Opinion
No. C9-96-626.
Filed August 13, 1996.
Appeal from the Department of Economic Security, File No. 10016UC95.
Thomas F. Andrew, (for Relator).
Kent E. Todd, (for Commissioner of Economic Security).
Gary R. Kelly, (for USX Corporation).
Considered and decided by Lansing, Presiding Judge, Kalitowski, Judge, and Willis, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1994).
UNPUBLISHED OPINION
Kenneth Koski appeals from a decision of the Commissioner's representative disqualifying him from the receipt of certain reemployment insurance benefits. Because the record reasonably supports the determination that Koski was discharged for misconduct, we affirm.
FACTS
At the time of his discharge from USX Corporation in 1995, Kenneth Koski worked as a shift manager, a position that he had held for approximately ten years. Koski's duties in this position included the enforcement of the company's policies against smoking and sexual harassment in the workplace.
USX policy prohibits smoking in elevators. To advise workers of this policy, the company posted stickers, measuring slightly less than three-by-eleven inches, which read:
REMOVAL OR DESTRUCTION OF ANY COMPANY PROPERTY (INCLUDING NOTICES) IS A VIOLATION OF USX GENERAL RULES REGULATIONS NO SMOKING IN ELEVATOR
The company's policy against sexual harassment prohibits graffiti, as well as other offensive conduct.
In order to monitor violations of the company's policies against smoking in elevators and the writing of offensive graffiti on elevator walls, USX installed a video camera in a company elevator in September 1995. The video camera recorded three instances on two different days when Koski entered the elevator and removed three "no smoking" stickers from one of the walls. Koski admits to having removed the three stickers. He further admits that at least two of the stickers did not have any graffiti on them. He claims, however, that one of the three stickers had what he believed to be an offensive comment written on it. He claims to have removed the other two stickers because he "thought they were just an invitation to write graffiti on them and they were poorly placed." USX asserts that there was no graffiti on any of the stickers that Koski removed.
USX discharged Koski on September 30, 1995, on the stated ground that he had destroyed company property. Koski subsequently filed a claim for reemployment insurance benefits. A reemployment insurance judge determined that Koski qualified for benefits. A representative of the Commissioner of the Department of Economic Security later reversed that decision, finding that Koski's excuse lacked credibility and concluding that USX had discharged Koski "for reasons amounting to misconduct."
DECISION
Review of the decision of the Commissioner's representative presents a mixed question of fact and law. Colburn v. Pine Portage Madden Bros., 346 N.W.2d 159, 161 (Minn. 1984). We must defer to the findings of the Commissioner's representative, even when those findings differ from those of the reemployment insurance judge. Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995). The issue of whether the findings support a determination of "misconduct," for the purpose of disqualifying a discharged employee from reemployment insurance benefits, is a question of law that we may consider independently. Ress v. Abbott N.W. Hosp., 448 N.W.2d 519, 523 (Minn. 1989).
Koski maintains that he removed the three "no smoking" stickers in the belief that he was acting in accordance with the company's policy against sexual harassment. He challenges the Commissioner's representative's finding that this explanation lacked credibility, and he argues that his behavior demonstrated a good-faith error in judgment and should therefore fall outside the applicable definition of "misconduct." See Tilseth v. Midwest Lumber Co., 295 Minn. 372, 374-75, 204 N.W.2d 644, 646 (1973) (defining "misconduct").
We conclude that the record contains evidence reasonably tending to support the Commissioner's representative's findings. The stickers contained prominent warnings that their removal constituted a violation of the company's rules and regulations. Koski admittedly removed at least two stickers that had no graffiti written on them because he "thought they were just an invitation to write graffiti on them," yet he did not remove any stickers from the other walls of the elevator. The Commissioner's representative found that Koski's explanation for removing the stickers was "simply not believable." We are required to defer to the Commissioner's findings on credibility. Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995). It is not within our province to reweigh credibility on appeal. Blau v. Masters Restaurant Assocs., 345 N.W.2d 791, 793 (Minn.App. 1984) (citing Nyberg v. R.N. Cardozo Bro., 243 Minn. 361, 364, 67 N.W.2d 821, 823 (1954)).
We further conclude that the Commissioner's representative properly determined that Koski's behavior constituted "misconduct" under Minn. Stat. § 268.09, subd. 1(b) (Supp. 1995). As a shift manager at USX, Koski was responsible for enforcing the company's rules and regulations. Because of his position, his conduct would have been particularly likely to cause other workers to disregard the company's policies, and this potential for dissension could have adversely affected the company. See Ress, 448 N.W.2d at 524 (considering dissension as factor relevant to determination of misconduct). Under these circumstances we hold that Koski was discharged for misconduct and is disqualified from receiving reemployment insurance benefits under section 268.09, subdivision 1.