This opinion will be unpublished and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
Timothy F. McMullen,
Butler Trucking, Inc.,
Commissioner of Employment and Economic Development,
Filed June 1, 2004
Department of Employment and Economic Development
Agency File No. 9365 03
Beth E. Bertelson, Andrea R. Gesellchen, Bertelson Law Offices, P.A., 101 Union Plaza, 333 Washington Avenue North, Minneapolis, MN 55401 (for relator)
Lee B. Nelson, Linda A. Holmes, Department of Employment and Economic Development, 390 North Robert Street, St. Paul, MN 55101 (for respondent Commissioner of Employment and Economic Development)
Timothy F. McMullen, 407 West 158th Street, Burnsville, MN 55306 (respondent)
Considered and decided by Harten, Presiding Judge, Halbrooks, Judge, and Minge, Judge.
Relator employer challenges the decision by the commissioner’s representative (CR) that the employee was qualified for unemployment benefits, arguing that two of the CR’s factual findings are not supported by the record and that the employee’s actions constitute employment misconduct. Because the record supports the factual findings and the conclusion is not contrary to law, we affirm.
Michael and Becky Butler own relator Butler Trucking, Inc. Respondent Timothy McMullen began working for relator as a truck driver in May 2002. After a non-work-related injury, McMullen had surgery in December 2002 to repair a herniated disc in his back and took a medical leave. He returned to work for Butler Trucking on 9 April 2003.
On Monday, 21 April 2003, McMullen was scheduled as an on-call driver after 11:00 a.m. When McMullen had not called in by 11:00, Becky Butler called him to see if he was able to work. She testified that McMullen had always called in before any appointments and she was awaiting his call. McMullen testified that he was not required to call in when he was scheduled to be on call; rather, the dispatcher would contact him if relator needed him to work. Becky Butler asked McMullen whether he was going to work that day, and he replied that he was not scheduled to be on-call until after 11:00 a.m. The conversation became angry; both parties raised their voices. Becky Butler claimed that McMullen made “cat noises” at her during the conversation. McMullen denied making any noises, explaining that his TV was on and his cat was sitting next to him during the conversation. Eventually, Becky Butler told McMullen that he did not have to work that day and that they should discuss the issues after she was able to talk to Michael Butler.
McMullen phoned Michael Butler later that afternoon. McMullen testified that Michael Butler said that he would have to talk with Becky and would get back to McMullen later that evening. Becky Butler testified that McMullen was unavailable that evening.
The following morning, Becky Butler called McMullen. Becky Butler testified that both she and Michael Butler were on the phone, but McMullen testified that he was unaware that Michael Butler was on the line. Becky Butler asked McMullen how he thought the day before had gone, and McMullen stated that it went badly. At some point during the conversation, Becky Butler asked McMullen whether he made the cat noises at her. McMullen called Becky Butler a habitual liar. The conversation again escalated to yelling until Becky Butler hung up.
Later that day, Michael Butler called McMullen and told him that it was best to “part ways.” After McMullen asked him what that meant, Michael Butler discharged McMullen. Michael Butler explained that because dispatchers and drivers need to work closely together, any credibility issues between them might affect the level of service the company provides to its customers.
McMullen applied to the Department of Economic and Employment Development for unemployment benefits. A departmental adjudicator determined that McMullen was not discharged for employment misconduct and was entitled to benefits. Relator appealed, and an unemployment law judge reversed, finding that McMullen’s behavior amounted to employment misconduct. McMullen appealed; the CR reversed, finding that McMullen’s “simple unsatisfactory conduct,” when considered in context, was not employment misconduct. Relator challenges that determination.
On certiorari appeal, a reviewing court must examine the decision of the CR, rather than that of the unemployment law judge. Kalberg v. Park & Recreation Bd., 563 N.W.2d 275, 276 (Minn. App. 1997). Decisions of the commissioner’s representative are accorded “particular deference.” Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).
1. Factual Findings
Factual findings of the CR are reviewed in a light most favorable to the representative’s decision and will not be disturbed so long as the evidence reasonably tends to sustain the findings. Schmidgall v. Filmtec Corp., 644 N.W.2d 801, 804 (Minn. 2002).
