This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Eugene Kerkay,



Little Six, Inc.,


Commissioner of Economic Security,


Filed March 3, 1998


Klaphake, Judge

Minnesota Department of Economic Security

File No. 3784 UC 97

Eugene Kerkay, 3923 Bellaire Avenue, White Bear Lake, MN 55110-4535 (pro se relator)

Joseph Plumer, Plumer Law Office, 13340 Greenwich Court, Apple Valley, MN 55124 (for respondent Little Six)

Kent E. Todd, Minnesota Department of Economic Security, 390 North Robert Street, St. Paul, MN 55101 (for respondent commissioner)

Considered and decided by Randall, Presiding Judge, Klaphake, Judge, and Willis, Judge.



Pro se relator Eugene Kerkay seeks review of a decision by the respondent Commissioner of Economic Security disqualifying him from receiving reemployment insurance benefits under Minn. Stat. § 268.09, subd. 1(b) (1996), after he was discharged by his employer, respondent Little Six, Inc. Because Kerkay's conduct in pushing a co-employee amounted to nothing more than an isolated hot-headed incident and did not rise to the level of disqualifying misconduct, we reverse.



"Misconduct" has been defined as "deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee." Tilseth v. Midwest Lumber Co., 295 Minn. 372, 374-75, 204 N.W.2d 644, 646 (1973) (quoting Boynton Cab Co. v. Neubeck, 296 N.W. 636, 640 (Wis. 1941)). However, "ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed 'misconduct.'" Id. Thus, "an isolated hot-headed incident" that does not interfere with an employer's business does not rise to the level of misconduct. Windsperger v. Broadway Liquor Outlet, 346 N.W.2d 142, 144 (Minn. 1984) (employee's "temper tantrum" during argument with manager not misconduct where she did not use any profanity and argument not overheard by customers or other employees).

This isolated hot-headed incident exception may apply to minor physical confrontations. See, e.g., McCoy v. Spicer Off-Highway Axle Div., 412 N.W.2d 24, 25 (Minn. App. 1987) (employee who threw hammer onto floor during argument with supervisor not guilty of misconduct when hammer thrown away from supervisor and confrontation brief and isolated); Norman v. Rosemount, Inc., 383 N.W.2d 443, 444 (Minn. App. 1986) (no misconduct when employee became upset with supervisor during meeting, crumpled up piece of paper, threw paper at supervisor, and then walked away), review denied (Minn. May 22, 1986); Oman v. Daig Corp., 375 N.W.2d 533, 536 (Minn. 1985) (no misconduct when employee, after being repeatedly harassed by co-worker, briefly lost temper and pushed co-worker). This exception does not apply to violent, physical confrontations or to conduct that seriously endangers other people's safety. See, e.g., Shell v. Host Int'l Corp., 513 N.W.2d 15, 18 (Minn. App. 1994) (employee's pushing of supervisor, who fell and sustained minor injury, constituted misconduct when employee admitted pushing supervisor and, although employee claimed supervisor had initiated confrontation, supervisor and another employee testified assault was unprovoked); Hayes v. Wrico Stamping Griffiths Corp., 490 N.W.2d 672, 673, 675 (Minn. App. 1992) (employee's act of driving vehicle through parking lot in dangerous manner constituted misconduct); Hines v. Sheraton Ritz Hotel, 349 N.W.2d 329, 330 (Minn. App. 1984) (employee committed disqualifying misconduct by engaging in shoving and shouting match with another employee in elevator).

The incident in this case occurred while Kerkay was in the break room watching a basketball game on television. A co-worker, who tapped him several times on the shoulder and asked him to move so that others could see, approached him. A few minutes later, Kerkay approached the co-worker, grabbed him by the arms, and asked him, "What would you say if I would do the same thing to you, if I would lay a hand on you like you did me?" Kerkay then pushed the co-worker, who fell to the floor. Kerkay left the area, and when he saw the co-worker a few moments later, he immediately apologized, and the two shook hands.

The commissioner's representative found that Kerkay committed disqualifying misconduct because he "was aggressive and angry and * * * engaged in a physical confrontation with a co-worker which could have resulted in injury and incited 'other aggressive behavior.'"

We disagree. Although other co-workers were present, there is no evidence that Kerkay's actions could have incited other aggressive behavior. In addition, the co-worker was not injured and got up immediately, suggesting that Kerkay's actions were not particularly violent or aggressive. Further, Kerkay apologized immediately afterwards. Thus, Kerkay's actions were isolated, brief, and did not injure anyone or otherwise interfere with or affect his employer's customers. Under these facts, Kerkay's conduct amounted to nothing more than an isolated hot-headed incident. We therefore conclude that the commissioner's representative erred in determining that Kerkay committed disqualifying misconduct. See Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989) (ultimate determination of whether employee disqualified is question of law upon which this court is "free to exercise its independent judgment").


The commissioner argues that Kerkay's brief on appeal refers to incidents not testified to at the evidentiary hearing and provides other details of his employment that are not part of the record. See Minn. R. Civ. App. P. 110.01 (record on appeal consists of papers and exhibits included in proceedings before trial court). Even if Kerkay's brief refers to matters not properly part of the record, his statements are not material or relevant to our decision here and have not affected it.

The decision of the commissioner is reversed.