworker. Atkinson was the subject of harassment for approximately one year prior to her termination. An unknown coworker or coworkers were putting pins, up to two inches long, and tacks on Atkinson’s chair and other places in her workspace when she was away from her cubicle. The settings on her phone and headset were also being changed. For more than a seven-month period, Atkinson complained to her supervisor, her supervisor’s supervisor, two levels of management in human resources, and different levels of management in the employer’s security department. She received no relief.
Based on seeing Corey Doran approach her cubicle as if to throw something and quickly leave when Doran noticed that Atkinson was there, Atkinson believed that Doran was one of the perpetrators. Atkinson reported her observation to the senior director by voicemail. About one month later, Atkinson arrived at work to find her telephone settings had again been changed. Atkinson was angry and upset. She went to Doran’s workspace; sat very close to her; said, “Stay the f*** away from my phone and stay out of my cube”; and touched Doran on both sides of her face. Doran later reported that the touch was hard enough to sting.
Atkinson was placed on an indefinite unpaid suspension while an investigation was conducted. After the investigation, Atkinson was discharged for violating the employer’s policy against workplace violence, which provides: “we will not tolerate acts or threats of violence (e.g. threatening language – verbal, written or visual – gestures, and behavior).”
Atkinson applied for and received unemployment benefits. The Department of Economic Security initially determined there was no employment misconduct because while Atkinson did touch a co-worker, there was insufficient evidence that she hit the co-worker. Qwest appealed. An unemployment law judge reversed the initial determination and found that Atkinson was discharged for employment misconduct. Atkinson appealed to the commissioner’s representative.
The commissioner’s representative affirmed the decision finding that Atkinson was discharged for employment misconduct. The commissioner’s representative made no findings that Atkinson’s conduct was intentional or that she intentionally disregarded the standards of behavior her employer had the right to expect or her duties and obligations to her employer, but concluded that Atkinson’s conduct “violated the standards of behavior the employer had a right to expect. It amounts to employment misconduct.” This appeal followed.
D E C I S I O N
Appellate review in economic security cases is narrow. McGowan v. Executive Express Transp. Enters., Inc., 420 N.W.2d 592, 594 (Minn. 1988). Decisions of the commissioner’s representative are accorded particular deference. Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).
An individual who is discharged for misconduct is disqualified from receiving unemployment benefits. Minn. Stat. § 268.095, subd. 4(1) (2002). Whether an employee has engaged in disqualifying misconduct is a mixed question of fact and law. McCourtney v. Imprimis Tech., Inc., 465 N.W.2d 721, 724 (Minn. App. 1991). The determination of whether the employee committed a particular act or acts is a question of fact. Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997). But whether the act or acts constitute misconduct is a question of law on which appellate courts are “free to exercise [their] independent judgment.” Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).
Employment misconduct means:
(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) (2002).
For the conduct to be intentional, it must be deliberate, Ress, 448 N.W.2d at 524, and not accidental. Am. Family Ins. Co. v. Walser, 628 N.W.2d 605, 611 (Minn. 2001). And
there must be a sufficient showing in the record that the employee not only engaged in intentional conduct, but also intended to, or engaged in conduct that evinced an intent to, ignore or pay no attention to his or her duties and obligations or the standards of behavior the employer has a right to expect.
Houston v. Int’l Data Transfer Corp., 645 N.W.2d 144, 150 (Minn. 2002).
Implicit in the commissioner’s representative’s findings is a finding that Atkinson intentionally confronted Doran, told her to stay away from Atkinson’s cubicle, and touched her face. Qwest’s security manager testified from a report that said Doran stated that the touch was hard enough to sting. The commissioner’s representative apparently found this hearsay evidence reliable and credible. The record supports a finding that Atkinson intentionally confronted Doran. But there is no finding that Atkinson’s actions violated Qwest’s violence policy, that Atkinson intentionally violated the violence policy, or that Atkinson intentionally ignored her duties or obligations to Qwest or the standards of behavior that Qwest had a right to expect. Atkinson testified that she did not ever consider that she had violated the violence policy of the company. She testified that she did not threaten Doran, did not slap Doran, and did not intend to hurt her. Atkinson testified that she was angry and upset that the continued harassment was causing her intense stress and suffering, and because she had received no relief from management, she believed it was up to her to stop it.
Although we do not condone Atkinson’s confrontation and touching of Doran, the record does not support, and the commissioner’s representative did not find that Atkinson’s touching of Doran was violent or sufficiently forceful to constitute a slap or hit. And there is no finding that Atkinson threatened Doran. Having thoroughly reviewed the record, we find nothing to indicate that Atkinson intentionally violated Qwest’s violence policy by telling Doran to stay away from her and by touching her face, or that Atkinson ignored or paid no attention to her duties and obligations to Qwest or the standards of behavior that Qwest had a right to expect.
 Doran did not testify at the hearing. Atkinson testified that she did not slap Doran and only lightly touched her: “It was like a pat, like so there, so do you get it?”