This opinion will be unpublished and

may not be cited except as provided by

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






Curtis Walvatne,





Otter Tail Power,



Commissioner of Employment and

Economic Development,



Filed January 25, 2005

Crippen, Judge


Department of Employment and Economic Development

File No. 1401 04


Curtis Walvatne, P.O. Box 1036, Fergus Falls, MN 56537 (pro se relator)

Bruce Gilbert Gerhardson, Ottertail Power Company, 215 Cascade Street, Fergus Falls, MN 56537-2801 (respondent Otter Tail Power)


Lee B. Nelson, Linda A. Holmes, Department of Employment and Economic Development, 390 North Robert Street, St. Paul, MN 55101 (for respondent Department of Employment and Economic Development)


            Considered and decided by Toussaint, Chief Judge; Huspeni, Judge;* and Crippen, Judge.

U N P U B L I S H E D   O P I N I O N


            Relator challenges the decision by the commissioner’s representative that he was disqualified from receiving unemployment benefits because he had been discharged for misconduct.  Because the record supports the particular findings that relator disputes, we affirm.


            Relator Curtis Walvatne was employed as an employee services specialist for Otter Tail Power Company from 1985 through December 1, 2003.  He was responsible for conducting affirmative action and harassment training sessions, imposing disciplinary actions, resolving conflicts, and handling employee terminations.

            Over the years, relator himself was disciplined several times for inappropriate behavior.  In 1996, he apologized to his supervisor for negativity and anger outbursts.  In 1999, he was disciplined for making derogatory comments to a coworker, and he agreed to participate in anger management counseling.

            In the incident that precipitated his discharge, relator participated in a staff meeting on October 8, 2003.  He made inappropriate comments about the company president and vice president, intimidated and threatened staff with loss of their jobs, and called staff derogatory and obscene names.  The employees reported the behavior to their union, which disclosed it to the employer.  After an investigation, the employer discharged relator for his history of inappropriate behavior and his conduct during the October 8 meeting.

            Relator subsequently applied for unemployment benefits, but a misconduct-discharge disqualification was determined by the department and affirmed by the unemployment law judge and the commissioner’s representative. 


            “Whether an employee engaged in conduct that disqualifies the employee from unemployment benefits is a mixed question of fact and law.”  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  This court will defer to decisions by the commissioner’s representative.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  The appellate court will review the “factual findings in the light most favorable to the commissioner’s decision and will not disturb them as long as there is evidence that reasonably tends to sustain those findings.”  Schmidgall, 644 N.W.2d at 804.  On determinations of witness credibility, we must defer to the commissioner’s representative.  Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995).

            Initially, relator contends that it was error to find that he was discharged for misconduct because he has shown that he really was terminated to cover up harassment in the workplace that he was seeking to expose.  But the issue here is whether relator should be disqualified from receiving unemployment benefits, not whether the company properly discharged him.  Windsperger v. Broadway Liquor Outlet, 346 N.W.2d 142, 143 (Minn. 1984).  If there is adequate evidence as to the misconduct that provides a basis for the discharge, and the commissioner’s representative credited those grounds as the basis for the misconduct, relator’s arguments as to contrary grounds are unimportant.

            Relator challenges the sufficiency of the company’s investigations into his inappropriate conduct in the 1999 incident, as well as at the 2003 meeting.  He contends that he was not given the opportunity to participate in the investigation of these incidents, and that the department did not call the employees whom he had contacted.  He argues that the letter written by the union representative as to the 2003 meeting did not properly represent what occurred, and he cites evidence by three people attending the meeting who did not believe his comments were inappropriate.

            Relator has not specified how the testimony of additional witnesses would contradict the findings that were made.  And insofar as his claims challenge the credibility of investigation evidence, the commissioner resolved the credibility issues against him.  The commissioner’s representative was also required to make a credibility determination as to whether relator’s conduct was inappropriate.  The representative specifically recognized that the testimony by relator and the employer conflicted and found that the employer provided the more credible testimony.  The record provides adequate evidence to support the findings by the commissioner’s representative that relator’s conduct “not only undermined his position as an administrator of the employer’s harassment policy but his actions fostered fear and distrust among the employees.”  The representative properly determined that relator’s conduct evinced an intentional violation of the standards of behavior the employer had the right to expect.

            The commissioner’s representative did not err in determining that relator engaged in employment misconduct and was disqualified from receiving unemployment benefits.


* Retired judges of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.