This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
William G. Vickers,
Commissioner of Employment and Economic Development,
Minnesota Department of Employment and Economic Development
File No. 5593 04
William G. Vickers,
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 Peterson, Presiding Judge; Schumacher, Judge; and Wright, Judge.
Relator challenges the decision of the commissioner’s representative that he is disqualified from receiving unemployment benefits because he was discharged for employment misconduct. We affirm.
Hazelden Foundation (Hazelden) employed relator William Vickers as a chemical dependency counselor from October 1998 to March 2004. In the fall of 2000, when Vickers reportedly threatened a patient, Hazelden became concerned about Vickers’s aggressive style of interaction with residents in the program. In March and April 2003, patients reported that Vickers swore during treatment and during group therapy. Vickers’s supervisor, Jim Thalhuber, and the executive director, Brenda Iliff, met with him to discuss his aggressive style and provide guidance to soften his style. Both Iliff and Thalhuber believed Vickers was improving.
In February 2004, a confrontation occurred between Vickers and two residents in which the residents reported that Vickers behaved in an intimidating manner. The following week, on March 2, 2004, Vickers met with Thalhuber and Iliff to discuss the incident. Vickers was agitated because he believed that he had addressed and resolved the situation with the residents. Further adding to his agitation was a general fear among the staff of losing jobs due to increased scrutiny from Thalhuber. Vickers had complained to Iliff about Thalhuber and viewed the meeting as retaliatory.
During the meeting, Thalhuber began to address other issues related to Vickers’s performance. Vickers was caught off guard with references to other incidents and became angry. Thalhuber informed Vickers that he would receive a written warning for the incident. Vickers did not feel that the incident warranted formal notation in his employee file because it had been resolved. Vickers refused to sign the warning and left the meeting abruptly. On his way out, Vickers told Thalhuber that he was not intimidated by him and was going to report Thalhuber to human resources.
After Vickers left the meeting, Iliff contacted human resources to have him suspended with pay until the situation was resolved. Vickers did not return to work and received a phone call from Iliff, Thalhuber, and a human resources representative the next day. Vickers was given the option to resign or be discharged. Vickers chose to resign.
Vickers applied for unemployment benefits. In a hearing before an unemployment law judge on April 15, 2004, Vickers was found to have quit his job without a good reason caused by the employer. Vickers appealed, and the commissioner’s representative determined that Vickers was discharged for employee misconduct. This certiorari appeal followed.
review 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 (
an initial matter, we address Vickers’s argument that he quit for a good reason
caused by the employer. The
commissioner’s representative concluded that Vickers was disqualified from
receiving unemployment compensation because of employment misconduct. “Whether an employee has been
discharged or voluntarily quit is a question of fact[.]” Midland Elec., Inc. v. Johnson, 372
N.W.2d 810, 812 (
Vickers argues that he quit his employment because it was an abusive workplace and because Hazelden had not accommodated his disability. The record, however, supports the finding that it was the employer’s decision to end the employment relationship. Vickers may have been considering quitting, but he had not made a decision at the time of the employer’s ultimatum. While Vickers was given the option of quitting or resigning, continued employment was not an option to him. Vickers testified to this by stating that he did not believe he had a choice, and that he was to resign or be discharged.
Vickers contends that the commissioner’s representative erred in finding that he was discharged for employment misconduct. Employment misconduct is defined as
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, simple 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). Whether the employee
committed a particular act is a question of fact, which we review for clear
error. See Scheunemann v. Radisson S.
Hotel, 562 N.W.2d 32, 34 (
Vickers contests the finding of the
commissioner’s representative that he displayed aggressive behavior toward
residents. But the record contains ample
support for this finding. Indeed, the
only evidence that is inconsistent with the findings of the commissioner’s
representative is the testimony of Vickers, which the commissioner’s
representative determined to lack credibility.
Credibility determinations are the province of the commissioner’s
representative and will not be disturbed on review. Whitehead
v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (
 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).
 Vickers informed Hazelden in the summer or fall of 2003 that he had been diagnosed with muscular dystrophy. Vickers requested a change in his schedule to accommodate his disease. Hazelden required a note from his doctor to make any changes, and Vickers never provided the necessary documentation.