A06-284

Samuel M. Post, III,

Relator,

vs.

Plaza Management Company, Inc.,

Respondent,

Department of Employment and Economic Development,

Respondent.

Filed January 30, 2007

Affirmed

Willis, Judge

Department of Employment and Economic Development

File No. 16093 05

Samuel M. Post III, 504 Main Street West, Nevis, MN 56467-4144 (pro se relator)

Plaza Management Company, Inc., Walker Foods, Inc., 15 South 13th Avenue East, Duluth, MN 55802-2223 (respondent)

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

Considered and decided by Willis, Presiding Judge; Peterson, Judge; and Wright, Judge.

U N P U B L I S H E D O P I N I O N

WILLIS, Judge

In this certiorari appeal, relator challenges the decision of the unemployment-law judge (ULJ) affirming his earlier determination that relator was disqualified from receiving unemployment benefits because relator was discharged for employment misconduct. Relator argues that (1) his conduct was not intentional or deliberate and therefore does not constitute misconduct; (2) the evidence does not support the determination that he acted in an insubordinate or aggressive manner; (3) his conduct was a single incident that did not have a significant adverse impact on the employer; and (4) he was not given the opportunity at the hearing to question the employer about an alleged disciplinary warning of which he was unaware. Because substantial evidence supports the ULJ’s determination of misconduct, we affirm.

FACTS

Relator Samuel Post worked from October 20, 2004, through September 30, 2005, as the delicatessen manager at a store owned by respondent Plaza Management Company, Inc. Plaza has an employment handbook that prescribes disciplinary action if an employee acts in an insubordinate manner or harasses a co-worker. Post received a copy of the handbook.

On September 30, the store manager and assistant manager were reviewing the store’s budget in the manager’s office when they received a message from one of the store’s owners that Post, appearing to be upset, had called the bakery and delicatessen supervisor and demanded figures on the transfer of products between the bakery and delicatessen departments. The manager met with Post and described Post’s demeanor as “somewhat persistent” and “loud”; Post described his own behavior as “very determined” and “quite possibly nervous.” The manager testified that when he told Post that the figures Post had requested were not yet available, Post “started getting very irate . . . [s]tanding over [the manager’s] desk and hollering in [his] face.” Post testified that he was “not trying to be disruptive, [but] very thorough.”

Post later confronted a bakery employee because he believed that bakery employees were improperly crediting the bakery department with funds that should have been credited to the delicatessen. The bakery employee, in a statement in the record, said that Post “appeared agitated,” demanded invoices that she did not have, “slammed a pan into the cookie sheet [she] was working on,” and told her that she would be “in trouble” if she did not give him the invoices.

The bakery employee complained to the assistant manager, and Post was called back into the manager’s office. According to the manager, Post became “quite irate,” “very loud,” and “disruptive,” and would not let the manager speak. The assistant manager stated that he had “never encountered that kind of . . . disrespect.” Post testified that he felt “verbally attacked” for speaking to the bakery employee and had been called a “liar.” He believed that the managers did not understand that he was trying to report fraudulent paperwork.

Post was suspended for the rest of the day and was told to “change his attitude.” He said that he wanted to stay at work; the manager told him that he could not and that if he “kept this up,” the police would be called. Post left, and three days later Plaza notified him that he was discharged. Post applied for unemployment benefits. An adjudicator determined that Post was discharged for misconduct and denied benefits. Post appealed the decision to a ULJ, who also concluded that Post had committed employment misconduct and was disqualified from receiving unemployment benefits. On reconsideration, the ULJ affirmed his decision. This certiorari appeal follows.

D E C I S I O N

This court on review may affirm a ULJ’s decision, remand it for further proceedings, or reverse or modify it

if the substantial rights of the petitioner may have been prejudiced because the findings, inferences, conclusion, or decision are:

(1) in violation of constitutional provisions;

(2) in excess of the statutory authority or jurisdiction of the department;

(3) made upon unlawful procedure;

(4) affected by other error of law;

(5) unsupported by substantial evidence in view of the entire record as submitted; or

(6) arbitrary or capricious.

Minn. Stat. § 268.105, subd. 7(d) (Supp. 2005).

A person who is discharged from employment because of employment misconduct is disqualified from receiving unemployment benefits. Minn. Stat. § 268.095, subd. 4(1) (Supp. 2005). Whether an employee committed a particular act is a question of fact. Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997). But 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).

