may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
Commissioner of Employment and
Department of Employment and Economic Development
File No. 1576702
Joseph Goodwin, P.O. Box 75392, St. Paul, MN 55101 (pro se relator)
Slumberland, Inc., Little Canada Location, 3060 Centerville Road, Little Canada, Minnesota 55117-1105 (respondent-employer)
Lee B. Nelson, Philip B. Byrne, Minnesota Department of Employment and Economic Development, 390 Robert Street North, St. Paul, MN 55101 (for respondent-Commissioner of Employment and Economic Development)
Considered and decided by Harten, Presiding Judge; Peterson, Judge; and Hudson, Judge.
U N P U B L I S H E D O P I N I O N
Relator Joseph Goodwin appeals the determination by respondent Commissioner of Employment and Economic Development that he is disqualified from receiving unemployment benefits because he was discharged for employment misconduct. We affirm.
Relator worked for respondent Slumberland, Inc. as a home-delivery assistant. Shortly after he was hired, relator signed a statement that he had received a copy of the employer’s handbook, which describes conduct that “may be cause for disciplinary action ranging from verbal reprimand to written warning, or to discharge.” This conduct includes “[p]ractical jokes or horseplay, scuffling or littering on company property.” The handbook states that the “company shall have the right to immediately discharge any employee without warning if the cause for such discharge is . . . willful disregard of established rules.”
Following an investigation of an incident that occurred on the employer’s premises on June 22, 2002, relator was discharged for misconduct. The Minnesota Department of Economic Security initially determined that relator was not disqualified from receiving unemployment benefits. Slumberland appealed, and a hearing was held before an unemployment law judge.
Terry Olson, the home-delivery manager, and Kriss Schmidt, a human-resource generalist, testified for Slumberland. Schmidt testified that the sole reason relator was discharged was for engaging in a fight on company property, which was against company policy. She testified that on the morning of July 22, relator and another employee, Carl Edwards, became involved in a heated verbal exchange in the warehouse. Relator believed that Edwards had been defacing his personal vehicle. A supervisor approached them, and they dispersed. Later that morning, relator and Edwards confronted each other again in the parking lot. The confrontation escalated, and the two swung at each other, but neither made physical contact with the other. Another employee, Dan Pierce, stepped between them and broke up the fight. According to both Pierce’s and Edward’s statements, relator then reached down and picked up a handful of rocks. After Pierce told him that he would file a charge against him if he threw the rocks, relator dropped the rocks on the ground. Relator contacted the police to report the alleged assault. After Slumberland conducted an investigation, it discharged relator and Edwards.
Relator testified that over a period of nine months he had complained to Olson and other managers at the company that he believed that Edwards had been spitting on, scratching, and damaging the windshield of relator’s personal vehicle. Because he could not get satisfaction from management, he confronted Edwards in the warehouse. Edwards denied defacing relator’s vehicle. Relator testified that Edwards later approached him in the parking lot, cursing that he had not touched relator’s vehicle. Relator told him that if that was the case, he had nothing to worry about and walked away. Relator, testified that Edwards approached him again and “got in my face,” and when he told Edwards that he was going to let the authorities handle it, Edwards swung at him. Relator testified that he only swung back at Edwards in self-defense, and, after Pierce stepped in, he went inside the warehouse and phoned the police. Relator also testified that he did not actually pick up any rocks, that he only faked doing so.
Relator asserted that Slumberland inconsistently applied its zero-tolerance policy because other employees who had been in fights had not been discharged. Relator testified that Olson told him that if he (relator) had not gotten human resources and the police involved, he would have kept his job. Relator also testified that it was his belief that Slumberland was contesting his initial determination of nondisqualification because he filed a discrimination complaint against Slumberland with the Minnesota Department of Human Rights.
The unemployment law judge reversed the department’s determination of nondisqualification and found that relator was discharged because of employment misconduct for disregarding Slumberland’s reasonable expectation that its employees not engage in verbal or physical confrontations on the employer’s premises. Relator appealed, and the commissioner’s representative affirmed the unemployment law judge’s decision.
An employee discharged for employment misconduct is disqualified from receiving unemployment benefits. Minn. Stat. § 268.095, subd. 4(1) (2002). Whether an employee has committed employment misconduct presents a mixed question of fact and law. 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). The factual findings of the commissioner’s representative are “viewed in the light most favorable to the decision, and if there is evidence reasonably tending to sustain them, they will not be disturbed.” White v. Metro. Med. Ctr., 332 N.W.2d 25, 26 (Minn. 1983). This court reviews de novo whether the employee’s actions constituted employment misconduct that disqualifies the employee from receiving unemployment benefits. Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989). The court does not determine whether the employee should have been terminated, but whether the employee should receive unemployment- compensation benefits. Id.
