This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






LeRoy V. Dittbenner,





Tilsner Carton Co., Inc.,



Commissioner of Economic Security,



Filed June 24, 2003


Harten, Judge


Department of Economic Security


LeRoy V. Dittbenner, 126 East Ninth Street, St. Paul, MN 55101 (pro se relator)


Lee B. Nelson, Philip B. Byrne, Linda A. Holmes, Department of Economic Security, 390 North Robert Street, St. Paul, MN 55101 (for respondent Commissioner of Economic Security)


Tilsner Carton Co., Inc., 162 East York Avenue, St. Paul, MN 55117 (respondent)


            Considered and decided by Stoneburner, Presiding Judge, Harten, Judge, and Minge, Judge.

U N P U B L I S H E D   O P I N I O N




             Relator challenges the commissioner’s representative’s determination that he was discharged for misconduct and disqualified from receipt of unemployment benefits based on his violation of the employer’s policy against fighting in the workplace.  Because evidence in the record sustains that determination, we affirm.



            In December 1997,respondent Tilsner Carton Co. (Tilsner) employed relator LeRoy Dittbenner to repair pallets.  Among the regulations Tilsner promulgated in its employee handbook was a prohibition against fighting; the handbook said that fighting on the premises could result in immediate discharge.  Relator admitted at the hearing that he had the handbook and knew the policy. 

            Between September and December 2001, relator was involved in numerous loud arguments with his co-workers; he received six oral warnings about these outbreaks.  In one dispute, a co-worker was hit by a board that relator threw; relator testified at the hearing that he had thrown the board because his supervisor had said, “[T]oss that board.”

            Tilsner discharged relator because of an incident in December 2001.  The record includes two written accounts in which relator describes the incident. He claimed the person he hit made an obscene gesture and uttered an obscenity.  In one written account, relator said,

            I swung backwards, outwardly and behind me, it felt like I hit him.  I realized I had hit him I did not know where and left him.  To get away saying loud “I hit’m, I hit’m.”


In the other account, he said,

[I] swang backwards, outwardly and behind [myself], it felt like I hit him.  I did not know where, instantly the shock set-in and [I] left to tell someone saying aloud “I hit’m, I hit’m”.


During the hearing, relator testified about the incident in response to questions.


            Q.        [W]hat did you do at that point [when the co-worker said an obscenity]?


A         * * * I hear him say it and I just felt that there was a movement within my own muscle content.  I raised my hand and I know I just went at, towards his direction and kept on walking.  It was quite fast, it was fast.


Q.        So why did you do that?  Well, why did you do that?  Why did you swing back like that?


A.        I’ve been thinking about that for a time and it seems like there was just an involuntary move.  It wasn’t nothing that I intended on doing.  It wasn’t the pre-planned ‘cuz I’d know.


Q.        And when you swung back, did you hit [the other employee] or what happened?


A.        Well, he must have walked a little closer to me or something for him to be, you know, there near me, that near me.  I could’ve been moving as a gesture just to moment myself away from him.


Q.        Well, did you hit him?


A.        Well, apparently I felt that I had touched something, because I wear gloves also, but I knew that I had touched something I had thought, right afterwards I thought that I had done so.


Q.        Okay, did you say out loud I hit him, I hit him?


A.        Absolutely.


Q.        And why did you say that?


A.        Because, anyway, you know, I wanted to get out of there as quick as I could.


When relator was asked if there was any discussion of why he was being discharged, he replied, “I see, that could’ve been a point where I kinda thought I knew what was going to take place within my own self * * * .”

            Relator applied for unemployment benefits.  A department of economic security adjudicator, an unemployment law judge, and a representative of the commissioner of economic security successively determined that relator is disqualified for receiving benefits because he was discharged for statutory misconduct.  Relator challenges the representative’s determination.


            On appeal, a reviewing court must examine the decision of the commissioner’s representative.  Kalberg v. Park & Recreation Bd., 563 N.W.2d 275, 276 (Minn. App. 1997).  The commissioner’s representative’s factual findings are viewed in the light most favorable to the decision and are not disturbed if evidence in the record reasonably tends to sustain them.  Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996). 

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 * * * .


Minn. Stat. § 268.095, subd. 6(a) (2002).  The commissioner’s representative gave the following reason for his decision to disqualify relator for statutory misconduct:

[Relator] was discharged for violation of the company’s policy pertaining to fighting on the premises.  [Relator] had been warned about his behavior and had received two copies of the employer’s handbook that stated fighting at the workplace could result in discharge.  The employer has the right to expect its employees to adhere to its work rules.  [Relator]’s assertions that he is unable to control his actions [are] not credited; having a hot temper may explain behavior, it does not excuse the behavior.  [Relator] is responsible for his conduct.


 On appeal, relator makes no argument other than reiterating his claim that his conduct was an accident.   But relator’s own accounts of the incident show that, after he heard an obscenity he thought was directed at himself, he swung at and struck the person who had uttered the obscenity, and afterwards claimed, “I hit him, I hit him.”  There is no support for relator’s claim that his striking of his co-employee was accidental, and there is no basis for reversing the commissioner’s representative’s decision.