Filed August 13, 1996.
Appeal from the Department of Economic Security, File No. 9025UC95.
Bryce Thompson, (Pro Se) Potlatch Corp., (Respondent).
Kent E. Todd, (for Respondent Commissioner of Economic Security).
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This opinion will be unpublished and may not be cited except as provided by Minn.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).
The Commissioner's representative determined that the employee's disruptive behavior constituted misconduct disqualifying him from receiving reemployment insurance benefits. The record demonstrates that the employer met its burden of proving misconduct, and we affirm.
Potlatch Corporation employed Bryce Thompson as a forklift operator from 1980 until 1995. Beginning in 1991 Thompson exhibited disruptive behavior at work, for which he was warned and eventually fired.
The disruptive incidents included (1) a November 1991 confrontation with another employee in which Thompson yelled at him and called him a liar (resulting in a warning); (2) a January 1994 argument with his supervisor in which Thompson called him a "dumb ass" (resulting in a three-day suspension); (3) an August 1995 incident of Thompson following another employee, pointing at him, and making harassing gestures; and (4) a September 1995 exchange with other employees in which Thompson expressed dissatisfaction with a supervisor in an angry and threatening manner, specifically threatening one of the employees by saying "I will remember you for this."
Following the last incident, Potlatch issued Thompson a disciplinary notice directing him to complete a psychological/psychiatric evaluation, complete any treatment recommendations, follow all rules of conduct, and refrain from harassing, threatening, or intimidating any other employees. The notice indicated that Thompson would be immediately discharged if he failed to comply with these requirements during the next two years.
A few days later, Thompson confronted an employee, accused him of lying, and stated that he was going to put the employee's name on a list and turn it over to the FBI. The employee reported that he felt intimidated and concerned.
Thompson was discharged for his confrontive and intimidating behavior, which violated the conditions of the disciplinary notice.
An employee who is discharged for misconduct is disqualified from receiving reemployment insurance benefits.
Minn. Stat. § 268.09, subd. 1(b) (1994). An employer has the burden of proving by a preponderance of the evidence that the employee committed disqualifying misconduct. Ress v. Abbott Northwestern Hosp., 448 N.W.2d 519, 523 (Minn. 1989).
We review the Commissioner's representative's factual findings in the light most favorable to the decision, and we will not disturb the findings if there is evidence in the record that reasonably tends to sustain them. Id. The ultimate determination on whether an employee committed misconduct is, however, a question of law on which we exercise independent judgment. Id.
Disruptive conduct in the work place or threats to coworkers may constitute misconduct. See Booher v. Transport Clearings of Twin Cities, Inc., 260 N.W.2d 181, 183 (Minn. 1977) (concluding that employee committed misconduct by failing to follow directions of supervisor to cease actions causing dissension and disruption among co-workers); Feia v. St. Cloud State College, 309 Minn. 564, 565, 244 N.W.2d 635, 636 (1976) (concluding that college custodian committed misconduct, after being warned, by continuing to express her disapproval of nude models, drawings, and paintings, disrupting employer's art program). The evidence relied on by the Commissioner's representative supports the conclusion that Thompson's repeated disruptive, confrontational, and intimidating behavior constituted misconduct.
Thompson urges that we reject the Commissioner's determination because (1) he was the person harassed, and Potlatch's employee relations supervisor committed perjury at the hearing; (2) the findings are based on unacceptable hearsay; (3) he was discharged not for misconduct but for a failure to take drugs prescribed by a psychiatrist recommended by Potlatch; (4) the reemployment insurance judge and the Commissioner's representative failed to consider his evidence of harassment; and (5) he was misled into believing Potlatch would not challenge his claim and consequently was unprepared at the hearing.
We have reviewed these contentions and do not find a basis for reversing the Commissioner's determination because (1) the Commissioner's representative and not this court has the power to make credibility determinations, Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995); (2) hearsay is admissible in reemployment insurance hearings, Pichler v. Alter Co., 307 Minn. 522, 523, 240 N.W.2d 328, 329 (Minn. 1976); Seemann v. Little Crow Trucking, 412 N.W.2d 422, 426 (Minn.App. 1987); Vang v. A-1 Maintenance Serv., 376 N.W.2d 479, 482 (Minn.App. 1985); (3) the documents offered to demonstrate discharge for reasons other than misconduct are not part of the record, see Plowman v. Copeland, Buhl Co., 261 N.W.2d 581, 583 (Minn. 1977); (4) the record does not support allegations that the reemployment insurance judge denied Thompson an opportunity to present evidence, and the Commissioner's representative had no authority to consider new evidence, see Minn. Stat. § 268.105, subd. 3 (Supp. 1995); and (5) there is no evidence in the record to support Thompson's claim that he was coerced into believing that Potlatch would not challenge his claim, nor did Thompson raise this claim below, see Jaakola v. Duluth/Superior Area Educ. Television Corp., 374 N.W.2d 215, 217 (Minn.App. 1985).