This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996)




Randall C. Fury,



Northern Star Co.,


Commissioner of Economic Security,


Filed October 28, 1997


Parker, Judge

Department of Economic Security

Agency File No. 3485UC97

Randall C. Fury, 4925 University Avenue Northeast, Columbia Heights MN 55421-1612 (relator pro se)

Jessica Lipsky Roe, Gilmore, Aafedt, Forde, Anderson & Gray, P.A., 150 South Fifth Street, Suite 3100, Minneapolis, MN 55402 (for respondent Northern Star Co.)

Kent E. Todd, Minnesota Department of Economic Security, 390 North Robert Street, St. Paul, MN 55101 (for respondent commissioner)

Considered and decided by Short, Presiding Judge, Parker, Judge, and Crippen, Judge.



Relator Randall C. Fury appeals the determination of the commissioner's representative that Fury was discharged from his employment for misconduct that disqualified him from receiving reemployment compensation as a result. We affirm.


This court reviews the findings of the commissioner's representative, not those of the reemployment judge, even when those findings involve witness credibility. Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995). Whether an employee has committed disqualifying misconduct is a mixed question of fact and law. Colburn v. Pine Portage Madden Bros., 346 N.W.2d 159, 161 (Minn. 1984). Reviewing courts are not bound by the commissioner's representative's conclusions of law. Ress v. Abbott Northwestern Hosp, Inc., 448 N.W.2d 519, 523 (Minn. 1989). However, findings of the commissioner's representative must "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 Med. Ctr., 332 N.W.2d 25, 26 (Minn. 1983).

Fury, by pro se brief, argues the commissioner's representative erred in concluding that his letters to Mensing constituted misconduct. He contends the commissioner's representative's review of his February 28, 1997, letter to Mensing erroneously determined that the single sentence, "I liked the tigers the best" constituted non-work-related communication, thereby supporting his termination. He claims the warning letter he received from human resources director Wilson on December 9, 1996, specifically refers to possible termination for "Unwanted Letters/Notes" and not "Unwanted sentences." Fury also argues that he was terminated because of complaints he made to OSHA against Northern Star that resulted in fines to the company. He contends the reemployment judge erred by failing to allow introduction of evidence to support this claim. Because of these errors, he contends, his denial of benefits was in error.

An individual who is discharged for misconduct is disqualified from receiving reemployment insurance benefits. Minn. Stat. § 268.09, subd. 1(b) (1996). The Minnesota Supreme Court has adopted the following definition of misconduct:

[T]he intended meaning of the term 'misconduct' * * * is limited to conduct evincing such willful 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 Boyton Cab Co. v. Neubeck, 237 Wis. 249, 259, 296 N.W. 636, 640 (1941)). The issue, therefore, is not whether an employer was "justified" in discharging an employee, but whether the employee's actions constituted "misconduct" for reemployment insurance purposes. McCourtney v. Imprimis Technology, Inc., 465 N.W.2d 721, 724 (Minn. App. 1991).

The reemployment insurance statutes are remedial in nature and are to be liberally construed in favor of awarding benefits. Ress, 448 N.W.2d at 523. The employer has the burden of proving, by a preponderance of the evidence, that an employee has committed disqualifying misconduct. Id. However, the ultimate determination of whether an employee committed misconduct is a question of law on which this court exercises independent judgment. Ress, 448 N.W.2d at 523.

The commissioner's representative found that Mensing did not welcome Fury's expressed admiration and affection for her. She noted that Mensing felt that Fury's letters were inappropriate and constituted harassment. The commissioner's representative found that Fury was put on notice that Mensing had filed a sexual harassment claim against him. She further noted that Fury was explicitly warned to refrain from having any personal communication with Mensing or face the possibility of termination of his employment. The commissioner's representative then found that Fury's February 1997 letter to Mensing contained references to personal matters, which offended Mensing. She then noted that Fury was discharged for misconduct for writing this letter in violation of the warning given to him by Northern Star's human resources director.

The commissioner's representative then determined that Northern Star's restriction of Fury's communication with Mensing was reasonable and did not impose an unreasonable burden. She concluded that Fury's February 1997 letter to Mensing constituted a knowing violation of the warning. She further noted that, even absent evidence to support the contention that Fury was fired for an ulterior motive, the record supported Fury's termination for misconduct.

We cannot say the determinations of the commissioner's representative are unsupported by the record. Mensing accused Fury of sexual harassment for his repeated, but unwanted, letters and gifts. Mensing brought these actions to the attention of their employer, Northern Star, and commendably, the company moved to rebuke Fury for his actions. By clear and explicit terms, Northern Star forbade Fury from imposing any personal contact upon Mensing. Fury was also informed that any violation of this directive would result in his termination. We hold the employer's instructions to have been reasonable and clear.

We observe that Fury, a self-described "risk-taker," chose to ignore the directive of Northern Star and persisted in communicating, on a personal basis, with Mensing. We hold that the record supports the conclusion of the commissioner's representative that Fury's continued personal communications with Mensing violated the directive of his employer, Northern Star, and constituted disqualifying misconduct. We are directed to nothing in the record to support Fury's assertion that Northern Star had an ulterior motive for terminating his employment. We conclude that the determination of the commissioner's representative was not error.