This opinion will be unpublished and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

A03-1682

 

Timothy W. Butler,

Respondent,

 

vs.

 

Butler Trucking, Inc.,

Relator,

 

Commissioner of Employment and Economic Development,

Respondent.

 

Filed June 8, 2004

Affirmed

Robert H. Schumacher, Judge

 

Department of Employment and Economic Development

File No. 851903

 

Timothy W. Butler, 1770 Bryant Avenue South, Apartment 107, Minneapolis, MN 55403-3138 (pro se respondent)

 

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)

 

Considered and decided by Schumacher, Presiding Judge; Stoneburner, Judge; and Parker, Judge.*

U N P U B L I S H E D O P I N I O N

ROBERT H. SCHUMACHER, Judge

Relator Butler Trucking, Inc. appeals from the final decision of respondent Commissioner of Employment and Economic Development, finding respondent Timothy W. Butler was entitled to unemployment benefits. Butler Trucking argues the factual findings of the commissioner's representative are not supported by the record and the commissioner's representative erred in finding T. Butler had not committed employment misconduct. We affirm.

FACTS

T. Butler worked for Butler Trucking from September 2001 until April 2003. T. Butler's brother, Michael Butler, is the president of Butler Trucking and Becky Butler, Michael Butler's wife, is the vice-president.

The day of his discharge, T. Butler was "on-call." His brother called and left a message on T. Butler's answering machine that he was needed at work and he should call. T. Butler testified he only received a message that he should call his brother. When T. Butler returned the call, they talked about how busy the day had become. T. Butler testified that he did not understand from this conversation that he was to come in to work. Approximately an hour and a half later, Becky Butler called T. Butler and asked why he was not at work. The conversation became heated and both parties raised their voices. Nonetheless, T. Butler reported to work approximately one-half an hour later.

When T. Butler arrived at work, he had a conversation with his brother. Michael Butler told him that he could not yell at his sister-in-law after all the couple had done for him. At the end of this conversation, his brother discharged T. Butler from Butler Trucking.

T. Butler established a benefits account with the Minnesota Department of Employment and Economic Development. A department adjudicator initially determined he was not entitled to receive benefits. He appealed the decision, and an unemployment law judge determined he had been discharged for reasons other than employment misconduct and was entitled to benefits. Butler Trucking appealed the decision. The commissioner's representative also concluded that T. Butler was entitled to receive unemployment benefits.

D E C I S I O N

On appeal, this court reviews the decision of the commissioner's representative, not the decision of the unemployment law judge, even when the findings involve determination of witness credibility, and the commissioner's decision is afforded "particular deference." Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995). The commissioner's determination of whether an employee is disqualified for reasons of misconduct is a mixed question of fact and law. Schmidgall v. Filmtec Corp., 644 N.W.2d 801, 804 (Minn. 2002).

A commissioner's representative's determination regarding the reason for an employee's separation is a factual determination. Embaby v. Dep't of Jobs & Training, 397 N.W.2d 609, 611 (Minn. App. 1986). The commissioner's representative's factual findings are reviewed in the light most favorable to the decision and will not be disturbed "as long as there is evidence that reasonably tends to sustain those findings." Schmidgall, 644 N.W.2d at 804.

The commissioner's representative determined T. Butler was discharged from employment "for yelling at the vice-president." His brother testified: "The final straw for me was I'm not going to let [T. Butler] yell at my wife and the mother of my children" and that yelling at Becky Butler "was the only reason" for T. Butler's discharge stated on the day of his termination. Because the record supports the commissioner's representative's determination regarding the reason T. Butler was discharged, we will not disturb this finding. See Schmidgall, 644 N.W.2d at 804.

"Whether a particular act constitutes disqualifying misconduct is a question of law, which this court reviews de novo." Id. Misconduct must be shown by a preponderance of the evidence. Minn. Stat.  268.03, subd. 2 (2002).

In some situations, yelling at a supervisor might constitute employment misconduct. See, e.g., Tester v. Jefferson Lines, 358 N.W.2d 143 (Minn. App. 1984) (mechanic yelled profanity at supervisor during strike), review denied (Minn. Mar. 13, 1985). But here, the commissioner's representative found that the conversation leading to T. Butler's discharge began when his sister-in-law "called [him] and yelled at him over the phone because he hadn't reported to work yet" and he "raised his voice" during this conversation. See In re Welfare of M.D.O., 462 N.W.2d 370, 374-75 (Minn. 1990) (stating role of this court does not include finding facts). On this record, we cannot conclude that the commissioner's representative erred as a matter of law in determining that T. Butler did not commit employment misconduct. See Minn. Stat.  268.03, subd. 2.

Affirmed.



* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, 10.