This opinion will be unpublished and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
Department of Employment and Economic Development
File No. 13479 04
Bonnie M. Smith,
Linda A. Holmes, Department of Employment and Economic Development, Suite E200, First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101 (for respondent Department)
Considered and decided by Peterson, Presiding Judge; Halbrooks, Judge; and Stoneburner, Judge.
Relator Bonnie M. Smith challenges the determination of a senior unemployment review judge (SURJ) that relator was discharged for misconduct and therefore disqualified from receiving unemployment benefits. Because the record supports the SURJ’s decision, we affirm.
Relator was hired on June 16, 2003, as a senior production assembler by Itron, a company that specializes in electronics manufacturing. Itron’s “zero-tolerance” policy against sexual harassment is explicitly stated in the employee handbook:
It is the company’s policy to maintain a work environment free from offensive or degrading comments or conduct. . . . Employees have a right to be free from sexual harassment. Itron will not condone actions or words which would be considered sexual harassment or coercive.
On December 15, 2003, relator signed a form acknowledging that she attended harassment-sensitivity training, understood the company’s policy on harassment, and had a responsibility not to engage in behaviors that constituted harassment.
The following March, relator was given a verbal disciplinary warning for “[b]ringing pornography into the workplace and creating a harassing environment for others,” as a result of viewing and passing on to another employee a novelty “camera” containing a pornographic picture of men. The employee to whom relator passed the item complained to the supervisor.
On June 14, 2004, another employee lodged a sexual-harassment complaint against relator. Supervisors investigated the matter by talking to coworkers, who verified that relator, during work time, used inappropriate language and made sexual jokes and remarks that they found offensive. In an interview with a supervisor, relator admitted that she had told some sexual jokes to the complaining coworker, but said she stopped when the coworker asked her to stop. The employer concluded that relator and the male coworker who brought the complaint against her had mutually engaged in inappropriate sexual banter. The employer discharged relator and the complaining employee for violating the company’s sexual-harassment policy.
Relator applied for unemployment benefits and was initially determined to be disqualified from receiving benefits because relator was discharged for employment misconduct. Relator appealed, and a ULJ reversed, concluding that the discharge was for reasons other than employment misconduct and that relator was entitled to benefits. The employer appealed, and a SURJ reversed the ULJ, determining that relator committed employment misconduct and was disqualified from receiving benefits. This appeal by writ of certiorari followed.
On appeal, this courtexamines the decision of
the SURJ rather than the decision of the ULJ. Tuff v. Knitcraft Corp., 526 N.W.2d
50, 51 (
 The term “senior unemployment review judge” has
replaced “commissioner’s representative” for all SURJ decisions released after
August 1, 2004. See 2004
 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).