This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
STATE OF MINNESOTA
IN COURT OF APPEALS
William J. Pluta,
SMSC Gaming Enterprises,
Department of Employment and
Filed April 17, 2007
Department of Employment and Economic Development
File No. 1370 06
William J. Pluta, 13213 Webster Avenue, Savage, MN 55378-2418 (pro se relator)
Thompson, Olson, Allen & Rasmussen, LLC,
Linda A. Holmes, Minnesota Department of Employment and Economic Development, 1st National Bank Building, 332 Minnesota Street, Suite E200, St. Paul, MN 55101-1351 (for respondent Department)
Considered and decided by Willis, Presiding Judge, Klaphake, Judge, and Collins, Judge.*
Relator William J. Pluta challenges a decision by an unemployment law judge (ULJ) that affirms on reconsideration an earlier decision that relator was disqualified from receiving unemployment benefits because he was discharged for employment misconduct after using profanity and throwing a remote control in the direction of two coworkers. Relator asserts that he was “unjustly denied” benefits because his employer, respondent SMSC Gaming Enterprise, prohibited him from accessing records or interviewing witnesses to the incident that led to his firing. He further disagrees with the ULJ’s characterization of his actions and insists that he did not throw the remote control, but merely “tossed” it, and that he used profanity only once, not numerous times.
Because relator acknowledges that he used profanity and tossed the remote control in the direction of two coworkers, and because this conduct displays clearly a serious violation of the standards of behavior that an employer has a right to reasonably expect, we affirm the ULJ’s determination that relator committed employment misconduct and was therefore disqualified from receiving unemployment benefits.
D E C I S I O N
This court reviews the ULJ’s decision to determine whether the findings, inferences, conclusion, or decision are “(1) in violation of constitutional provisions; (2) in excess of the statutory authority or jurisdiction of the department; (3) made upon unlawful procedure; (4) affected by other error of law; (5) unsupported by substantial evidence in view of the entire record as submitted; or (6) arbitrary or capricious.” Minn. Stat. § 268.105, subd. 7(d) (2006).
of whether an employee committed employment misconduct is a mixed question of
fact and law. Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (
Here, the ULJ accepted the testimony of relator’s coworkers, who testified that relator was angry, swore several times, and threw the remote control so hard that it bounced off the wall and almost hit one of the coworkers in the head. The ULJ chose to reject relator’s testimony, in which relator attempted to minimize the severity of his actions. See Skarhus v. Davanni’s, 721 N.W.2d 340, 344 (Minn. App. 2006) (stating that this court defers to ULJ’s credibility determinations).
misconduct is defined to include “any intentional, negligent, or indifferent
conduct, on or off the job . . . that displays clearly a serious violation of
the standards of behavior the employer has the right to reasonably expect of
the employee.” Minn. Stat.
§ 268.095, subd. 6(a) (2006). An
employer has the right to expect an employee to act peaceably and not engage in
conduct that endangers other people’s safety.
See Shell v. Host Int’l Corp.,
513 N.W.2d 15, 17 (
courts have determined that an employee commits misconduct when he swears at
and pushes his supervisor, Shell, 513
N.W.2d at 16; hits a coworker in the head with a snowball, Wilson v. Comfort Bus Co., 491 N.W.2d 908, 909, 911 (Minn. App.
1992), review denied (Minn. Jan. 15,
1993); or becomes angry, accelerates his vehicle out of the parking lot, and
nearly collides with another vehicle, Hayes,
490 N.W.2d at 873. While the use of
profanity alone may not rise to the level of misconduct in certain cases, an employee
who uses profanity in conjunction with some other act of aggression or physical
confrontation generally commits employment misconduct. See,
e.g., Isse v. Alamo Rent-A-Car, 590 N.W.2d 137, 138 (
we were to accept relator’s testimony that he did not intend to throw the
remote so hard that it bounced off the wall and almost hit one of his
coworkers, his actions were still “intentional” in the sense that they were
deliberate, and not accidental. See Vargas v. Nw. Area Found., 673
N.W.2d 200, 204 (
On reconsideration, relator claimed that he was denied access to witnesses and records by SMSC Gaming. The ULJ denied relator’s request for reconsideration, noting that relator had failed to subpoena any witnesses or request any documents. See Minn. R. 3310.2914, subp. 1 (2005) (subpoenas are available to compel production of documents or appearance of witnesses).
must “assist unrepresented parties in the presentation of evidence” and “ensure
that relevant facts are clearly and fully developed.”
The decision of the ULJ is therefore affirmed.
* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.