This opinion will be unpublished and

may not be cited except as provided by

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







Tim H. Bergeron, Relator,




Midwest Hardwood Corp.,



Department of Employment and Economic Development,




Filed August 30, 2005


Lansing, Judge



Department of Employment and Economic Development

File No. 14155 04



Tim H. Bergeron, 4560 Grimes Avenue North, Robbinsdale, MN 55422-1310 (pro se relator)


Midwest Hardwood Corp., 9540 – 83rd Avenue North, Maple Grove, MN 55369-4567 (respondent)


Linda A. Holmes, Minnesota 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 Security)



            Considered and decided by Lansing, Presiding Judge; Klaphake, Judge; and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N


            In this certiorari appeal from the denial of unemployment benefits, Tim Bergeron disputes the determination that he engaged in employment misconduct and contends that the unemployment law judge’s improper procedural and evidentiary rulings resulted in prejudice against him.  Because the record supports the decision that the employer terminated Bergeron’s employment because of a physical altercation with a coworker and does not support an alternative argument of improper evidentiary or procedural rulings, we affirm.


            Tim Bergeron worked as a forklift operator for Midwest Hardwood Corp. from December 2000 until August 2004.  When Bergeron began his employment with Midwest Hardwood, he signed an employee-handbook acknowledgement form and received the employee handbook containing a code of conduct that prohibited violent acts in the workplace.  Midwest Hardwood discharged Bergeron from his employment on August 26, 2004, after Bergeron engaged in a physical altercation in which he pushed off a coworker’s hardhat and threw coffee at him. 

Before the August 26 incident, Midwest Hardwood had twice warned Bergeron about negative interaction and altercations with his coworkers.  On March 3, 2003, Midwest Hardwood orally warned Bergeron after a physical altercation with a coworker.  Bergeron testified that this altercation began when he “touched” a coworker with his forklift.  Midwest Hardwood told Bergeron that this conduct violated its safety policy and that he would be disciplined if this type of behavior recurred.  On March 30, 2004, Midwest Hardwood issued a written warning to Bergeron.  This warning referenced the previous altercation, cautioned Bergeron about continuing personal conflicts with coworkers, and admonished him for repeatedly failing to report coworker problems to a supervisor and taking matters into his own hands.  The warning stated that, if Bergeron did not improve his behavior, he would face further disciplinary action, including the possibility of employment termination.

            Following his discharge from Midwest Hardwood, Bergeron filed for unemployment benefits.  A department adjudicator determined that Midwest Hardwood discharged Bergeron for employment misconduct, therefore disqualifying him from receiving benefits.  Bergeron appealed that determination to an unemployment law judge (ULJ).  The ULJ conducted a hearing and affirmed the adjudicator’s denial of benefits.  A senior review judge adopted the ULJ’s findings and determination.

In this certiorari appeal, Bergeron challenges the finding that he committed employment misconduct, asserts that the ULJ and senior review judge failed to consider evidence of his disability, and contends that the department failed to enforce subpoenas of coworkers to obtain testimony about drug ingestion and drug testing.


An employee discharged for employment misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4(1) (2004).  The question of whether an employee’s conduct results in disqualification from receiving unemployment benefits is a mixed question of law and fact.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  The determination of whether an employee committed a particular act is a factual question, but the determination of whether the act constitutes employment misconduct is a question of law.  Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 33 (Minn. App. 1997).  In reviewing factual determinations, we defer to findings of a senior review judge that are reasonably supported in the record; we exercise independent judgment on issues of law.  Lolling v. Midwest Patrol,545 N.W.2d 372, 377 (Minn. 1996). 

Our certiorari review is based on the statute in effect at the time the employee was discharged.  Brown v. Nat’l Am. Univ., 686 N.W.2d 329, 332 (Minn. App. 2004), review denied (Minn. Nov. 16, 2004).  At the time of Bergeron’s discharge, employment misconduct was defined as “any intentional, negligent, or indifferent conduct” that clearly displays either “a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee” or “a substantial lack of concern for the employment.”  Minn. Stat. § 268.095, subd. 6(a) (2004).

The senior review judge adopted the findings of the ULJ, who found that Midwest Hardwood discharged Bergeron because he was involved in a verbal and physical altercation with a coworker, that Bergeron was not acting in self-defense and could have walked away from the altercation, and that this altercation violated company policy and occurred after prior warnings.  These findings are reasonably supported by the record, and Bergeron does not dispute the company policy, the previous warnings, or that he knocked off his coworker’s hardhat and threw coffee at him.  Bergeron testified that he was not acting in self-defense, but was trying to “get even” for the coworker’s aggressive acts toward him.  Because the determinative findings are not in dispute, we consider whether Bergeron’s actions constitute employment misconduct.

As a general rule, an employee’s knowing violation of an employer’s policies, rules, or reasonable requests constitutes employment misconduct.  Montgomery v. F & M Marquette Nat’l Bank, 384 N.W.2d 602, 604 (Minn. App. 1986), review denied (Minn. June 13, 1986).  This rule is particularly applicable when there are multiple violations of the same policies, rules, or requests and the employee receives warnings or progressive discipline.  Schmidgall, 644 N.W.2d at 806 (holding that employee who repeatedly failed to comply with injury reporting policy, despite several warnings, committed employment misconduct).

Midwest Hardwood’s employee handbook contains a code of conduct that states that “employees are expected to observe . . . good conduct, safe work practices, [and] to follow generally accepted customs of good taste in all relations with co-workers and management.”  In addition, the handbook expressly prohibits acts of violence and defines violence as “intimidation, threats, verbal abuse, or physical actions such as throwing objects, slapping, punching, or wounding another person.” 

The evidence supports the senior review judge’s findings on the determinative facts, and these facts establish that Bergeron violated Midwest Hardwood’s policies and rules despite previous warnings and progressive discipline.  For these reasons we conclude that Bergeron’s actions constituted employment misconduct.

Bergeron contends that the ULJ and the senior review judge failed to consider evidence of his disability and also failed to enforce subpoenas issued to coworkers to obtain testimony about drug ingestion and drug testing.  The record on these claims is confusing.  Considering all of the submitted materials as part of the record on appeal, we are unable to find a connection between these claims and the reasons for Bergeron’s discharge.  See Minn. R. 3310.2922 (2003) (stating that “referee may exclude any evidence which is irrelevant, immaterial, unreliable, or unduly repetitious”). 

Bergeron has not demonstrated a connection between his left sensory neural hearing loss and the series of events that caused his employment discharge.  Similarly, the record does not establish how the involuntary ingestion of a coworker’s prescription medication for high blood pressure affected Bergeron’s employment termination.  Because the record does not demonstrate the relevance of the testimony Bergeron intended to obtain by subpoena, Bergeron has not demonstrated prejudice from the department’s failure to issue or enforce the subpoenas.  See Minn. R. 3310.2914 (2003) (stating that subpoena requests may be denied if testimony sought would be irrelevant, immaterial, or unduly cumulative or repetitious). 

The record supports the findings relating to Bergeron’s discharge.  These findings establish employment misconduct that demonstrates an intentional disregard of standards that the employer has a right to expect.  We therefore conclude that the senior review judge correctly interpreted and applied Minnesota law in determining that Bergeron was disqualified from receiving unemployment benefits.