Yvonne K. Hill, Relator, vs. Deborah Lehnus, D.D.S., Respondent, Commissioner of Economic Security, Respondent. C1-98-1595, Court of Appeals Unpublished, March 30, 1999.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-98-1595

Yvonne K. Hill,

Relator,

vs.

Deborah Lehnus, D.D.S.,

Respondent,

Commissioner of Economic Security,

Respondent.

Filed March 30, 1999

Affirmed

Peterson, Judge

Department of Economic Security

Agency File No. 3763UC98

Yvonne Hill, 1529 Adrian Street, Apartment Six, St. Paul, MN 55102 (relator pro se)

Debra K. Revzen, Briggs & Morgan, P.A., W2200 First National Bank Building, St. Paul, MN 55101 (for respondent Deborah Lehnus, D.D.S.)

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

Considered and decided by Davies, Presiding Judge, Peterson, Judge, and Foley, Judge.[*]

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

PETERSON, Judge

Relator Yvonne Hill challenges the commissioner's representative's determination that she was discharged from employment for misconduct. We affirm.

FACTS

Hill worked for Dr. Deborah Lehnus, D.D.S., doing cleaning and general office work, from November 1995 until April 1, 1998. On April 1, 1998, Hill became upset when a coworker left a note stating that certain cleaning had not been done. Hill grabbed the coworker, threw her against a file cabinet, threw her to the floor, and punched her in the face. When Lehnus tried to pull Hill away from the coworker, Hill kicked the coworker in the stomach and hit Lehnus in the nose. The same day, Lehnus discharged Hill from employment for physically assaulting Lehnus and the coworker.

Hill filed a claim for reemployment insurance benefits with the Department of Economic Security. A department claims representative determined that Hill was discharged from employment for misconduct and denied her claim. Hill appealed to a reemployment insurance judge, and a hearing was scheduled for June 2, 1998. Because a restraining order had been issued against Hill prohibiting her from being in Lehnus's presence, Hill requested that the hearing be rescheduled. The hearing was rescheduled for a telephone conference on June 15, 1998. Hill did not participate in the telephone conference, and no one presented any testimony. Based on the documetary evidence in the file, the reemployment insurance judge concluded that Hill was discharged from employment for misconduct and affirmed the denial of benefits. Hill appealed to respondent Commissioner of Economic Security. A commissioner's representative concluded that Hill was discharged from employment for misconduct and affirmed the reemployment insurance judge's decision. Hill filed this certiorari appeal, seeking review of the commissioner's representative's decision.

D E C I S I O N

The commissioner's representative determined that Hill had a full and fair opportunity to participate in the June 15, 1998, telephone conference, and that a new evidentiary hearing was not in order.

"[T]he Commissioner's representative is accorded deference when determining whether to remand for additional evidence." McLean v. Plastics, Inc., 378 N.W.2d 104, 107 (Minn. App. 1985). Hill's excuse for failing to participate in the telephone conference before the reemployment insurance judge is that she did not have a telephone at her residence, so she arranged to receive the telephone call at her parents' residence. At the scheduled conference time, she was downstairs doing laundry, and no one came to get her. Hill's excuse for failing to participate in the telephone conference is insufficient to warrant reversal of the commissioner's representative's determination that Hill had an adequate opportunity for an evidentiary hearing. See id. (upholding commissioner's representative's decision not to remand case when employee's excuse for failing to appear at hearing before reemployment insurance judge was that he thought hearing date was Friday, not Thursday).

II.

An employee discharged for misconduct is disqualified from receiving reemployment compensation benefits. Minn. Stat. § 268.09, subd. 10 (Supp. 1997). Whether an employee committed disqualifying misconduct is a mixed question of fact and law. Colburn v. Pine Portage Madden Bros., Inc., 346 N.W.2d 159, 161 (Minn. 1984). The fact findings of the commissioner's representative must be sustained on appeal if there is evidence reasonably supporting them. Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995). The final determination of whether an employee committed misconduct, however, is a question of law upon which this court is free to exercise its independent judgment. Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).

A claimant who is discharged from employment by an employer shall not be disqualified from benefits "unless the claimant was discharged because of misconduct that interfered with and adversely affected that employment." Minn. Stat. § 268.09, subd. 10(1). Misconduct is intentional conduct showing a disregard of:

(1) the employer's interest;
(2) the standards of behavior that an employer has the right to expect of the employee; or
(3) the employee's duties and obligations to the employer. Misconduct also includes negligent conduct by an employee demonstrating a substantial lack of concern for the employment. Inefficiency, inadvertence, simple unsatisfactory conduct, or poor performance as a result of inability or incapacity are not misconduct.

Minn. Stat. § 268.09, subd. 12 (Supp. 1997).

The commissioner's representative found that: (1) Hill grabbed a coworker, threw her against a file cabinet, threw her to the floor, and punched her in the face; and (2) when Lehnus tried to pull Hill away from the coworker, Hill kicked the coworker in the stomach and hit Lehnus in the nose. The evidence submitted by Lehnus supports the commissioner's representative's findings regarding Hill's conduct. Hill's conduct, which could have seriously injured the coworker and Lehmus, was intentional conduct showing a disregard of standards of behavior that her employer had the right to expect of her. Therefore, the commissioner's representative properly concluded that Hill committed misconduct. See Shell v. Host Intern. (Corp), 513 N.W.2d 15, 18 (Minn. App. 1994) (employee committed misconduct when he pushed supervisor, causing supervisor to fall over a desk, knock over a chair and objects on the desk, and land against the wall and the floor).

III.

Hill attached to her brief on appeal: (1) a copy of a charge of discrimination she filed with the St. Paul Department of Human Rights; and (2) payroll records from her employment with Lehnus. Those documents were not part of the administrative record before the commissioner's representative, and they are not properly before this court. See Appelhof v. Commissioner of Jobs & Training, 450 N.W.2d 589, 591 (Minn. App. 1990) (party may not introduce new evidence before this court; evidence not received during administrative proceeding may not be reviewed as part of the record on appeal).

Affirmed.

[*] Retired judge of the Minnesota Court of Appeals, serving by apointment pursuant to Minn. Const. art. VI, § 10.