Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
St. Paul-Ramsey Medical Center,
Commissioner of Economic Security,
Filed March 31, 1998
Department of Economic Security
Agency File No. 2104UC97
Penelope J. Phillips, Felhaber, Larson, Fenlon & Vogt, P.A., 610 Second Ave. S., Suite 4200, Minneapolis, MN 55402-4302 (for respondent employer)
Kent E. Todd, Department of Economic Security, 390 N. Robert St., St. Paul, MN 55101 (for respondent commissioner)
Considered and decided by Schumacher, Presiding Judge, Huspeni, Judge, and Shumaker, Judge.
Relator argues that he was denied due process because the proceedings in his case were not fully translated and that the evidence does not support the finding that he was discharged for misconduct. Because we conclude that relator was not deprived of due process and see evidence supporting the finding that he was discharged for misconduct, we affirm.
Relator Girmai Seyoum, a native of Eretria in North Africa, immigrated to this country in 1988. His native language is Tegrenia. He mastered enough English to pass the test required for citizenship in 1993, to hold a job at the Custodial Worker I level in the housekeeping department of the St. Paul-Ramsey Medical Center (SPRMC) from 1990 to 1997, to serve as a juror in an eight-day trial in 1996, and to assist with some basic translation at SPRMC.
Betty Klasen was hired by SPRMC in August 1996. After being directed to reduce staff and reallocate duties in the housekeeping department, she reviewed job descriptions and met with personnel. She told relator that her review of his duties indicated that he had only four to five hours of work to perform on an eight-hour shift, and he would therefore be allocated additional duties. Relator said he could do no more work in an eight-hour shift and asked Klasen to review his duties again. She agreed to do so, but told relator that refusal to accept the additional work would be insubordination, for which he could be terminated.
After a second review of relator's job duties, Klasen met with him on January 24, 1997, to give him his new job description. Relator spent 10 minutes apparently reading the job description. Klasen asked if he had questions, but he did not respond. Klasen then began going over the job description with him. She testified that when she began explaining the additional duties, relator became angry, stood up, threw the job description down on her desk, yelled "I do no more work * * * I sweat * * * I have enough work to do" and asked her to look at his work station again. She explained that she had already reevaluated his work load and that his refusal to do the work would be considered insubordination, for which he could be fired. Two witnesses heard relator yell, "Go ahead and fire me" and "[G]o fire me, I've been here seven years." Relator then walked out of Klasen's office, leaving the job description there. Klasen testified that she expected relator to return after he had calmed down.
For the next twelve days, however, relator and Klasen had no contact. Relator continued to report to work but did not perform the additional duties. When Klasen learned that he was not performing the additional duties, she decided to fire him. She asked the union president, Lorraine King, to be present for the termination. King asked that SPRMC provide an interpreter, but when Klasen tried to arrange for one, she was told that interpreters were available only in emergency situations.
Relator was given a termination letter stating that he was being terminated for "insubordination, refusal of work assignment and misconduct" and including a description of the January 24 meeting.
Relator then applied for reemployment insurance benefits. SPRMC wrote a letter to the Department of Economic Security stating that relator had been discharged due to insubordination, refusal of a work assignment, and misconduct, and enclosing a copy of the termination letter. Relator was notified that he was disqualified from receiving benefits.
Relator challenged his disqualification. The hearing had two sessions, separated by three weeks. At both sessions, relator was accompanied by union representatives and his own interpreter. At the beginning of the first session, the interpreter explained to the reemployment judge that he would interpret as needed.
Interpreter: If it is needed that I help him to translate * * * I will more than--I'm more than happy to do that; otherwise if he is comfortable to do it on his own, that's fine, too.
Judge: Okay, okay, so you are here to interpret, if necessary, right?
The reemployment judge then told relator, "As we go along, if you don't understand anything, you must tell me[;]" relator replied, "Okay." During the first session, when Klasen testified, the interpreter did not translate every question and answer. When the reemployment judge occasionally asked relator if he understood the testimony, relator answered in the affirmative.
Early in the second hearing session, the reemployment judge again asked relator if he understood the testimony being presented. Relator replied, through his interpreter, that he understood it generally but not specifically. The reemployment judge then asked those eliciting and presenting testimony to pause so the interpreter could translate each question and answer, remarking "otherwise we won't be able to get through this: there have been claims of due process and all kinds of problems later on." Through the remainder of the hearing, the interpreter translated on a line-by-line basis.
Klasen testified that she had never had any difficulty communicating with relator; relator testified that he had never told her he did not understand what she was saying. The documentary evidence in the record does not indicate that the area office representatives who handled relator's application for reemployment insurance benefits had any difficulty communicating with him.
