This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
Leroy R. Blanks,
Fairview Hospital & Healthcare,
Commissioner of Employment and Economic Development,
Department of Employment and Economic Development
File No. 980 03
Leroy R. Blanks, 1573 North Dale Street, St. Paul, MN 55117 (pro se relator)
Janet C. Ampe, Felhaber, Larson, Fenlon & Vogt, P.A., 220 South Sixth Street, Suite 2200, Minneapolis, MN 55402 (for respondent Fairview Hospital & Healthcare)
Lee B. Nelson, M. Kate Chaffee, Michael Redman, Department of Employment and Economic Security, 390 Robert Street North, St. Paul, MN 55101 (respondent Commissioner)
Considered and decided by Kalitowski, Presiding Judge; Toussaint, Chief Judge; and Wright, Judge.
The Department of Employment and Economic Development determined that Blanks was disqualified from receiving benefits because he was terminated for employment misconduct. Blanks appealed to an unemployment law judge. At the hearing before the unemployment law judge, Blanks testified that accounts of the altercation with his co-worker on December 5 had been exaggerated. Although he admitted demanding an apology during the incident, he denied yelling or swearing. Blanks testified that the other altercations had been mischaracterized. The unemployment law judge affirmed the department’s decision that Blanks committed employment misconduct. On appeal to the commissioner’s representative, the case was remanded to the unemployment law judge for additional evidence.
On remand, the unemployment law judge heard testimony from Blanks’s former co-worker, Cynthia Hawkins, and received additional exhibits relating to the decision to terminate Blanks. Hawkins testified that, during the portion of the December 5 altercation that she witnessed, the noses of the men were almost touching as they argued. But she could not hear what they were saying. Blanks offered a statement recounting his version of the December 5 incident that he gave to his supervisor on December 6.
The unemployment law judge reversed the department’s determination that Blanks was disqualified from receiving unemployment benefits, finding that Blanks credibly denied Fairview’s allegations of wrongdoing. Fairview appealed, and the commissioner’s representative reversed the unemployment law judge’s decision. Finding that Blanks’s denial of swearing at and bumping his co-workers was not credible, the commissioner’s representative concluded that the evidence established that Blanks was terminated for employment misconduct. This certiorari appeal followed.
An employee’s use of abusive and threatening language is disqualifying conduct. Ideker v. LaCrescent Nursing Ctr., Inc., 296 Minn. 240, 241, 207 N.W.2d 713, 714 (1973) (holding that an employee’s use of hostile and abusive language on two separate occasions warranted disqualification from unemployment benefits). An employee’s deliberate action in contravention of an employer’s warning also constitutes employment misconduct. Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 806 (Minn. 2002) (involving failure to report injury during same shift after having been counseled and given two written warnings by employer). Moreover, a pattern of failing to follow an employment policy demonstrates a substantial lack of concern for the employer’s interests. See Gilkeson v. Indus. Parts and Serv., Inc., 383 N.W.2d 448, 452 (Minn. App. 1986).
Fairview documented that Blanks was involved in at least five altercations, all of which involved Blanks using verbally abusive behavior toward co-workers and at least three of which involved Blanks physically “bumping” co-workers with his chest or shoulder. The record clearly establishes that Blanks was aware that Fairview had a policy against disruptive and harassing conduct in the work place, he was given at least two oral and two written warnings against engaging in this type of behavior, and he engaged in verbally and physically abusive behavior with a co-worker on December 5, in contravention of Fairview’s policy and prior warnings.
Thus, we conclude that the commissioner’s representative did not err in concluding that Blanks was terminated for employment misconduct.