Relator challenges the CR’s finding that both McMullen and Becky Butler “shared responsibility for the deterioration in their working relationship.” Relator relies on Becky Butler’s testimony that McMullen accused her of being a “habitual liar,” spoke with a “snotty attitude,” and made “cat noises” at her. But Becky Butler admitted that the 21 April conversation spun out of control when she and McMullen raised their voices to talk over each other; she also admitted that they yelled at each other during the 22 April conversation. McMullen was offended by Becky Butler’s antagonistic attitude and voice tone during the conversations. When parties present conflicting testimony, appellate courts defer to the credibility determinations of the CR. Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995). The record supports the CR’s finding that both parties contributed to the deterioration of the employment relationship.
Relator also challenges the CR’s finding that the “Butlers failed to follow through on their suggestion” to meet with McMullen on the evening of 21 April. Becky Butler testified that McMullen notified Michael Butler that he (McMullen) had plans at 6:00 p.m. that evening. But McMullen testified that Michael Butler had to work late and told McMullen that he would call back at 8:00 a.m. the following morning. See id. at 352 (deference to the commissioner’s representative’s credibility determinations). Therefore, the record reasonably supports this finding.
Whether an employee is disqualified for reasons of misconduct is a mixed question of fact and law. Colburn v. Pine Portage Madden Bros., 346 N.W.2d 159, 161 (Minn. 1984). A reviewing court will affirm so long the record supports the findings of fact and the conclusion on those facts is not contrary to the statutory mandate. Id. The ultimate determination that a particular act constitutes employment misconduct is a question of law that this court may review independently. Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996).
An employee discharged for misconduct is disqualified from receiving unemployment benefits. Minn. Stat. § 268.095, subd. 4 (2002). Misconduct must be shown by a preponderance of the evidence. Minn. Stat. § 268.03, subd. 2 (2002). At the time McMullen was discharged, employment misconduct was defined as:
(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). Misconduct does not include “inefficiency, inadvertence, simple unsatisfactory conduct, poor performance because of inability or incapacity, or absence because of illness or injury with proper notice to the employer.” Id., subd. 6(b). Relator claims that McMullen’s actions amounted to intentional misconduct.
Relator argues that McMullen’s actions were intentional and disregarded the standard of behavior that relator had the right to expect from employees. The CR found that “McMullen did make inappropriate comments to Becky Butler during their verbal confrontations,” including accusations that Becky Butler and the other dispatcher were lying to him. But Becky Butler admitted she was also yelling during the phone conversations; the context of McMullen’s comments reveals that he was not the only person behaving badly. In these circumstances, a factfinder could find to a preponderance of the evidence that McMullen’s actions do not rise to the level of misconduct.
Relator also argues that the CR erred by failing to take into account other instances of McMullen’s misconduct, referring to incidents where McMullen allegedly “was insubordinate, intentionally disobeyed direct orders, had difficulty getting along with coworkers, seemed unwilling to come into work, and bad-mouthed Butler Trucking to a client.” But Becky Butler testified that she and Michael Butler did not discover these incidents until after McMullen had been discharged. Moreover, both Michael and Becky Butler admitted that they had no previous problems with McMullen as an employee. Accordingly, the alleged incidents are not part of the case before us.
 The CR determined that McMullen did not commit misconduct under Minn. Stat. § 268.095, subd. 6(a) (2003). But relator does not request remand for the CR to apply the 2002 definition and argues that McMullen’s actions constitute misconduct under either standard.
 Relator relies primarily on unpublished opinions, which are not precedential. Minn. Stat. § 480A.08, subd. 3 (2002). Relator also relies on Tester v. Jefferson Lines, 358 N.W.2d 143 (Minn. App. 1984), review denied (Minn. 13 March 1985). But Tester is distinguishable because the employee’s obscene comment and act of blocking a bus occurred in the presence of other employees and interfered with the employer’s business activities. Tester, 358 N.W.2d at 145-46. McMullen’s inappropriate comments were part of a phone conversation that did not affect other employees or customers.