This opinion will be unpublished and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

A04-580

 

 

Mazen M. Abdel-Ghani,

Relator,

 

vs.

 

Walser Burnsville Mazda,

Respondent,

 

Commissioner of Employment and Economic Development,

Respondent.

 

Filed December 21, 2004

Affirmed

Robert H. Schumacher, Judge

 

Department of Employment and Economic Development

File No. 19237 03

 

Jordan S. Kushner, Law Office of Jordan S. Kushner, 636 Sexton Building, 529 South Seventh Street, Minneapolis, MN 55415 (for relator)

 

Walser Burnsville Mazda, 14720 Buck Hill Road, Burnsville, MN 55306 (respondent)

 

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 Kalitowski, Presiding Judge; Schumacher, Judge; and Crippen, Judge.*

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

ROBERT H. SCHUMACHER, Judge

Relator Mazen M. Abdel-Ghani challenges the decision of the Commissioner of Employment and Economic Development that he was discharged for employment misconduct and disqualified from receiving benefits. He argues there is insufficient evidence that he was discharged for employment misconduct, that the commissioner's representative erred in not addressing his claim of retaliation, and that he was denied a fair hearing because Paul Walser (Walser), owner of respondent Walser Burnsville Mazda (Walser Mazda), did not attend his hearing despite being subpoenaed. We affirm.

FACTS

It is uncontested that Abdel-Ghani began working for Walser Mazda in January 2002 as a sales consultant and he was discharged from employment on October 30, 2003. Abdel-Ghani applied for unemployment benefits stating he was discharged because of his race and as retaliation for a report he submitted to Walser in which he called Jack Lucking, the general manager, "crazy." Walser Mazda maintains that Abdel-Ghani was discharged for behavior that was "detrimental to ongoing business" and his refusal to attend anger management classes, which he had been told was a requirement of continued employment.

The Department initially denied Abdel-Ghani benefits. The unemployment law judge then determined that Abdel-Ghani had been terminated for employment misconduct and affirmed the denial of benefits. The commissioner's representative also determined Abdel-Ghani was discharged for employment misconduct and affirmed the denial of benefits.

Lucking testified before the unemployment law judge that he received two complaints from female employees that Abdel-Ghani had called each women a "f---ing bitch"; another employee reported that Abdel-Ghani had called him a "fag"; and Walser Mazda's receptionist reported that Abdel-Ghani had made inappropriate comments about her "upper body." Lucking testified that he received a phone call from a customer who played over the phone a recording in which Abdel-Ghani called the customer "a f---er" for choosing to buy a car elsewhere and he testified to an occasion when "[Abdel-Ghani] went to greet the customer, must have heard the last name, that he was Jewish, and pulled his hand back, would not shake the customer's hand."

Lucking testified that as a result of these outbursts, he and three other managers met with Abdel-Ghani. At the meeting, management told Abdel-Ghani that "we wanted him to go through the anger management class, we though it would help him, the store was going to pay for it. We gave him [from] August 2 through October 30 to attend that class. He never went." Lucking also testified to an incident occurring shortly before October 30 that was "the straw that broke the camel's back." Lucking testified, "[Abdel-Ghani] had an argument with Mark Johnson. Mark Johnson is my . . . lot supervisor, at work. I wasn't . . . there on the day it happened, but him and Mark got into a yelling contest on the show floor because [Abdel-Ghani] called Mark's girlfriend a man, that [she] looked like a man." Lucking testified that he had a meeting with the two employees and both men apologized, but immediately after the meeting Abdel-Ghani again began to harass Johnson.

D E C I S I O N

On certiorari 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 factual findings are reviewed in the light most favorable to the commissioner's decision and will not be disturbed "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).

1. Abdel-Ghani argues Walser Mazda failed to present sufficient evidence showing that he was discharged for employment misconduct. The commissioner's determination of whether an employee is disqualified for reasons of misconduct is a mixed question of fact and law. Id. 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). Whether a particular act constitutes disqualifying misconduct is a question of law, which this court reviews de novo. Schmidgall, 644 N.W.2d at 804.

