This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







Leroy R. Blanks,


Fairview Hospital & Healthcare,

Commissioner of Employment and Economic Development,


Filed August 3, 2004


Wright, Judge


Department of Employment and Economic Development

File No. 980 03



Leroy R. Blanks, 1573 North Dale Street, St. Paul, MN  55117 (pro se relator)


Janet C. Ampe, Felhaber, Larson, Fenlon & Vogt, P.A., 220 South Sixth Street, Suite 2200, Minneapolis, MN  55402 (for respondent Fairview Hospital & Healthcare)


Lee B. Nelson, M. Kate Chaffee, Michael Redman, Department of Employment and Economic Security, 390 Robert Street North, St. Paul, MN  55101 (respondent Commissioner)



            Considered and decided by Kalitowski, Presiding Judge; Toussaint, Chief Judge; and Wright, Judge.


U N P U B L I S H E D  O P I N I O N




Relator challenges the decision of the commissioner’s representative that he is disqualified from receiving unemployment benefits because he was discharged for employment misconduct.  We affirm.


Relator Leroy Blanks was employed by respondent Fairview Hospital & Healthcare as a driver and materials handler from February 7, 2000, through December 17, 2002.  Fairview has a written policy prohibiting harassment and disruptive behavior.  Under the policy, harassment and disruptive behavior include “physical altercations or threats in the work place” and “verbally abusive behavior (loud, profane, disrespectful).”  The policy provides that engaging in harassment and disruptive behavior may result in corrective action, including termination of employment.  At the beginning of his employment, Blanks signed forms acknowledging that he received, read, and agreed to act in accordance with the policy.  He also acknowledged reviewing the policy annually.

Fairview has a progressive discipline policy.  The first phase of corrective action is coaching and counseling.  The next phase is an oral or written warning.  The final phase is termination of employment.  Depending on the severity of the incident, Fairview retains the discretion to forego the first two phases of corrective action. 

In May 2001, Blanks was given a written warning for yelling, swearing, and name-calling during an incident with another driver.  Blanks was given a second written warning four months later for calling a different co-worker names, bumping the co-worker’s chest, coming within an inch of the co-worker’s face and stating, “[W]hat are you going to do now” and “[W]e’ll finish this later.”  Human resources personnel counseled Blanks in January 2002 for swearing at a third co-worker and inviting him to go outside and “settle it like a man.”  Blanks was counseled again by a supervisor in September after Blanks challenged the co-worker to a physical altercation.  Finally, on December 5, 2002, Blanks and a fifth co-worker engaged in an altercation during which the co-worker yelled and shook his finger in Blanks’s face and Blanks yelled and bumped the co-worker with his shoulder.  After an investigation, Fairview terminated Blanks because of multiple incidents of harassment and intimidating behavior exhibited in the workplace. 

            The Department of Employment and Economic Development determined that Blanks was disqualified from receiving benefits because he was terminated for employment misconduct.  Blanks appealed to an unemployment law judge.  At the hearing before the unemployment law judge, Blanks testified that accounts of the altercation with his co-worker on December 5 had been exaggerated.  Although he admitted demanding an apology during the incident, he denied yelling or swearing.  Blanks testified that the other altercations had been mischaracterized.  The unemployment law judge affirmed the department’s decision that Blanks committed employment misconduct.  On appeal to the commissioner’s representative, the case was remanded to the unemployment law judge for additional evidence. 

On remand, the unemployment law judge heard testimony from Blanks’s former co-worker, Cynthia Hawkins, and received additional exhibits relating to the decision to terminate Blanks.  Hawkins testified that, during the portion of the December 5 altercation that she witnessed, the noses of the men were almost touching as they argued.  But she could not hear what they were saying.   Blanks offered a statement recounting his version of the December 5 incident that he gave to his supervisor on December 6. 

The unemployment law judge reversed the department’s determination that Blanks was disqualified from receiving unemployment benefits, finding that Blanks credibly denied Fairview’s allegations of wrongdoing.  Fairview appealed, and the commissioner’s representative reversed the unemployment law judge’s decision.  Finding that Blanks’s denial of swearing at and bumping his co-workers was not credible, the commissioner’s representative concluded that the evidence established that Blanks was terminated for employment misconduct.  This certiorari appeal followed. 


We review the findings of the commissioner’s representative rather than those of the unemployment law judge.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  In doing so, we view the factual findings in the light most favorable to the decision, Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989), giving deference to the credibility determinations made by the commissioner’s representative, Gradine v. Coll. of St. Scholastica, 426 N.W.2d 459, 462-63 (Minn. App. 1988), review denied (Minn. Aug. 24, 1988).  When the evidence reasonably sustains the findings, they will not be disturbed.  Ress, 448 N.W.2d at 523.

