This opinion will be unpublished and

may not be cited except as provided by

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






Douglas W. Hertling,





Anderson Trucking Services, Inc.,



Commissioner of Employment and Economic Development,



Filed ­­­March 16, 2004


Harten, Judge


Department of Employment and Economic Development

File No. 3081 03


John A. Stielow, 921 First Street North, Suite 100, St. Cloud, MN 56303 (for relator)


Lee B. Nelson, Philip B. Byrne, 390 North Robert Street, St. Paul, MN 55101 (for Department of Employment and Economic Development)


Anderson Trucking Service, Inc., 203 Cooper Avenue, Box 1377, St. Cloud, MN 56302 (respondent)


            Considered and decided by Randall, Presiding Judge, Klaphake, Judge, and Harten, Judge.

U N P U B L I S H E D   O P I N I O N




Relator challenges the finding of the commissioner’s representative that relator was discharged for misconduct.  Because the finding is supported by the evidence, we affirm.


In 1998, relator Douglas Hertling was employed by respondent Anderson Trucking Service, Inc. as a parts clerk.  In 2001, relator received a written warning and was told to attend a counseling session after he used loud, vulgar language and broke a light pipe bar while operating company equipment.  His performance evaluation in 2002 rated him as unsatisfactory in attitude and in dealing with people.

In January 2003, relator slammed and kicked a photocopier.  Two days later, he used loud, vulgar language and slammed a computer.  When he was told to stop this behavior, he left work.  He was discharged for inappropriate language and behavior in the workplace.

The Department of Employment and Economic Development adjudicator determined that relator was discharged for misconduct and is disqualified from receiving benefits.  He appealed.  Following a telephone hearing, the unemployment law judge (ULJ) reversed that determination, finding that relator was discharged for reasons other than misconduct.

Respondent appealed.  The commissioner’s representative reversed the ULJ’s determination and found that relator was discharged for misconduct.  Relator appeals, arguing that the commissioner’s representative’s finding was not supported by the evidence and that the conclusion that relator was discharged for misconduct is contrary to law. 



The commissioner’s representative’s determination that an employee is disqualified for reasons of misconduct is a mixed question of fact and law.  Colburn v. Pine Portage Madden Bros., Inc., 346 N.W.2d 159, 161 (Minn. 1984).  A reviewing court will affirm if the findings of fact are supported by the evidence and the conclusion based on those facts is not contrary to the statute.  Id.

1.         Findings

            The commissioner’s representative found that:

            [Relator] had a history of engaging in disruptive behavior in the workplace.  He had temper tantrums at which times he used vulgar language and abused [respondent’s] equipment.  On January 30, 2001, [relator] received a final written warning for such behavior and was required to use the employee assistance program for counseling for stress/rage management.  [Relator] was put on notice that if he did not correct his behavior, he would be terminated.


The record supports this finding: it contains the final written warning, on which the word “Final” is circled.  Moreover, relator testified that he “said some bad words,” and he answered “yes” to the question, “[W]as it made clear to you that use of swearing on the workplace was not going to be allowed?”

The commissioner’s representative also found that

                        [o]n several occasions, management counseled [relator] because of his negative attitude.  In the summer of 2002, [relator] received a performance evaluation, at which time his supervisor gave him unsatisfactory ratings with respect to his attitude and his effectiveness in dealing with people.  The supervisor pointed out to [relator] that his attitude needed a lot of improvement and that he frequently irritated co-workers, management, and outsiders because he came across as being “very nasty.”


Again, the performance evaluation is in the record and supports the finding.  Relator argues that the performance review had nothing to do with his termination because he used bad language to and struck machines, not people.  However, relator was told that he “[came] on as being nasty when you talk to others by phone or in person.  Very nasty with . . . some people downtown.”  Respondent testified that “[w]e were concerned that [relator] would hurt himself or others during outbursts.”  The fact that relator had two outbursts close together two years after receiving a final warning and six months after being told of the need for improvement in his attitude and his dealings with others was one factor in his discharge.  This finding is supported by the evidence.

            The commissioner’s representative also found that

            [o]n January 27, 2003, [relator] had problems with paper jams in the company copy machine.  [Relator] became frustrated.  He kicked the bottom drawer of the copy machine to close it and slammed the doors shut.  . . . [Another employee] told [relator] that most of the problems with the copy machine were attributable to abuse and that it had to stop.


            The other employee testified during the hearing; his testimony supports the finding. Relator testified he did not recall the incident.  The commissioner’s representative said that she “found the testimony and evidence presented by [respondent] to be more credible than [relator’s] testimony and evidence to the contrary.”[1]  “When the parties have presented conflicting evidence on the record, this court must defer to the commissioner’s ability to weigh the evidence; we may not weigh that evidence on review.”  Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995). 

            Finally, the commissioner’s representative found that

            [o]n January 29, 2003, [relator] had problems with a company computer and printer.  [Relator] lost his temper.  He complained about the equipment in a loud tone of voice, using vulgar language in the process.  Other employees were present at the time . . . . [Relator] hit the side of the computer monitor.  He went to the printer, picked up the modem, pulled out [the] cable, and slammed it down.


The testimony of an employee who was present supports this, and relator himself testified that he used vulgar language and “tapped” the side of his computer. 

            Evidence supports the findings of fact.

2.         Conclusions

            Relator argues that, because his actions were unintentional, they were not misconduct.  The relevant statutory definition of misconduct is

            (1) any intentional conduct . . . 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 . . . that demonstrates a substantial lack of concern for the employment.


Minn. Stat. § 268.095, subd. 6 (2002).[2]  The commissioner’s representative concluded that relator’s behavior was “intentional, not accidental” and constituted “an intentional disregard of both the standards of behavior that [respondent] had a right to expect and an
intentional disregard of his duties and obligations to [respondent].  At the very least, [relator’s] conduct was so negligent or indifferent that it demonstrated a substantial lack of concern for the employment.”  Even assuming, as relator claims, that his conduct was unintentional, it demonstrated a substantial lack of concern for his employment.  He had received a final warning that obscene language and acts of violence were not acceptable and would lead to termination.  He nevertheless repeated his use of obscene language and his violent acts on his employer’s equipment.  His conduct met at least one of the two aforesaid statutory criteria for misconduct.[3]           

            The commissioner’s representative’s findings are supported by the evidence and her conclusion does not violate the statute.



[1] Relator claims this finding as to credibility is an issue in his statement of the case, but he does not argue it.  Issues not briefed on appeal are waived.  Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn. 1982).

[2] The definition was amended as of 1 August 2003, but the amended version postdates both relator’s actions and the commissioner’s representative’s decision.

[3]Relator also argues that he is entitled to the isolated “hotheaded” incident exception.  But this court “[is] 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) (noting that the legislature omitted “hotheaded instances” from its list of exceptions to misconduct), review denied (Minn. 20 Apr. 1999).