Here, the commissioner's representative found "Abdel-Ghani was discharged for failing to attend the anger management classes and continuing inappropriate behavior." Lucking's testimony reasonably tends to support the commissioner's representative's finding.


Abdel-Ghani raises for the first time on appeal that Lucking's testimony is not sufficiently reliable hearsay evidence. See Minn. R. 3310.2922 (2003) (stating commissioner's representative may rely on hearsay evidence, "if it is the type of evidence on which reasonable, prudent person are accustomed to rely in the conduct of their serious affairs"). We deem the issue to be waived. See Imprint Techs., Inc. v. Comm'r of Econ. Sec., 535 N.W.2d 372, 378 (Minn. App. 1995) (stating that issues not raised below may not be raised for the first time on appeal).

We next consider whether the particular acts constitute employment misconduct as a matter of law. See Schmidgall, 644 N.W.2d at 804. Employment misconduct is "any intentional, negligent, or indifferent conduct, on the job or off the job (1) that evinces a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee, or (2) that demonstrates a substantial lack of concern for the employment." Minn. Stat. 268.095, subd. 6(a) (Supp. 2003). An employee's refusal to follow his employer's request that is reasonable and does not impose an unreasonable burden on the employee, constitutes employment misconduct. Vargas v. Northwest Area Found., 673 N.W.2d 200, 206 (Minn. App. 2004), review denied (Minn. Mar. 30, 2004). Walser Mazda's request that Abdel-Ghani attend anger management class at Walser Mazda's expense was reasonable and did not impose an unreasonable burden on Abdel-Ghani. We conclude his failure to attend anger management class constitutes employment misconduct.

2. Abdel-Ghani argues that the commissioner's representative erred by failing to address his claim of retaliation or discrimination. From the time Abdel-Ghani filed his application for benefits, he has argued that he was discharged either as retaliation for his comment in the survey he submitted to Walser that Lucking was "crazy" or because of racial animus. Walser Mazda has argued Abdel-Ghani was discharged for continuing inappropriate conduct and his refusal to attend anger management classes. The commissioner's representative was required to find which of the two conflicting reasons was the basis for Abdel-Ghani's discharge and this court defers to the commissioner's representative's credibility determination. Jenson v. Dept. of Eco. Sec., 617 N.W.2d 627, 631 (Minn. App. 2000), review denied (Minn. Dec. 20, 2000). The commissioner's representative found Abdel-Ghani was discharged for employment misconduct and therefore his discharge was neither retaliation for his criticism of Lucking nor caused by racial animus.

3. Abdel-Ghani also argues he was denied a fair trial because the commissioner's representative failed to enforce a subpoena he claimed was served on Walser.[1] Parties are required to comply with subpoenas issued by the Department of Employment and Economic Development. Ntamere v. DecisionOne Corp., 673 N.W.2d 179, 182 (Minn. App. 2003). If party fails to attend a hearing without a legally sufficient reason, this court must determine whether the relator's inability to obtain the subpoenaed witness's testimony "constituted a procedural defect so significant that [the] case should be remanded to provide a full and fair hearing and to develop a complete record." Id. at 181 (quotation omitted).


Here, Abdel-Ghani questioned why Walser was not present even though "he was subpoenaed." The record shows that Abdel-Ghani wished to have Walser testify that Lucking saw the survey that Abdel-Ghani submitted to Walser in which Abdel-Ghani criticized Lucking. But Lucking admitted during the hearing that he saw the survey and saw that Abdel-Ghani had called him "crazy." Because Walser was subpoenaed to testify to uncontested facts, his failure to attend the hearing did not deny Abdel-Ghani a full and fair hearing.

Affirmed.



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

[1] We note that the record indicates a witness at the hearing testified Walser was out of the country.