This opinion will be unpublished and

may not be cited except as provided by

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








Michael A. Petelin,





United Parcel Service, Inc.,



Department of Employment and Economic Development,




Filed July 25, 2006


Lansing, Judge


Minnesota Department of Employment and Economic Development

File No. 1371405



Michael A. Petelin, 1625 Garland Lane North, Plymouth, MN 55447-2726 (pro se relator)


United Parcel Service, Inc., c/o TALX UCM Services, Inc., P.O. Box 283, St. Louis, MO 63166-0283 (respondent)


Linda A. Holmes, Lee B. Nelson, Minnesota Department of Employment and Economic Development, First National Bank Building, 332 Minnesota Street, Suite E200, St. Paul, MN 55101-1351 (for respondent Department of Employment and Economic Development)



            Considered and decided by Willis, Presiding Judge; Lansing, Judge; and Randall, Judge.

U N P U B L I S H E D   O P I N I O N


            By writ of certiorari, Michael Petelin challenges the decision of the unemployment law judge that Petelin was discharged for employment misconduct.  Because, on this record, Petelin’s limited and reciprocal horseplay with a coworker demonstrates unsatisfactory conduct but not employment misconduct within the meaning of Minn. Stat. § 268.095, subd. 6(a) (2004), we reverse.


            Michael Petelin worked as a plant engineering mechanic for United Parcel Service, Inc. (UPS), from October 23, 2000 until his discharge on August 25, 2005.  UPS discharged Petelin as a result of sportive interaction with a coworker, A.P.  The interaction occurred while A.P. and Petelin were walking to the break room together.  A.P., who was nearing the end of his workday, was assuming playful sparring stances.  Petelin believed A.P. was inviting him to return the fake sparring punches and threw a punch that grazed A.P.’s collarbone.  The interaction lasted a few seconds, and A.P. and Petelin continued to the break room where they socialized together.  According to another employee who was observing them, A.P. rubbed his collarbone and said, “you were sup[p]osed to hit me in the chest.” 

            The next morning, as the engineers prepared for their workday, A.P. mentioned the incident to a controls engineer who then told an engineering manager.  The engineering manager met with Petelin and terminated his employment.  UPS confirmed the termination by letter, stating that the company discharged Petelin for creating a hostile work environment.

            After the discharge, Petelin filed a grievance with his union.  As a result of the grievance process, Petelin’s discharge was changed to a suspension without pay and Petelin returned to work.  Because Petelin’s thirty-nine-day suspension exceeded thirty calendar days, it is considered a discharge for purposes of unemployment compensation.  See Minn. Stat. § 268.095, subd. 5(a) (2004) (defining discharge to include suspension that exceeds thirty days).  But, as a result of the reinstatement, the benefits would be limited to the period of suspension.

When Petelin applied for unemployment benefits, a department adjudicator determined that he had been discharged for misconduct.  Petelin appealed and, after a telephone hearing, an unemployment law judge (ULJ) determined that he had been discharged for misconduct.  In response to Petelin’s request for reconsideration, a ULJ issued an order of affirmation from which Petelin now appeals.


Employment misconduct includes “any intentional, negligent, or indifferent conduct, on the job or off the job . . . that displays clearly a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee.”  Minn. Stat. § 268.095, subd. 6(a) (2004).  “Inefficiency, inadvertence, simple unsatisfactory conduct, or a single incident that does not have a significant adverse impact on the employer . . . are not employment misconduct.”  Id.  Whether an employee’s acts constitute misconduct is a question of law, which this court reviews de novo.  Schmidgall v. FilmTec Corp., 644 N.W. 2d 801, 804 (Minn. 2002).  

During the telephone hearing, only Petelin and UPS’s human-resources supervisor testified.  The human-resources supervisor had not been personally involved in either the incident or the termination.  The sources of information about the incident are limited to Petelin’s testimony and written statements by A.P., by an employee who witnessed the incident, by another employee who saw them in the break room, by the supervisor who spoke with A.P. and obtained A.P.’s statement, and by the manager who terminated Petelin.  Collectively, this evidence does not amount to an incident that constitutes employment misconduct.

Petelin testified that he saw A.P. and that A.P.

was all excited . . . and he was like jumping around and, you know, throwing . . . friendly punches.  I didn’t see any vicious behavior or anything on his side[; neither did I have] any sort of feelings of that type. . . . I did engage him into this horseplay and I had intention to, you know, offer him his friendly punches into my arms, you know, to respond to it the same and, you know, one of the friendly hit[s], you know, went through his arm and gently touched him in the chest.  And that, you know, this continued for maybe another five, ten seconds, and then we both decided to go take a break.


The manager’s written statement corroborates this account.  He said that, when he interviewed Petelin the next day, Petelin told him that A.P. “approached him in a sparring stance with his fists up to block a punch.  [Petelin] then went on to say he punched through [A.P.’s] block and hit him in the chest.”  

L.B., an employee who witnessed the incident, wrote that, after the incident,

I saw [Petelin] and [A.P.] walking towards the . . . break room.  [A.P.] was rubbing his collar bone and saying that you were sup[p]osed to hit me in the chest.  He did not seem re[a]lly upset or mad, just unhappy with the aim.  It looked [l]ike [h]orseplay to me.


A second employee who saw A.P. and Petelin in the break room stated that “they were not [disgruntled] tow[a]rd each other while walking into [the] break room.” 

These accounts conflict with the supervisor’s statement about what A.P. reported the following day.  The supervisor wrote that

[A.P.] said, “You need to do something about [Petelin].”. . . I said, “Why, what happen[ed]?” . . . [A.P.] said, “He hit me . . . I was walking behind him . . . on the way to the break room.  And [Petelin] turned around and said, “Do you want to fight?”  [A.P.] replied, “NO” and then told me that “[Petelin] punched him in the chest.”  [A.P.] then said to [Petelin], “Leave me alone.” 


A.P.’s written statement, which provides few details, does not directly confirm either account but states that Petelin hit him in the chest, “grazing the collarbone.” 

The ULJ determined, by a preponderance of the evidence, that Petelin and A.P. engaged in horseplay in which A.P. “was hit hard enough to cause some pain and to upset him enough to cause him to complain the next day.”  A.P.’s written statement does not indicate that he was upset or that he complained, only that he did not hit Petelin back and that it hurt.  Taking into account the preponderant testimony and the ULJ’s finding that the incident was good-natured horseplay, A.P.’s minimal report that indicated Petelin grazed his collarbone and it hurt, and the absence of evidence to support the supervisor’s hearsay account, we cannot conclude that Petelin’s acts amounted to conduct that “display[ed] clearly a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee.”  Minn. Stat. § 268.095, subd. 6(a).

We note that, in cases in which physical acts between employees have been held to be misconduct, the acts were not limited and friendly horseplay but were instead a hostile altercation.  See, e.g., Isse v. Alamo Rent-a-Car, 590 N.W. 2d 137, 138 (Minn. App. 1999) (analyzing argument between two employees in which one grabbed other by shirt and pushed him against wall), review denied (Minn. Apr. 20, 1999); Shell v. Host Int’l Corp., 513 N.W. 2d 15, 16-17 (Minn. App. 1994) (analyzing incident in which employee who alleged provocation swore at his supervisor and then pushed him over desk, resulting in small cut).  Petelin testified that he saw no vicious behavior on A.P.’s part and that he had no hostile feelings himself.  The testimony on the absence of hostility is undisputed.  While we do not condone rambunctious behavior in the workplace, we cannot conclude on this record that Petelin’s act created a hostile work environment that constituted employment misconduct.