This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-862

 

 

Mustapha Sheriff,

Relator,

 

vs.

 

Extendicare Homes, Inc.,

Respondent,

 

Commissioner of Employment and Economic Development,

Respondent.

 

 

Filed February 8, 2005

Affirmed

Halbrooks, Judge

 

 

Department of Employment and Economic Development

File No. 20210 03

 

Mustapha Sheriff, 1915 Clinton Avenue South, Apartment 211, Minneapolis, MN 55404 (pro se relator)

 

Extendicare Homes, Inc., 4415 West 36 1/2 Street, St. Louis Park, MN 55416 (respondent)

 

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

 

 

            Considered and decided by Shumaker, Presiding Judge, Randall, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Pro se relator challenges the commissioner’s representative’s decision that he is disqualified from receiving unemployment benefits because he was discharged for employment misconduct, specifically sexual harassment.  In addition to disputing various factual findings, relator claims that (1) his employer did not give him warnings about his conduct; (2) he did not have a chance to review evidence submitted by his employer at the benefits hearing; and (3) the employer presented evidence about facts occurring after his discharge.  Because the record reasonably supports the commissioner’s representative’s conclusion that relator was discharged for employment misconduct for sexually harassing his co-workers, we affirm. 

FACTS

            Relator Mustapha Sheriff was employed as a cook and dietary aide by respondent Extendicare Homes, Inc. from October 22, 2000, through November 17, 2003.  His problematic behavior began in December 2002, when relator made sexual statements to female housekeepers employed by respondent.  According to one of the housekeepers, who is Mexican, “[relator] would sometimes place a banana between two buns or between two eggs” and say “panocha,” which is a vulgar term for “vagina” in Mexican Spanish.  After an oral complaint was made, relator was warned to stop “making inappropriate sexual statements.”  Despite the warning, relator continued to make inappropriate sexual comments to female employees.  For example, nearly one year later, in October-November 2003, relator sent a note with sexual connotations to a female employee, a nurse, who had previously rejected relator’s requests for a date.  The note stated, “I want to ground your coffee as soon as possible.”  Relator admits to writing the note, but claims that it was only in response to the nurse’s use of the phrase on a previous occasion.  The nurse interpreted the note as having a sexual overtone and reported it to her supervisor.  In addition, another female employee complained that relator was making inappropriate advances toward her.  Relator was subsequently discharged on November 17, 2003.

            Relator applied for unemployment benefits.  A Minnesota Department of Employment and Economic Development (department) adjudicator determined that he was disqualified from receiving benefits because of employment misconduct.  Upon relator’s appeal, an unemployment law judge (ULJ) determined that relator was disqualified from receiving unemployment benefits because he had been discharged for employment misconduct for making “inappropriate verbal remarks” to other employees and that this behavior continued even after relator had been warned about it.  On appeal from that decision, the department’s commissioner’s representative affirmed the ULJ’s decision and determined that relator committed employment misconduct by “continu[ing] to engage in an inappropriate manner and . . . sexually harass[ing] female co-workers after being warned such behavior must stop.”  After filing his pro se brief with this court, relator submitted a number of letter “motions,” each of which was denied.  This appeal follows. 

D E C I S I O N

            This court reviews the findings of the commissioner’s representative rather than those of the unemployment law judge.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  In doing so, we view 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 Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).  We defer to the ability of the commissioner’s representative to weigh any conflicting evidence and to make credibility determinations.  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).[1]  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.  This court has previously held that sexual harassment constitutes employment misconduct under the statute.  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) (“[H]arassment of the female workers, by itself, constituted misconduct connected with the workplace.”), review denied (Minn. June 29, 1988). 

Whether an employee committed disqualifying misconduct is a mixed question of law and fact.  Colburn v. Pine Portage Madden Bros., Inc.,346 N.W.2d 159, 161 (Minn. 1984).  Whether the employee committed a particular act is a question of fact, which this court reviews for clear error.  See Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  Whether the act constitutes misconduct is a question of law, which this court reviews de novo.  Ress, 448 N.W.2d at 523.  Because sexual harassment is considered employment misconduct under the statute—and because relator does not argue to the contrary—we focus only on the factual disputes between relator and his former employer and the other issues raised by relator in his brief. 

I.          Findings of Fact

Relator makes a number of arguments challenging the factual determinations of the commissioner’s representative.  Relator claims that the “coffee letter” was written in response to a letter he had received from the nurse and that it was written with her full permission.  Relator also disputes the validity of the housekeeper’s written statement, claiming that it “look[s] like she is lying or making up a false statement.”  But the commissioner’s representative made a credibility determination against relator and in favor of his former employer.  As the representative explained:

While the testimony of [relator] and the employer conflict, the employer provided the more credible testimony and evidence [exists that] [relator] continued to engage in an inappropriate manner and . . . sexually harass[] female co-workers after being warned such behavior must stop.  [Relator’s] denial of the incidents is not believable.  We are fully persuaded [relator’s] conduct evinced a serious violation of the standards of behavior an employer has the right to reasonably expect of an employee and a substantial lack of concern for his employment. 

 

Because the commissioner’s representative made a credibility determination in favor of the employer and the evidence supports the allegations of sexual harassment, the factual findings here will not be disturbed.  The record reasonably supports the commissioner’s representative’s finding that relator was discharged for employment misconduct because he sexually harassed his co-workers.  He is therefore disqualified from receiving unemployment benefits. 

II.        Other Issues Raised

Relator argues that he did not receive a warning before being discharged, as allegedly required by the company’s employee handbook.  But the record reflects that on several occasions relator was warned that his behavior was unacceptable.  In December 2003, relator’s immediate supervisor responded to the allegations made by the housekeepers about his use of the Spanish vulgarity “panocha.”  In her notes, the supervisor wrote, “[Relator] was instructed that this [type of behavior] is never to happen again or it will result in immediate [discharge].”  Given the finding that relator was told his behavior must stop and that the finding was reasonably sustained by the evidence, relator’s argument that he was not given a warning before his discharge is without merit. 

Relator also claims that he did not have a chance to review any of the evidence presented by his former employer at the unemployment-benefits hearing.  But the record reflects that relator did not subpoena any of his former employer’s internal documentation before the hearing.  See Minn. R. 3310.2914, subp. 1 (2003) (allowing for the use of subpoenas by a party to compel the production of documents).  Nor did he request copies of the documentary evidence to be submitted at the hearing by his former employer.  Id., subp. 2 (“following demand by another party,” each party shall “identify any written documents that the party intends to introduce at the hearing.”).  In addition, both parties had a chance to review the 15 exhibits submitted prior to the hearing before the ULJ.  While relator alleges that he never had a chance to examine the documents, the record shows otherwise. 

Finally, relator contends that his former employer presented evidence at the hearing that was prepared after his discharge.  During the hearing before the ULJ, relator specifically objected to the admission of the housekeeper’s statement dated November 18, 2003, one day after his discharge.  The ULJ overruled relator’s objection and found the statement to be relevant “as [the housekeeper’s] statement as to what happened.”  While the statement was written after relator’s discharge, it clearly relates to events occurring during his employment and directly relates to the reasons why he was discharged in the first place—sexual harassment.  As a result, the housekeeper’s statement alleging sexual harassment is relevant to whether relator was discharged for employment misconduct.  See Minn. R. 3310.2921 (2003) (requiring the ULJ to “ensure that relevant facts are clearly and fully developed”); Minn. R. 3310.2922 (2003) (noting that the ULJ “may receive any evidence which possesses probative value . . . if it is the type of evidence on which reasonable, prudent persons are accustomed to rely in the conduct of their serious affairs”).

            Affirmed.