As an initial matter, Blanks challenges the reliance on hearsay evidence as a basis for the decision of the commissioner’s representative.  The commissioner’s representative is not bound by statutory and common-law rules of evidence.  Indeed, the commissioner’s representative may receive any evidence that possesses probative value, including hearsay.  Minn. R. 3310.2922 (2003).  Hearsay evidence alone is sufficient, provided the decision of the commissioner’s representative is supported by a preponderance of the evidence.  Youa True Vang v. A-1 Maint. Serv., 376 N.W.2d 479, 482 (Minn. App. 1985); see also Minn. Stat. § 268.03, subd. 2 (2002).  Accordingly, reliance on hearsay was not erroneous. 

Blanks next contends that the commissioner’s representative did not fully consider evidence weighing in his favor, including Hawkins’s testimony.  The record does not support this contention.  The only evidence that was inconsistent with the findings of the commissioner’s representative was the testimony of Blanks himself, which the commissioner’s representative determined lacked credibility.  The record establishes that Blanks engaged in verbal altercations and physical altercations with co-workers.  On December 5, Blanks confronted another co-worker and initiated physical contact.  Indeed, Hawkins’s testimony is not inconsistent with the findings and conclusions of the commissioner’s representative.  Although Hawkins did not see the entire incident, she observed the two men arguing.  The remaining evidence in the record, including the documentary evidence regarding each of the altercations, contradicts Blanks’s contention that the incidents were mischaracterized.  In light of the deference afforded the commissioner’s representative on issues of credibility, we conclude that there is ample evidentiary support for the decision of the commissioner’s representative.

Finally, Blanks argues that the record does not support the conclusion of the commissioner’s representative that Blanks was terminated for employment misconduct.  Whether an employee committed employment misconduct is a mixed question of fact and law.  Colburn v. Pine Portage Madden Bros., Inc.,346 N.W.2d 159, 161 (Minn. 1984).  Whether the employee committed a particular act is a question of fact, which we review for clear error.  Scheunemann v. Radisson South Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  Whether the act constitutes employment misconduct is a question of law, which we review de novo.  Ress, 448 N.W.2d at 523. 

An employee who is discharged for employment misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4(1) (2002).  Employment misconduct is defined as “(1) any intentional conduct . . . that disregards the standards of behavior that an employer has the right to expect of the employee or [that] disregards the employee’s duties and obligations to the employer; or (2) negligent or indifferent conduct . . . that demonstrates a substantial lack of concern for the employment.”  Minn. Stat. § 268.095, subd. 6(a) (2002).  “[I]nefficiency, inadvertence, simple unsatisfactory conduct, [and] poor performance because of inability or incapacity  . . . are not employment misconduct.”  Minn. Stat. § 268.095, subd. 6(a), (b) (2002).[1] 

A reviewing court applies a two-pronged test to determine whether an employee’s actions constitute intentional “employment misconduct.”  Houston v. Int’l Data Transfer Corp., 645 N.W.2d 144, 149 (Minn. 2002).  The employee’s conduct must “(1) be intentional and (2) disregard standards of behavior the employer has a right to expect or the employee’s duties and obligations to the employer.”  Id.  Blanks does not contend that he acted inadvertently or unintentionally.  Thus, our inquiry is limited to whether he disregarded the standards of behavior that Fairview had a right to expect. 

An employee’s use of abusive and threatening language is disqualifying conduct.  Ideker v. LaCrescent Nursing Ctr., Inc., 296 Minn. 240, 241, 207 N.W.2d 713, 714 (1973) (holding that an employee’s use of hostile and abusive language on two separate occasions warranted disqualification from unemployment benefits).  An employee’s deliberate action in contravention of an employer’s warning also constitutes employment misconduct.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 806 (Minn. 2002) (involving failure to report injury during same shift after having been counseled and given two written warnings by employer).  Moreover, a pattern of failing to follow an employment policy demonstrates a substantial lack of concern for the employer’s interests.  See Gilkeson v. Indus. Parts and Serv., Inc., 383 N.W.2d 448, 452 (Minn. App. 1986). 

Fairview documented that Blanks was involved in at least five altercations, all of which involved Blanks using verbally abusive behavior toward co-workers and at least three of which involved Blanks physically “bumping” co-workers with his chest or shoulder.  The record clearly establishes that Blanks was aware that Fairview had a policy against disruptive and harassing conduct in the work place, he was given at least two oral and two written warnings against engaging in this type of behavior, and he engaged in verbally and physically abusive behavior with a co-worker on December 5, in contravention of Fairview’s policy and prior warnings. 

Thus, we conclude that the commissioner’s representative did not err in concluding that Blanks was terminated for employment misconduct. 


[1]  The definition of employment misconduct was amended by the legislature, effective August 1, 2003.  2003 Minn. Laws 1st Spec. Sess. ch. 3, art. 2, § 13; see Minn. Stat.        § 645.02 (2002).  But we apply the definition in effect at the time the conduct occurred.  Bray v. Dogs & Cats Ltd., 679 N.W.2d 182, 185-86 (Minn. App. 2004).  Because Blanks’s conduct occurred in December 2002, we apply the 2002 definition of employment misconduct.