This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).





Bonnie M. Smith,


Department of Employment and Economic Development,


Filed August 23, 2005


Stoneburner, Judge


Department of Employment and Economic Development

File No. 13479 04


Bonnie M. Smith, P.O. Box 503, Elysian, MN 56028-0503 (pro se relator)


Itron Inc., 2818 North Sullivan Road, Spokane, WA, 99216-1834 (respondent employer)


Linda A. Holmes, Department of Employment and Economic Development, Suite E200, First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101 (for respondent Department)


            Considered and decided by Peterson, Presiding Judge; Halbrooks, Judge; and Stoneburner, Judge.


U N P U B L I S H E D  O P I N I O N




Relator Bonnie M. Smith challenges the determination of a senior unemployment review judge (SURJ) that relator was discharged for misconduct and therefore disqualified from receiving unemployment benefits.  Because the record supports the SURJ’s decision, we affirm.



Relator was hired on June 16, 2003, as a senior production assembler by Itron, a company that specializes in electronics manufacturing.  Itron’s “zero-tolerance” policy against sexual harassment is explicitly stated in the employee handbook:

It is the company’s policy to maintain a work environment free from offensive or degrading comments or conduct. . . . Employees have a right to be free from sexual harassment.  Itron will not condone actions or words which would be considered sexual harassment or coercive. 


            On December 15, 2003, relator signed a form acknowledging that she attended harassment-sensitivity training, understood the company’s policy on harassment, and had a responsibility not to engage in behaviors that constituted harassment.

            The following March, relator was given a verbal disciplinary warning for “[b]ringing pornography into the workplace and creating a harassing environment for others,” as a result of viewing and passing on to another employee a novelty “camera” containing a pornographic picture of men.  The employee to whom relator passed the item complained to the supervisor.

            On June 14, 2004, another employee lodged a sexual-harassment complaint against relator.  Supervisors investigated the matter by talking to coworkers, who verified that relator, during work time, used inappropriate language and made sexual jokes and remarks that they found offensive.  In an interview with a supervisor, relator admitted that she had told some sexual jokes to the complaining coworker, but said she stopped when the coworker asked her to stop.  The employer concluded that relator and the male coworker who brought the complaint against her had mutually engaged in inappropriate sexual banter.  The employer discharged relator and the complaining employee for violating the company’s sexual-harassment policy. 

            Relator applied for unemployment benefits and was initially determined to be disqualified from receiving benefits because relator was discharged for employment misconduct.  Relator appealed, and a ULJ reversed, concluding that the discharge was for reasons other than employment misconduct and that relator was entitled to benefits.  The employer appealed, and a SURJ reversed the ULJ, determining that relator committed employment misconduct and was disqualified from receiving benefits.  This appeal by writ of certiorari followed.



On appeal, this courtexamines the decision of the SURJ rather than the decision of the ULJ.[1]  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  In doing so, it views the findings in the light most favorable to the decision and will not disturb them when they are reasonably sustained by the evidence.  Ress v. Abbott Nw. Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).  This court defers to the ability of the SURJ to weigh any conflicting evidence and to make credibility determinations.  See Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995).

A person discharged from employment because of employment misconduct is disqualified fromreceiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4(1) (Supp. 2003).[2]  Employment misconduct is defined as “any intentional, negligent, or indifferent conduct, on the job or off the job (1) that evinces a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee, or (2) that demonstrates a substantial lack of concern for the employment.”  Minn. Stat. § 268.095, subd. 6(a) (Supp. 2003).  But “[i]nefficiency, inadvertence, simple unsatisfactory conduct, . . . [or] conduct an average reasonable employee would have engaged in under the circumstances . . . [is] not employment misconduct.”  Id. 

Whether a discharged employee has engaged in employment misconduct is a mixed question of fact and law.  Schmidgall v. Filmtec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  Whether the employee committed a particular act is a question of fact, see Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997), and this court defers to the SURJ’s factual findings if the record reasonably sustains them.  Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996).  But whether an act constitutes employment misconduct is a question of law, which this court reviews de novo.  Id.

This court has previously held that sexual harassment constitutes employment misconduct.  See, e.g., Redalen v. Farm Bureau Life Ins. Co., 504 N.W.2d 237, 238 (Minn. App. 1993) (sexual harassment of employees may constitute misconduct); Reed v. Minn. Dep’t of Transp., 422 N.W.2d 537, 540 (Minn. App. 1988) (holding that harassment “by itself, constituted misconduct connected with the workplace”), review denied (Minn. June 29, 1988). 

Relator argues that her termination was the result of an angry coworker’s retaliation rather than the result of her behavior.  The SURJ based the determination of disqualification on the fact that relator “continued to talk about sexual matters in the workplace” even though she “had been warned for sexual harassment and told she must refrain from any behaviors others may consider harassing.”  Relator’s supervisors testified that coworkers verified that they consistently heard relator telling offensive jokes and stories.  One supervisor also testified that relator admitted that she told some sexual jokes to a coworker after she had received the oral warning.  This testimony reasonably supports the SURJ’s finding that relator was discharged for employment misconduct for sexual harassment, which disqualifies her from receiving unemployment benefits. 


[1] The term “senior unemployment review judge” has replaced “commissioner’s representative” for all SURJ decisions released after August 1, 2004.  See 2004 Minn. Laws ch. 183, § 71.

[2] The revisor’s office inadvertently substituted the term “ineligible for” for the term “disqualified from” in Minn. Stat. § 268.095, subds. 1, 4, 7, 8(a) (Supp. 2003).  See Minn. Stat. § 268.095, subds. 1, 4, 7, 8(a) (2002) (using term “disqualified from”); 2003 Minn. Laws 1st Spec. Sess. ch. 3, art. 2, § 11 (making other changes to Minn. Stat. § 268.095, subd. 1, but retaining term “disqualified from”); 2003 Minn. Laws 1st Spec. Sess. ch. 3, art. 2, § 20(j), (k) (directing revisor to change the term “disqualified from” to “ineligible for” only in Minn. Stat. § 268.095, subd. 12, and then to renumber to Minn. Stat. § 268.085, subd. 13b).