This opinion will be unpublished and
                  may not be cited except as provided by
               Minn. Stat. § 480A.08, subd. 3 (1994).

                          State of Minnesota
                            in Court of Appeals

     Daniel G. Sommers,

Liberty Carton & Co.,
     Commissioner of Economic Security,
     Filed May 14, 1996
Peterson, Judge

Department of Economic Security

File No. 606IUC95

Jerome V. Blatz, 191 Valley Office Park, 10800 Lyndale Avenue South,
Bloomington, MN 55420 (for Relator)

Joseph M. Sokolowski, Jeffrey R. Johnson, Parsinen Bowman, Kaplan & Levy,
P.A., 100 South Fifth Street, Suite 1100, Minneapolis, MN 55402 (for

Kent E. Todd, 390 North Robert Street, Saint Paul, MN 55101 (for

Considered and decided by Peterson, Presiding Judge, Huspeni, Judge, and
Mulally, Judge.(*)

        [Footnote] (*)Retired judge of the district court,
        serving as judge of the Minnesota Court of Appeals
        by appointment pursuant to Minn. Const. art. VI,
        § 10.
                        Unpublished Opinion

PETERSON, Judge (No lower court judge)

Relator Daniel G. Sommers seeks review of the determination that he is
disqualified from receiving reemployment insurance benefits because he was
discharged for misconduct. We affirm.

Sommers worked as a fork-lift operator for respondent Liberty Carton &
Company (Liberty). During his employment, Sommers had personal difficulties
with Chandra Sumsundra, a fellow employee.

Liberty had a ``no fighting'' policy, and all employees were informed that
fighting would lead to termination. Sommers signed an acknowledgement that
he was aware of and understood the no-fighting rule.

During their dinner break, Sommers and a coworker, Brian Howell, were
sitting at an outdoor picnic table, near the door to the plant. Sumsundra
came out and sat on the opposite end of the table. Sommers and Sumsundra
exchanged words. The verbal exchange escalated to the point that the two
men were wrestling on the ground, clenched together.

A supervisor, Mike Olsen, came out of the plant. He and Howell separated
the two men. Sommers and Sumsundra were sent home and put on suspension.
Later, they were both terminated.

One hour after the incident, Howell made a written incident report. He
        Chandra took his wallet out of his pocket and
        said[,] ``Dan look how much [expletive] money I
        have[.''] At the same moment Dan stood on the picnic
        table and slapped Chandra's wallet and said[, ``]I
        don't care about your money.[``] *** Chandra pushed
        Dan. Dan pushed Chandra back then Chandra went after
        Dan, Dan in return did a round house (karate kick)
        kick and hit Chandra in the head[.] I tried to break
        them up grabbed Chandra, *** Chandra went after Dan
        again[.] Dan kicked him again in the chest. Once
        again they started to wrestle around on the ground
        *** .

Howell also testified at the hearing. He stated that Sommers told Sumsundra
that he did not want to fight and that he did not want to get fired. Howell
testified that Sumsundra was more likely the aggressor because ``he kept
persisting [in] going after Dan, after I grabbed him.'' Howell also
testified that both men were responsible for the fight and that Sommers
could have avoided the incident by simply walking into the building.

The reemployment insurance judge found that
        On June 13, 1995 [Sommers] became involved in a
        fight with a coworker. [Sommers] took no aggressive
        actions toward the coworker and was only trying to
        protect himself.

The judge determined that Sommers was involuntarily separated from
employment for reasons other than misconduct and was not disqualified from
receiving reemployment insurance benefits.

On appeal, the Commissioner's representative made the following finding of
        On or about June 13, 1995, [Sommers] and a co-worker
        got involved in a verbal argument that escalated
        into a physical altercation. Both parties actively
        participated in the physical altercation, which took
        place on company property. [Sommers] had at least
        one opportunity to walk away from the argument and
        ensuing fight, but he chose not to do so.

The Commissioner's representative concluded that Sommers was discharged for
misconduct and was, therefore, disqualified from receiving benefits.

