This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
Extendicare Homes, Inc.,
Commissioner of Employment and Economic Development,
Filed February 8, 2005
Department of Employment and Economic Development
File No. 20210 03
Mustapha Sheriff, 1915 Clinton Avenue South, Apartment 211, Minneapolis, MN 55404 (pro se relator)
Extendicare Homes, Inc., 4415 West 36 1/2 Street, St. Louis Park, MN 55416 (respondent)
Lee B. Nelson, Linda A. Holmes, Department of Employment and Economic Development, E200 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101 (for respondent commissioner)
Considered and decided by Shumaker, Presiding Judge, Randall, Judge, and Halbrooks, Judge.
Pro se relator challenges the commissioner’s representative’s decision that he is disqualified from receiving unemployment benefits because he was discharged for employment misconduct, specifically sexual harassment. In addition to disputing various factual findings, relator claims that (1) his employer did not give him warnings about his conduct; (2) he did not have a chance to review evidence submitted by his employer at the benefits hearing; and (3) the employer presented evidence about facts occurring after his discharge. Because the record reasonably supports the commissioner’s representative’s conclusion that relator was discharged for employment misconduct for sexually harassing his co-workers, we affirm.
Relator Mustapha Sheriff was employed as a cook and dietary aide by respondent Extendicare Homes, Inc. from October 22, 2000, through November 17, 2003. His problematic behavior began in December 2002, when relator made sexual statements to female housekeepers employed by respondent. According to one of the housekeepers, who is Mexican, “[relator] would sometimes place a banana between two buns or between two eggs” and say “panocha,” which is a vulgar term for “vagina” in Mexican Spanish. After an oral complaint was made, relator was warned to stop “making inappropriate sexual statements.” Despite the warning, relator continued to make inappropriate sexual comments to female employees. For example, nearly one year later, in October-November 2003, relator sent a note with sexual connotations to a female employee, a nurse, who had previously rejected relator’s requests for a date. The note stated, “I want to ground your coffee as soon as possible.” Relator admits to writing the note, but claims that it was only in response to the nurse’s use of the phrase on a previous occasion. The nurse interpreted the note as having a sexual overtone and reported it to her supervisor. In addition, another female employee complained that relator was making inappropriate advances toward her. Relator was subsequently discharged on November 17, 2003.
Relator applied for unemployment benefits. A Minnesota Department of Employment and Economic Development (department) adjudicator determined that he was disqualified from receiving benefits because of employment misconduct. Upon relator’s appeal, an unemployment law judge (ULJ) determined that relator was disqualified from receiving unemployment benefits because he had been discharged for employment misconduct for making “inappropriate verbal remarks” to other employees and that this behavior continued even after relator had been warned about it. On appeal from that decision, the department’s commissioner’s representative affirmed the ULJ’s decision and determined that relator committed employment misconduct by “continu[ing] to engage in an inappropriate manner and . . . sexually harass[ing] female co-workers after being warned such behavior must stop.” After filing his pro se brief with this court, relator submitted a number of letter “motions,” each of which was denied. This appeal follows.
This court reviews the findings of the commissioner’s representative rather than those of the unemployment law judge. Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995). In doing so, we view the findings in the light most favorable to the decision and will not disturb them when they are reasonably sustained by the evidence. Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989). We defer to the ability of the commissioner’s representative to weigh any conflicting evidence and to make credibility determinations. Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995).
 The revisor’s office inadvertently substituted the term “ineligible for” for the term “disqualified from” in Minn. Stat. § 268.095, subds. 1, 4, 7, 8(a) (Supp. 2003). See Minn. Stat. § 268.095, subds. 1, 4, 7, 8(a) (2002) (using term “disqualified from”); 2003 Minn. Laws 1st Spec. Sess. ch. 3, art. 2, § 11 (making other changes to Minn. Stat. § 268.095, subd. 1, but retaining term “disqualified from”); 2003 Minn. Laws 1st Spec. Sess. ch. 3, art. 2, § 20(j), (k) (directing revisor to change the term “disqualified from” to “ineligible for” only in Minn. Stat. § 268.095, subd. 12, and then to renumber to Minn. Stat. § 268.085, subd. 13b).