Employment misconduct includes “any intentional, negligent, or indifferent conduct, on the job or off the job (1) that displays clearly a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee, or (2) that displays clearly a substantial lack of concern for the employment.” 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.

Post argues that Plaza failed to show that he “engaged in conduct that evinced an intent to [] ignore or pay no attention to” the duties of his job, as required by Houston v. Int’l Data Transfer Corp., 645 N.W.2d 144, 150 (Minn. 2002). But the Houstoncourt was construing language in a definition of misconduct that is no longer part of the statute; the legislature amended the statutory definition of employment misconduct in 2003. 2003 Minn. Laws 1st Spec. Sess. ch. 3, art. 2, § 13, at 1473-74. The statutory definition in effect on the date of discharge controls. Brown v. Nat’l Am. Univ., 686 N.W.2d 329, 332 (Minn. App. 2004), review denied (Minn. Nov. 16, 2004).

Substantial evidence in the record supports the ULJ’s finding that Post engaged in “insubordinate, disrespectful, and disruptive behavior.” Post’s actions of speaking loudly and persistently to the manager and assistant manager and physically confronting the bakery employee were disrespectful and disruptive. This court has held, under previous definitions of employment misconduct, that a physical confrontation constitutes misconduct. See, e.g., Shell v. Host Int’l Corp., 513 N.W.2d 15, 17 (Minn. App. 1994) (holding that pushing of supervisor was disqualifying misconduct); Tester v. Jefferson Lines, 358 N.W.2d 143, 145 (Minn. App. 1984) (holding that yelling unprovoked obscenities and blocking buses during strike constitutes misconduct), review denied (Minn. Mar. 13, 1984). We conclude that physical confrontation of a co-worker is a serious violation of the standards of behavior that an employer has the right to reasonably expect of an employee. And in weighing the evidence, the ULJ found credible the manager’s and assistant manager’s testimony, which was corroborated by their contemporaneous written statements. See Jenson v. Dep’t of Econ. Security, 617 N.W.2d 627, 631 (Minn. App. 2000) (stating that this court defers to credibility determinations made by the decisionmaker), review denied (Minn. Dec. 20, 2000).

Post also argues that his conduct on September 30 amounted to “a single incident that [did] not have a significant adverse impact” on his employer, so that he should not be disqualified from receiving benefits. See Minn. Stat. § 268.095, subd. 6(a). The ULJ made no findings on this issue. But even if Post’s actions did constitute “a single incident,” Post’s inability to control his temper, especially with a co-worker, had a significant adverse impact on Plaza’s ability to maintain a cooperative, respectful workplace environment. See, e.g., Skarhus v. Davanni’s, Inc.,721 N.W.2d 340, 344 (Minn. App. 2006) (finding that a single incident of employee theft had a significant adverse impact on the employer and did not fall within the single-act exception); cf. Pierce v. DiMa Corp., 721 N.W.2d 627, 630 (Minn. App. 2006) (holding that a single incident violating the employer’s cash-register policy, which did not involve theft or mishandling money, did not have a significant adverse impact on the employer). The evidence substantially supports the ULJ’s determination that Post’s conduct “clearly and seriously violated standards of behavior Plaza had a right to reasonably expect . . . and clearly displayed a substantial lack of concern for his employment so as to amount to employment misconduct and disqualification.”

Post contends that his behavior did not constitute employment misconduct because it did not meet the company handbook’s definition of insubordination, which company representatives stated at the hearing was the reason for his discharge. But the handbook also contains a definition of harassment that includes oral abuse, and Plaza initially alleged that Post was terminated for both insubordination and threatening a co-worker. Post also admitted at the hearing that he knew that insubordination, being disruptive, and threatening behaviors were prohibited in the workplace.

Post alternatively maintains that Plaza did not discharge him for misconduct but rather in reprisal for his discovery of an unauthorized transfer of credit from his department to another department. Although the record is inconclusive on whether such a transfer occurred, even if it did, no evidence supports Post’s theory that his claim of such a transfer was a reason for his discharge.

Finally, Post argues that he received a high performance rating in his last evaluation and that the ULJ did not allow him to rebut Plaza’s evidence of a disciplinary warning he received in April 2005. But the company handbook does not require progressive discipline, and the ULJ made no finding that the warning contributed to the ULJ’s determination of disqualifying misconduct.

Affirmed.