In an economic security case, the Commissioner's representative may reject
the reemployment insurance judge's findings of fact and make new findings;
in which case, this court must review the findings of the representative.
Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995) (quoting
Minn. Stat. §§ 268.10, subd. 5 (1992) and 268.12, subd. 13(3)
(1992) ). On appeal,
        [t]he narrow standard of review requires that
        findings be viewed in the light most favorable to
        the decision, and if there is evidence reasonably
        tending to sustain them, they will not be disturbed.

White v. Metropolitan Medical Ctr., 332 N.W.2d 25, 26 (Minn. 1983).

Sommers argues that the Commissioner's representative's finding that he had
at least one chance to walk away from the argument and ensuing fight, but
he chose not to do so, is not supported by the evidence. We disagree.

Brian Howell testified that Sommers could have walked into the building to
avoid the fight. Howell's testimony is sufficient to sustain the finding.

Sommers argues further that, even if he could have retreated to the
building, his failure to do so evinces only a lack of judgment, not a
wilful or wanton disregard of the employer's interests. Therefore, Sommers
concludes, his actions do not constitute misconduct because all of his
actions were a result of Sumsundra's actions against him. We disagree. The
determination of the commissioner that an employee committed misconduct is
a mixed question of fact and law. A reviewing court will affirm if the
findings of fact ``are not without support in the evidence'' and if ``the
conclusion on those facts is not contrary to the statutory mandate.''
Colburn v. Pine Portage Madden Bros., Inc., 346 N.W.2d 159, 161
(Minn. 1984).

An individual discharged for ``misconduct'' shall be disqualified from
receiving reemployment insurance benefits. Minn. Stat. 𨵤.09, subd.
1(b) (1994). The Minnesota Supreme Court has defined misconduct as
        `` * * * conduct evincing such wilful or wanton
        disregard of an employer's interests as is found in
        deliberate violations or disregard of standards of
        behavior which the employer has the right to expect
        of his employee, or in carelessness or negligence of
        such degree or recurrence as to manifest equal
        culpability, wrongful intent or evil design, or to
        show an intentional and substantial disregard of the
        employer's interests or of the employee's duties and
        obligations to his employer.''

Tilseth v. Midwest Lumber Co., 295 Minn. 372, 374-75, 204 N.W.2d
644, 646 (1973) (quoting Boynton Cab Co. v. Neubeck, 296 N.W. 636,
640 (Wis. 1941) ). A single incident may constitute misconduct if it
represents sufficient disregard for the employer's expectations. Blau v.
Masters Restaurant Assocs., Inc., 345 N.W.2d 791, 794 (Minn. App.
1984). Disruptive behavior in the workplace constitutes misconduct.
Booher v. Transport Clearings of Twin Cities, Inc., 260 N.W.2d 181,
183 (Minn. 1977); see also Hines v. Sheraton Ritz Hotel, 349
N.W.2d 329, 330 (Minn. App. 1984) (physical fighting constitutes
misconduct). Finally, violation of an employer's work rules constitutes
misconduct. Dean v. Allied Aviation Fueling Co., 381 N.W.2d 80, 84
(Minn. App. 1986).

In Hines, this court held that an employer has a right to expect
employees not to fight, concluding that an employee who was not the initial
aggressor, who was acting initially in self-defense, but who actively
engaged in the continuation of the fight was guilty of misconduct. 349
N.W.2d at 330.

Brian Howell testified that Sommers was partially responsible for the
fight. He testified that Sommers slapped Sumsundra's wallet out of his hand
and kicked Sumsundra on at least one occasion. Howell's written report
stated that Sommers pushed and kicked Sumsundra.

Additionally, Mike Olsen testified that he saw Sommers, while rolling
around on the ground, return punches with Sumsundra. It took both Olsen and
Howell to tear the two men apart.

Despite Sommers' statements that he did not want to fight and he did not
want to lose his job, the evidence supports the finding that Sommers was
not exclusively acting in self-defense, but actively fighting. Because
fighting on the job is misconduct, Sommers was discharged for misconduct.
Therefore, he is disqualified from receiving reemployment insurance