This opinion will be unpublished and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
Daniel E. Strong,
Commissioner of Employment and Economic Development,
Department of Employment and Economic Development
Agency File No. 5877 02
John Paul Plachecki, Darby, Delano & Price, 59 West Third Street, Winona, MN 55987 (for relator)
Paul Mundt, Law Offices of Southern Minnesota Regional Legal Services, Inc., 66 East Third Street, P.O. Box 1266, Winona, MN 55987-7266; and
Charles H. Thomas, 12 Civic Center Plaza, Suite 3000, P.O. Box 3304, Mankato, MN 56002(for respondent-employee)
Lee B. Nelson, Philip B. Byrne, Minnesota Department of Employment and Economic Development, 390 Robert Street North, St. Paul, MN 55101 (for respondent-commissioner)
Considered and decided by Anderson, Presiding Judge, Shumaker, Judge, and Halbrooks, Judge.
GORDON W. SHUMAKER, Judge
The employer, relator Strong Salvage, challenges the Minnesota Department of Employment and Economic Development commissioner's representative's ruling that respondent Daniel Strong was discharged from working at Strong Salvage for reasons other than employment misconduct and that respondent was entitled to receive unemployment benefits. We affirm.
Respondent Daniel Strong worked as a laborer for relator Strong Salvage, which is co-owned by one of respondent’s brothers, Eugene Strong, and respondent’s sister-in-law, Rosemarie Strong. Relator is a salvage business that collects salvage and scrap materials and disposes of them properly, but does not resell them.
On February 1, 2001, Rosemarie Strong gave respondent a termination letter, which stated that he was being discharged because of his “continued insubordination and previous incidents on the job.” She also listed various specific reasons for his termination, including carelessness with tools and equipment, lack of interest in the current job position, defiant attitude, and being warned repeatedly not to remove items from the workplace.
At the hearing before the unemployment law judge, Rosemarie Strong testified that respondent was terminated because he hit his supervisor on the head with a large skid (i.e., pallet) and because he stole materials from relator approximately eight months earlier. She also testified that, eight months before respondent was terminated, he had brought a bag of marijuana to work. She claimed respondent admitted the marijuana was his, but he disputed the admission at the hearing.
Respondent’s supervisor testified that respondent was terminated because he failed to perform his job duties properly and was careless on the job. Specifically, the supervisor recounted the skid-unloading incident in which the supervisor was injured. That occurred the day before respondent received the termination letter. The supervisor testified that respondent intentionally threw the skid at him. But the supervisor did not hear respondent warn him that the skid was being unloaded or actually see respondent throw the skid.
The supervisor also testified that respondent failed to follow instructions, such as when he intentionally did not put away or unplug power tools, refused to clean wire when instructed to, and took scrap materials without permission and resold them. But the supervisor also acknowledged that he drove respondent home knowing that certain materials in the back of relator’s truck were materials that respondent had taken allegedly without permission.
At the hearing before the unemployment law judge, respondent denied all allegations and offered conflicting testimony. First, he denied intentionally hitting his supervisor with the skid. He testified that one of the skids he was unloading became caught on the truck and that he warned his supervisor to get out of the way when the skid fell, but the supervisor did not hear him. Respondent also stated that he never stole and resold scrap materials and that he always put away his tools. Finally, respondent’s father testified that his son, Eugene Strong, was a difficult person to work for who criticized the performance of most of his employees.
D E C I S I O N
When reviewing the Minnesota Department of Employment and Economic Development's determination about an employee's qualifications for unemployment benefits, this court reviews the commissioner's representative's findings rather than the unemployment law judge's findings. Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995). The reviewing court has a narrow standard of review that requires the court to view the commissioner's representative's findings in the light most favorable to the decision. Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002). This court will not disturb the commissioner’s representative’s findings if there is evidence that reasonably tends to sustain them. Id. And this court defers to the commissioner’s representative’s ability to weigh conflicting evidence. Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995).
The commissioner's representative's findings are a mixed question of law and facts. Colburn v. Pine Portage Madden Bros., Inc., 346 N.W.2d 159, 161 (Minn. 1984). The commissioner's representative determines the fact question of whether an employee committed the alleged acts of misconduct. Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997). And this court reviews de novo whether the employee's actions constituted employment misconduct and disqualified the employee from receiving unemployment benefits. Ress v. Abbott N.W. Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).
An employee is disqualified from receiving unemployment benefits if he was discharged for employment misconduct. Minn. Stat. § 268.095, subd. 4(1) (2002). Employment misconduct is
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)(1) (2002). Intentional misconduct is “deliberate” and “not accidental.” Houston v. Int'l Data Transfer Corp., 645 N.W.2d 144, 149 (Minn. 2002) (citations omitted).
In this case, it is undisputed that one of the skids that respondent was unloading from a truck became caught on the truck and hit respondent’s supervisor on the head. But the commissioner’s representative found that respondent did not intentionally hit his supervisor with the skid.
Because the record contains conflicting testimony regarding the skid-unloading incident, we defer to the commissioner’s representative’s ability to weigh such evidence. And in viewing the evidence in the light most favorable to the decision, we conclude that the record reasonably supports the commissioner’s representative’s finding that respondent did not intentionally throw the skid at his supervisor. Therefore, because respondent’s conduct was not intentional, this incident could not have led to a discharge for employment misconduct.
The commissioner’s representative also determined that there are no specific dates of alleged insubordination and that relator never gave respondent a warning that his job was in jeopardy. Because the record contains conflicting evidence regarding whether the alleged insubordination occurred, we defer to the commissioner’s representative’s determination regarding the alleged insubordinate acts. In viewing the evidence in the light most favorable to the decision, we conclude that the record reasonably supports the commissioner’s representative’s decision that relator terminated respondent’s employment for reasons other than employment misconduct. Accordingly, respondent is not disqualified from receiving unemployment benefits.