Donald C. Oien, 14840 140th Avenue Northeast, Foley, MN 56329 (relator pro se)

Michael S. Jesse, Benton County Attorney, 531 Dewey Street, Foley, MN 56329 (for respondent County)

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

Considered and decided by Schumacher, Presiding Judge, Parker, Judge, and Huspeni, Judge.

Relator Donald Oien was discharged from his job because, in violation of specific warnings from his employer not to do so, during a conversation with a subordinate he referred to his suspension for retaliating against the subordinate, who had complained of sexual harassment by Oien. Oien now appeals from the decision of the Commissioner of Economic Security that he was discharged from his job for misconduct and therefore disqualified from receiving reemployment insurance benefits. We affirm.

Misconduct is conduct showing

such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer.

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)). The employer has the burden of proving misconduct. Ress, 448 N.W.2d at 523.

Oien argues that many of the Commissioner's representative's findings of fact are unsupported by the record. After careful review of the record, including the transcript of the hearing before the reemployment insurance judge, we must conclude that the record contains evidence reasonably tending to sustain the representative's findings. Although Oien claims that evidence he submitted shows the representative's findings were incorrect, the representative believed the contrary evidence submitted by the employer. We defer to the Commissioner's representative's credibility determination. See Hanke v. Safari Hair Adventure, 512 N.W.2d 614, 617 (Minn. App. 1994) (this court generally defers to Commissioner's representative's credibility determinations).

Oien next argues that his reference to his suspension in the conversation with the subordinate did not constitute misconduct because it was inadvertent. However, Oien had been warned at least twice not to refer to his suspension in any discussion with the subordinate because such references could constitute reprisal discrimination under the employer's sexual harassment policy. The employer also warned Oien that any such reference could result in discipline, including discharge. Oien nonetheless told his subordinate that he was ending their conversation because "he did not want to risk another suspension." Under these circumstances, Oien's reference to his suspension violated a reasonable order from his employer and constituted misconduct. See McGowan v. Executive Express Transp. Enterprises, 420 N.W.2d 592, 596 (Minn. 1988) (employee's refusal to follow reasonable order from employer constituted misconduct); see also Feia v. St. Cloud State College, 309 Minn. 564, 564, 244 N.W.2d 635, 636 (1976) (employee who continued to complain about working conditions to everyone despite employer's warnings to stop and offer of transfer committed misconduct). We hold the evidence to be sufficient to support the Commissioner's order.

Affirmed.