This opinion will be unpublished and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
Mark A. Mettler,
Department of Employment and Economic Development,
Filed August 30, 2005
Department of Employment and Economic Development
File No. 12628 04
Service, Personnel Services, Attn: Ed Matheson, Room 728, P.O. Box 645004, St.
Linda A. Holmes, Department of Employment and Economic Development, First National Bank Building, 332 Minnesota Street, Suite E200, St. Paul, MN 55101-1351 (for respondent Department of Employment and Economic Development)
Considered and decided by Shumaker, Presiding Judge; Klaphake, Judge; and Willis, Judge.
U N P U B L I S H E D O P I N I O N
Relator challenges the decision of the senior unemployment-review judge adopting the findings and decision of the unemployment-law judge, upholding the determination that relator was discharged for misconduct and therefore was disqualified from receiving unemployment benefits. Because we conclude that the findings support the conclusion that relator was discharged for employment misconduct, we affirm.
Relator Mark A. Mettler worked as a temporary mail handler for the United States Postal Service from April 26, 2004, until July 1, 2004, when he was discharged after an incident with a coworker.
On June 30, 2004, Mettler grabbed a box that was the second from the top in a stack and knocked over a bottle of soda pop that had been set on the top box. The coworker to whom it belonged told him several times, “Hey, you dumped over my pop.” Mettler reacted by dumping the remaining contents of the bottle over the coworker. The postal service discharged Mettler for this incident.
Mettler then established a benefit account with the Department of Employment and Economic Development. A department adjudicator determined that Mettler was discharged for employment misconduct and was disqualified from receiving benefits. Mettler appealed the decision, and a hearing was held before an unemployment-law judge (ULJ), who affirmed the initial determination. Upon further appeal, a senior unemployment-review judge (SURJ) declined to conduct additional proceedings and instead adopted the findings and decision of the ULJ. This certiorari appeal followed.
D E C I S I O N
employee engaged in conduct that disqualifies the employee from unemployment
benefits is a mixed question of fact and law.”
Schmidgall v. FilmTec Corp.,
644 N.W.2d 801, 804 (
ULJ determined that Mettler had been discharged for misconduct, Mettler
appealed the decision to the SURJ, under Minn. Stat. § 268.105, subd. 2(a)
(2004). If the SURJ determines that the
facts are not in dispute, he or she may decline to conduct a de novo review and
instead issue an order adopting the ULJ’s findings and decision.
Mettler first claims that he was falsely accused of lunging at a coworker and grabbing him by the arms. In the discharge letter, the employer referred to these facts, but the ULJ did not make such findings. Consequently, it is not necessary for this court to review the argument.
argues that he did not commit misconduct.
An employee who is discharged for employment misconduct is disqualified
from receiving unemployment benefits.
Employment misconduct means 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.
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.
In support of its decision to terminate Mettler, the postal service relied on several of its policies. First, it cited its policy prohibiting “unacceptable conduct,” which provides that employees may not engage in conduct that is “criminal, dishonest, notoriously disgraceful . . . or . . . prejudicial [conduct] to the Postal Service.” Second, it cited its policy requiring employees to
conduct themselves during and outside working hours in a manner which reflects favorably upon the Postal Service . . . . [I]t does require that postal personnel be honest, reliable, trustworthy, courteous, and of good character and reputation. Employees are expected to maintain satisfactory personal habits so as not to be obnoxious or offensive to other persons or to create unpleasant working conditions.
Finally, it cited its policy of zero tolerance for physical and verbal altercations in the workplace.
Mettler does not dispute that he poured soda pop over his fellow employee, but he asserts that it was not misconduct because it was not a violent act, this was his first offense, and he had been working for the post office for a period of time without incident. He argues that as a temporary postal employee, he had never felt welcomed by the full-time workers, that he had been heckled, and that he had stood up for himself by pouring a little soda pop on the heckler’s arm. Mettler acknowledged that he had acted immaturely, but he asserts that his conduct should not have resulted in his discharge.
is a serious violation of the standard of behavior that the employer has a
right to reasonably expect is employment misconduct.
 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).