This opinion will be unpublished and

may not be cited except as provided by

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








Patrick W. Hoffman,





New Flyer USA Inc.,



Commissioner of Employment and Economic Development,




Filed July 27, 2004


Randall, Judge


Department of Employment and Economic Security

File No. 7513 03



Patrick W. Hoffman, 37882 186th Avenue, Avon, MN  56310-8704 (pro se relator)


New Flyer USA Inc., 6200 Glenn Carlson Drive, St. Cloud, MN  56301-8852 (respondent)


Lee B. Nelson, Linda A. Holmes, Department of Employment and Economic Security, 390 North Robert Street, St. Paul, MN  55101 (for respondent commissioner)


            Considered and decided by Kalitowski, Presiding Judge; Randall, Judge; and Wright, Judge.


U N P U B L I S H E D   O P I N I O N


            Relator Patrick Hoffman challenges the decision by the commissioner’s representative that he was discharged for employment misconduct and disqualified from receiving unemployment benefits, contending that the findings that he engaged in harassing behavior are not supported by the record, and that his conduct did not rise to intentional misconduct.  We affirm.


            Hoffman was employed as an assembly technician by respondent New Flyer USA Inc.  The company had a workplace-harassment policy.  Hoffman received training regarding the policy and was aware of it.  From April 2002 through March 26, 2003, he was involved in a number of incidents in which he allegedly engaged in harassment.

            On March 26, the employer met with Hoffman and sent him home for the day because of his continued pattern of disrespectful behavior.  The employer intended to review his employment history to determine the appropriate course of action to take.  Per company policy, Huffman was escorted out of the plant by a supervisor, as well as a union steward.  When he walked back to his workstation to pick up some items, he turned around to his supervisor, held up his index finger and thumb about an inch apart, close to the supervisor, and said that he was “this close.”  On March 27, 2003, his employer discharged him because of his repetitive pattern of abusive, disruptive, disrespectful, and harassing behavior.

            Hoffman applied for unemployment benefits, and the department initially denied his application.  After a hearing, the ULJ reversed.  Upon further review, the commissioner’s representative determined that Huffman he had been discharged for employment misconduct and was disqualified from receiving benefits.



            An appellate court will “review the commissioner’s factual findings in the light most favorable to the commissioner’s decision and will not disturb them as long as there is evidence that reasonably tends to sustain those findings.”  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  “Whether a particular act constitutes disqualifying misconduct is a question of law,” which an appellate court reviews de novo.  Id.  “Whether an employee engaged in conduct that disqualifies the employee from unemployment benefits is a mixed question of fact and law.”  Id.

            The commissioner’s representative made a number of findings of fact regarding incidents in which Hoffman was alleged to have engaged in harassing behavior.  Hoffman challenges most of these findings, asserting either that the findings were not true or that his conduct did not constitute harassment.  The commissioner, in his brief, acknowledges that some of the incidents that led to Hoffman’s original warning in June 2002 were misconstrued by others and that other incidents were less serious than they appeared.  The commissioner asserts that, nonetheless, several of the findings are supported by the record and show that Hoffman engaged in intentional misconduct.

            Hoffman challenges these findings.  At a minimum, the record supports the finding that on May 9, 2002, after a coworker elbowed Hoffman, he challenged the coworker to a fight.  It also supports the finding that Hoffman was involved in an April 2002 “road-rage” incident with another coworker.  The record shows management staff did conclude that incident arose from a misunderstanding, and after Huffman and his coworker apologized to each other, management did not consider the incident formal harassment.

            On June 21, 2002, the employer gave Hoffman a warning outlining five separate incidents, including the May 9, 2002, incident and the April 2002 road-rage incident.  The employer warned that these actions interfered with work performance and created “an intimidating, hostile, or offensive work environment.  This type of behavior needs to stop immediately.”  Hoffman agreed that he would not engage in similar conduct with anyone else in the workplace.  He was warned that failure to follow this agreement would result in discipline, including the possibility of termination, and he signed the warning.

