This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).





Nathaniel Black,


Pier Foundry & Pattern Shop, Inc.,

Commissioner of Employment and Economic Development,


Filed April 5, 2004


Randall, Judge


Department of Employment and Economic Development

File No. 902 04



Nathaniel Black, 1811 Quincy Street NE, Minneapolis, MN 55418-4539 (pro se relator)


Pier Foundry & Pattern Shop, Inc., 51 State Street, Saint Paul, Minnesota 55107-1408 (respondent)


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


            Considered and decided by Minge, 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 challenges the commissioner’s representative’s determination that he was discharged for employment misconduct.  The commissioner’s representative based its decision on findings that relator fought with a co-worker, argued with a supervisor’s reasonable work directive, and arrived late for work five times in less than three weeks.  Relator argues that (a) others engaged in the same behavior; and (b) under the employer’s point system for absences, he was well below the maximum limit for termination based on absences.  We affirm.


Nathaniel Black (relator) was employed by Pier Foundry & Pattern Shop, Inc. (respondent-employer) from November 19, 2002, through December 22, 2003.  The record indicates that, in October 2003, relator was involved in an altercation with a co-worker.  And on December 20, 2003, relator arrived an hour-and-a-half late for work; responded to a request from his supervisor with “F—k you;” continued to argue with his supervisor about his duties; and then asked for and was granted permission to go home early.  Relator was subsequently terminated for insubordination and engaging in disruptive behavior.

On February 18, 2004, an unemployment law judge found that relator had been terminated for employment misconduct and disqualified him from receiving benefits.  Relator appealed to the commissioner’s representative immediately.  And on April 21, 2004, the commissioner’s representative issued its decision, finding that relator was discharged for employment misconduct and that he was disqualified from the payment of employment benefits.  The commissioner’s representative held that relator’s “fighting with a co-worker, arguing with a supervisor’s reasonable work directive, and arriving tardy for work on five occasions in fewer than three weeks is conduct amounting to a serious violation of the standards of behavior [respondent-employer] had a right to expect, and demonstrates a substantial lack of concern for his employment.”  This appeal followed.


            This court reviews the decision of the commissioner’s representative rather than that of the unemployment law judge.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  On appeal, the findings made by the commissioner’s representative are viewed in the light most favorable to the commissioner’s representative’s decision and where the evidence reasonably sustains the findings they should not be disturbed.  Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).  Further, this court defers to the ability of the commissioner’s representative to weigh conflicting evidence.  Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995).  

            Whether a former employee is disqualified from receiving unemployment benefits is a mixed question of law and fact.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  And the determination of whether an employee committed a particular act is a question of fact.  Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  But whether an act constitutes employment misconduct is a legal question, which this court reviews de novo.  Id.

An employee who is discharged for employment misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4(1) (Supp. 2003).[1]  Effective August 1, 2003, the statutory definition for employment misconduct was amended to provide:

Employment misconduct means any intentional, negligent, or indifferent conduct, on the job or off the job (1) that displays clearly a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee, or (2) that displays clearly a substantial lack of concern for the employment.


Inefficiency, inadvertence, simply unsatisfactory conduct, a single incident that does not have a significant adverse impact on the employer, conduct an average reasonable employee would have engaged in under the circumstances, poor performance because of inability or incapacity, good faith errors in judgment if judgment was required, or absence because of illness or injury with proper notice to the employer, are not employment misconduct.


Minn. Stat. § 268.095, subd. 6(a) (Supp. 2003).[2] 

            Relator argues that profanity and fighting were a regular part of the work environment and, therefore, he should not have been terminated for such behavior.  We disagree.  The record shows that relator read and signed respondent-employer’s employee handbook, which explicitly states that “fighting or disruptive conduct . . . using profane or abusive language toward other employees or supervisors will not be tolerated, and may be grounds for termination” (emphasis in original).  Refusal to abide by an employer’s reasonable policies constitutes employment misconduct.  Schmidgall, 644 N.W 2d. at 804.  It is clear from the record that relator violated this policy on more than one occasion.  Multiple violations of the same rule demonstrate an employee’s substantial lack of concern for his employment.  See Gilkeson v. Indus. Parts & Serv., Inc., 383 N.W.2d 448, 452 (Minn. App. 1986).     

            We conclude the commissioner’s representative did not err in finding that relator committed employment misconduct that disqualified him from receiving unemployment benefits.  Relator engaged in conduct that was a serious violation of the standards of behavior that his employer had a right to reasonably expect.  Relator’s disruptive conduct is enough for this court to affirm the decision of the commissioner’s representative as a matter of law.  In addition, while relator may not have exceeded respondent-employer’s point limit for absences, being late five times in three weeks indicated a substantial lack of concern for his employment.

            Finally, relator argues that additional evidence was presented after he was originally granted unemployment benefits.  But the record indicates only that respondent-employer submitted additional evidence to the unemployment law judge, and this was in accordance with the procedures defined by the Minnesota Statutes.  See Minn. Stat. § 268.105, subd. 1 (2002) (stating that on “appeal the department shall set a time and place for a de novo evidentiary hearing” before an unemployment law judge) (emphasis added).


[1]  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).

[2]  The law in effect at the time of the discharge must be applied.  Brown v. Nat’l Am. Univ., 686 N.W.2d 329, 332 (Minn. App. 2004) (clarifying Bray v. Dogs & Cats Ltd. (1997), 679 N.W.2d 182, 186 (Minn. App. 2004), review denied (Minn. Nov. 16, 2004).  Because amendments made to 2003 were effective August 1, 2003, and the discharge occurred on ­­­­December 22, 2003, the 2003 amendments should be applied.  See Minn. Stat. § 645.02 (2002) (unless otherwise specified, each act “takes effect on August 1 next following its final enactment”).