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). To be intentional, the conduct must be deliberate and not accidental. Houston v. Int’l Data Transfer Corp., 645 N.W.2d 144, 149 (Minn. 2002). There must also be a showing that the employee intended to violate the standards of behavior the employer has a right to expect. Id. at 150. “A single incident can constitute misconduct when an employee deliberately chooses a course of conduct that is adverse to the employer.” Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 806 (Minn. 2002).
As a general rule, an employee’s “knowing violation of an employer’s policies, rules, or reasonable requests constitutes misconduct.” Montgomery v. F & M Marquette Nat’l Bank, 384 N.W.2d 602, 604 (Minn. App. 1986), review denied (Minn. June 13, 1986). Where witness credibility and conflicting evidence are at issue, this court defers to the commissioner’s representative’s ability to weigh evidence and make those determinations. Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995).
An applicant’s entitlement to unemployment benefits shall be determined based upon that information available without regard to any common law burden of proof, and any agreement between an applicant and an employer shall not be binding on the commissioner in determining an applicant’s entitlement. There shall be no presumption of entitlement or nonentitlement to unemployment benefits.
Minn. Stat. § 268.069, subd. 2 (2002). But, all issues of fact “shall be determined by a preponderance of the evidence,” which means “evidence in substantiation of a fact that, when weighed against the evidence opposing the fact, is more convincing and has a greater probability of truth.” Minn. Stat. § 268.03, subd. 2 (2002).
The commissioner’s representative found that relator engaged in a verbal and an attempted physical altercation with Edwards while on company property. The record supports the commissioner’s representative’s finding.
“An employer has a right to expect employees not to physically fight at work.” Hines v. Sheraton Ritz Hotel, 349 N.W.2d 329, 330 (Minn. App. 1984). Such behavior interferes with the normal operations of a business and therefore constitutes misconduct. Shell v. Host Int’l, 513 N.W.2d 15, 17 (Minn. App. 1994). Violating an employer’s policy also constitutes misconduct. Sivertson v. Sims Sec., Inc., 390 N.W.2d 868, 871 (Minn. App. 1986), review denied (Minn. Aug. 20, 1986). Slumberland had a policy that “scuffling” on company property could result in discharge. Even if Edwards was the instigator, his violation of Slumberland’s rules does not excuse relator’s violations. See Dean v. Allied Aviation Fueling Co., 381 N.W.2d 80, 83 (Minn. App. 1986) (“Violation of an employer’s rules by other employees is not a valid defense to a claim of misconduct.”), review denied (Minn. Aug. 20, 1986).
The record demonstrates that (1) relator instigated the initial verbal altercation in the warehouse; (2) relator was aware of Slumberland’s policy that employees may be discharged for engaging in “scuffling” on company property; and (3) rather than walking away, relator continued to argue with Edwards in the parking lot until punches were thrown and relator and Edwards were physically separated by another employee. These facts indicate that relator did not act in self-defense, and his conduct was within the statutory definition of misconduct.
Relator contends that Slumberland has not discharged white employees for fighting on its property and argues that Slumberland discriminated against him because he is black. But an employer’s selective enforcement of its own rules is not an excuse for an employee’s violation of the rules. Sivertson, 390 N.W.2d at 871. Furthermore, the statutory jurisdiction of the department of employment and economic security does not extend to Human Rights Act injuries. Clapper v. Budget Oil Co., 437 N.W.2d 722, 726 (Minn. App. 1989), review denied (Minn. June 9, 1989). The only issue with respect to unemployment compensation is whether relator’s actions constituted misconduct. As we have already stated, relator’s actions constituted misconduct. We express no opinion with respect to relator’s discrimination claim.
Finally, relator asks this court to continue the proceeding; to issue subpoenas to current and former Slumberland employees; and to receive evidence of other employee’s statements and a letter he received from the president of Slumberland. “The function of this court is to correct errors,” not to try cases anew. Clapper, 437 N.W.2d at 727; see also Minn. Stat. § 480A.06 (2002) (defining this court’s jurisdiction). Therefore, we will not continue the proceeding to allow relator to present additional evidence.
 Schmidt testified that Slumberland’s policy is that it is not responsible for damage to personal vehicles parked in the lot. However, she also testified that she looked into relator’s complaints and, at one point, examined his windshield, but she could not see any obvious damage.