This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
Jeanette M. Buck,
Commissioner of Economic Security,
Filed July 1, 2003
File No. 493602
Jeanette M. Buck, 727 Fifth Avenue South, Apt. #113, Minneapolis, Minnesota 55415 (pro se relator)
OfficeTeam, Robert Half Corp., 5720 Stoneridge Drive, #3, Pleasanton, California 94588 (respondent)
Lee B. Nelson, M. Kate Chaffee, Department of Economic Security, 390 North Robert Street, St. Paul, Minnesota 55101 (for respondent commissioner)
Considered and decided by Klaphake, Presiding Judge, Willis, Judge, and Hudson, Judge.
U N P U B L I S H E D O P I N I O N
Relator challenges the decision by the commissioner’s representative that she was discharged for employment misconduct, disqualifying her from receipt of unemployment benefits. Because the evidence supports the commissioner’s representative’s decision that relator’s conduct violated the standard the employer had the right to expect, thus constituting employment misconduct, we affirm.
Relator Jeanette M. Buck was employed by OfficeTeam, a specialized staffing service, on a series of temporary assignments. On August 22, 2001, Buck began an assignment with Wells Fargo Mortgage as a mortgage clerk. Buck was discharged on December 21, 2001, after a confrontation with a coworker.
Buck established a benefits account with the Department of Economic Security; the department initially determined that she was entitled to unemployment benefits. OfficeTeam appealed that determination, and a hearing was held before an unemployment law judge.
A representative from OfficeTeam testified that Wells Fargo did not want Buck to continue on the assignment because she had engaged in a shouting match, including swearing, with another employee. The OfficeTeam representative testified that although they had worked through other issues with Buck throughout the assignment, the swearing confrontation was the reason that Buck was no longer working there.
Buck testified that at the December confrontation, she looked at another employee, who swore at her, asking, “What the f--- are you looking at?” Buck then replied “something to the effect that ‘I’m looking at you, b----,’ you know, and it went from there.” In an interview with her supervisor the next day, Buck acknowledged that she had been in a “shouting screaming match” and that she was not proud of her own behavior. But she characterized this episode as the final straw in problems with her work assignment. She testified that she had previously spoken to the Wells Fargo supervisor about small items that had been taken out of her desk drawer, apparently by another employee who shared the desk during a different shift. She stated that she had seen a lot of favoritism being shown, apparently concerning work schedules, and she had spoken to her supervisors about that issue. She stated that she repeatedly requested another assignment, but the request was refused. She believed that the discharge was in retaliation for her requests for reassignment.
The unemployment law judge reversed the initial benefits determination, finding that Buck was discharged for employment misconduct. On further appeal, the commissioner’s representative affirmed that decision, concluding that Buck’s intentional conduct disregarded the standards of behavior the employer had a right to expect. Buck filed a writ of certiorari to this court.
D E C I S I O N
This court’s review of unemployment-insurance cases is narrow and limited to determination of whether the record reasonably supports the decision of the commissioner’s representative. Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995); Cent. Specialties v. Comm’r of Econ. Sec., 622 N.W.2d 833, 835 (Minn. App. 2001), review denied (Minn. May 15, 2001). We review the commissioner’s representative’s factual findings in the light most favorable to the decision. Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002). Whether an employee has committed disqualifying misconduct is a mixed question of fact and law. McCourtney v. Imprimis Tech., Inc., 465 N.W.2d 721, 724 (Minn. App. 1991). Whether the employee committed a particular act is a factual question, but the interpretation of that act as misconduct is a question of law. Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997). This court may exercise its independent judgment on issues of law. Ress v. Abbott N.W. Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).
An employee discharged for misconduct is disqualified from receiving unemployment benefits. Minn. Stat. § 268.095, subd. 4 (2002). According to the relevant statute, disqualifying 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).
In this case, the commissioner’s representative concluded that Buck’s intentional conduct of engaging in the verbal altercation violated the standards her employer had the right to expect. The Minnesota Supreme Court has recently interpreted “intentional” conduct in this context as “deliberate and not accidental.” See Houston v. Int’l Data Transfer Corp., 645 N.W.2d 144, 150 (Minn. 2002) (interpreting Minn. Stat. § 268.095 as requiring, for purposes of disqualification from benefits on the ground of employment misconduct, that employee “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 the right to expect”). At the hearing before the unemployment law judge, Buck acknowledged her shouting and screaming behavior during the incident in question and stated that she was not proud of it. Her admission constitutes evidence that she engaged in deliberate behavior and that she evinced an intent to violate the standards of behavior that her employer had the right to expect.
Buck argues that her behavior in this one instance should not, by itself, constitute disqualifying misconduct, particularly since she was provoked by the statement of the other employee. But “[w]e are not free to supply an ‘isolated instances’ exception to the statutory definition of misconduct.” Isse v. Alamo Rent-A-Car, 590 N.W.2d 137, 140 (Minn. App. 1999), review denied (Minn. Apr. 20, 1999). In Isse, this court upheld an administrative finding that grabbing and shoving another employee on a single occasion violated the standard of behavior that the employer had a right to expect. Id. at 139. We acknowledge that the other employee’s conduct was also unacceptable; but that did not excuse relator’s own conduct. Relator was free to leave the area and report the employee’s conduct to a supervisor. She chose not to do so. Therefore, we conclude that Buck’s single incident of unprofessional conduct did constitute employment misconduct disqualifying her from receiving unemployment benefits.
Buck also contends that her discharge occurred because her supervisor did not want to deal with the problem of reassigning her. But the commissioner’s representative chose to credit the testimony of Buck’s supervisor at OfficeTeam, who stated that although she had worked through a number of issues with Buck, the reason that Buck was no longer on the job was the confrontation with her coworker. This court defers to the credibility determinations of the commissioner’s representative. Jenson v. Dept of Econ. Sec., 617 N.W.2d 627, 631 (Minn. App. 2000), review denied (Minn. Dec. 20, 2000).
Buck finally asserts that the commissioner’s representative did not give her a fair hearing because the representative stated in her ruling that Buck started work in July 2001, rather than the correct date of July 31, 2000. But such a minor clerical mistake constitutes harmless error that does not prejudice her case. See, e.g., Walco Leasing v. Bilich, 383 N.W.2d 374, 379 (Minn. App. 1986) (concluding that no prejudice to relator occurred when commissioner’s representative failed to accept as determinative certain findings which were read into the record by the referee).
The commissioner’s representative correctly concluded that Buck’s behavior constituted misconduct pursuant to Minn. Stat. § 268.095, subd. 6, disqualifying her from receiving unemployment benefits.