The reemployment judge decided that relator had been discharged for misconduct and was disqualified. Relator challenged this determination and also alleged that he had been deprived of due process during the hearing. The representative of the Commissioner of Economic Security (commissioner's representative) found that relator had been insubordinate in refusing additional work, concluded that he had been discharged for misconduct, and also concluded that he had not been deprived of due process.
During the hearing before the reemployment judge, relator never alleged that he was being denied due process. The issue was first raised in a letter from the attorney whom relator retained after the record had been closed, requesting either reversal of the reemployment judge's decision or a remand. The commissioner's representative denied both requests and held that there had been no denial of due process.
The 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 Medical Ctr., 332 N.W.2d 25, 26 (Minn. 1983). However, reviewing courts are not bound by a commissioner's representative's conclusions of law. Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989). Here, ample evidence sustains the commissioner's representative's findings as to both relator's ability to understand English and his failure to indicate that he did not understand the proceedings.
Relator argues to this court that the interpreter should have translated every line at the first hearing session as he did at the second session. However, the transcript clearly reflects the common understanding of the reemployment judge, the interpreter, and relator that translation would be on an as-needed basis. Given relator's acquiescence in the interpreter's statement that he would translate only as necessary, and the absence of evidence in the record that relator did not understand the language, there was no deprivation of due process.
Relator also argues that he was denied due process because the reemployment judge did not continue the hearing so an interpreter could be provided. Relator, however, did not request an interpreter before either session of the hearing. He appeared with his own interpreter, and the reemployment judge permitted the interpreter to function in accord with relator's wishes throughout the hearing. Relator does not contend that his interpreter's skills were inadequate. Here, no purpose would have been achieved by a continuance for the purpose of appointing an interpreter, and there was no deprivation of due process in failing to continue the hearing.
2. Findings of Fact
The 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, 332 N.W.2d at 26. The commissioner's representative found:
[Relator] objected to the additional duties on the grounds that in his own opinion, the duties he had been performing up to that date already required him to put in a full eight hour day. [Relator] refused to perform the additional duties.
Relator does not claim that he ever performed or attempted to perform the additional duties, or that he did not know what the duties were. He argues instead that Klasen did not tell him when to start the new duties, did not finish explaining the new job description, and did not tell him to come back for further discussion. However, when relator left Klasen he was angry, refused to do additional work, and told her to go ahead and fire him. Klasen told relator at both of their meetings that refusal could lead to termination. After refusing the work, throwing down the job description, and walking out of Klasen's office, relator made no attempt to see Klasen again, resolve any questions about the additional duties, or perform them. The commissioner's representative's finding that relator refused to perform all the duties in his job description is supported by the evidence.
Relator was not deprived of due process, and the evidence supports the finding that he was discharged for misconduct.
 The misconduct is not an issue on appeal.
 The commissioner's representative stated:
We were not persuaded that [relator's] English language skills are as limited as he claims. Furthermore, [relator] was assisted in the hearing process by an interpreter and by union representation. At no point throughout the entire hearing process did [relator] or anyone acting on his behalf inform the reemployment insurance judge or the appellate office that [relator] was unable to fully participate in the hearing because he did not understand what was going on. Even if [relator] does have problems, at times, speaking and understanding English, he still is accountable for his actions. This means that [relator] had an affirmative duty to inform the judge or the appellate office that he did not understand what was happening at the hearing and that he needed additional help. This [relator] failed to do.
 The transcript indicates that relator's difficulty was not with language but with legal process: for example, even after translation he had trouble understanding the process of objecting to items offered as exhibits.
 Minn. R. 3310.2911 (1997) states that: The department [of economic security] shall provide an interpreter, when necessary, upon the request of a party. The requesting party shall notify the appellate office at least seven calendar days before the date of the hearing that an interpreter is required. If no request is made, the referee shall continue any hearing where a witness or principal party in interest is a handicapped person so that an interpreter can be appointed.
 The reemployment judge interfered when the interpreter began to converse with relator during other witnesses' testimony, when relator wanted the interpreter to interrupt the testimony to ask questions or make comments, and when relator wrote notes to the interpreter. However, the reemployment judge was not, as relator's brief implies, demonstrating a hostile attitude towards relator's deficient English skills; he was trying to maintain order during the hearing.
 In his brief, relator argues that there was a "miscommunication" between him and Klasen as to what he was supposed to do and when he was supposed to do it. However, nothing in either his testimony or Klasen's supports this argument. A party cannot shift position on appeal. Security Bank of Pine Island v. Holst, 298 Minn. 563, 564, 215 N.W.2d 61, 62 (1974) (citation omitted).