            Several incidents occurred on March 26, 2003, that led to Hoffman’s discharge.  The commissioner’s representative found that on that day, Hoffman went to a workstation and started staring at his supervisor deliberately to aggravate the supervisor.  While Hoffman denies doing so, there is evidence to support the commissioner’s findings.

            The commissioner’s representative also found that later that same day, the employer met with Hoffman and sent him home because of his continued pattern of disrespectful conduct, intending to review his employment history to determine the appropriate course of action to take.  Pursuant to company policy, he was escorted from the plant by a supervisor and union steward.  The representative found that while being escorted back to his workstation to get some items, Hoffman turned to his supervisor, holding his index finger and thumb about an inch apart and, while close to his supervisor, said he was “this close.”  Hoffman’s testimony is confusing as to what he did or did not say, but he argues that he meant he was “this close” to having an emotional breakdown and that he did not intend to intimidate his supervisor.  The commissioner’s representative found he intended to intimidate his supervisor.

            Hoffman explained that he was loud at work and that he liked to have fun.  He denied engaging in actions that would intimidate others and asserts that there were no grounds for his termination.  He further explained that he was feeling a lot of stress on the job, primarily from one of his supervisors, and that he saw a psychiatrist from the employee-assistance program in mid-March for help.  He testified that he had asked for a transfer but asserts that he was terminated instead.

            The commissioner’s representative was faced with conflicting versions of the events at issue.  The representative determined that Hoffman had engaged in intimidating behavior.  This finding is supported by the evidence.


            The next question is whether the findings made by the commissioner’s representative support the determination of misconduct.  An employee who is discharged from employment for misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4 (2002).  Employment misconduct is defined to include “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.”  Id., subd. 6(a)(1) (2002).[1]  Under the statutory definition of misconduct under Minn. Stat. § 268.095, subd. 6(a)(1), as interpreted by the supreme court, “for an employee’s conduct to constitute employment misconduct, that conduct must (1) be intentional and (2) disregard standards of behavior the employer has a right to expect or the employee’s duties and obligations to the employer.”  Houston v. Int’l Data Transfer Corp., 645 N.W.2d 144, 149 (Minn. 2002).

            The first prong requires that the acts be deliberate and not accidental.  Id.  Although Hoffman argues that he had not intended to intimidate or aggravate co-workers, the employer presented evidence to the contrary, and the commissioner’s representative found in favor of the employer.

            The second prong requires that “there must be a sufficient showing in the record that the employee . . . intended to, or engaged in conduct that evinced an intent to, ignore or pay no attention to his or her duties and obligations or the standards of behavior the employer has a right to expect.”  Id. at 150.  “As a general rule, refusing to abide by an employer’s reasonable policies and requests amounts to disqualifying misconduct.”  Schmidgall, 644 N.W.2d at 804.  Misconduct has been found when an employee became “aggressive and offensive with customers.”  Pitzel v. Packaged Furniture & Carpet, 362 N.W.2d 357, 357-58 (Minn. App. 1985).

            The commissioner’s representative found that Hoffman had engaged in several acts of intimidation, despite warnings, including the last incident in which the supervisor felt Hoffman was threatening him as he walked Hoffman out of the plant.  The commissioner found that “Mr. Hoffman’s actions were intended to intimidate his supervisor and suggest possible violence.”  Because “the employer has the right to reasonably expect that its employees will not engage in disruptive and intimidating behavior directed to coworkers and supervisors,” the commissioner’s representative determined Hoffman engaged in employment misconduct and was disqualified from receiving unemployment benefits.  The representative properly applied the law to the facts as found, and the decision is affirmed.



[1]  The legislature amended this definition of misconduct effective August 1, 2003.  2003 Minn. Laws 1st Spec. Sess. ch. 3, art. 2, § 13; see also Minn. Stat. § 645.02 (2002) (providing that unless otherwise specified, laws are effective August 1 of the year enacted).  Because relator was discharged in March 2003, the 2002 version of the law applies.  See Bray v. Dogs & Cats Ltd., 479 N.W.2d 182, 186 (Minn. App. 2004).