Charles H. Ho, Relator, vs. Swift & Company, Respondent, Department of Employment & Economic Development, Respondent.

Charles H. Ho, Relator, vs. Swift & Company, Respondent, Department of Employment & Economic Development, Respondent. A05-1761, Court of Appeals Unpublished, April 25, 2006.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1761

 

 

Charles H. Ho,

Relator,

 

vs.

 

Swift & Company,

Respondent,

 

Department of Employment & Economic Development,

Respondent.

 

 

Filed April 25, 2006

Affirmed

Hudson, Judge

 

Department of Employment & Economic Development

File No. 3131 05

 

 

Charles H. Ho, 615 Grand Avenue, Worthington, Minnesota 56187 (pro se relator)

 

Swift & Company, 1700 Northeast Trunk Highway 60, Worthington, Minnesota 56187 (respondent)

 

Linda A. Holmes, Department of Employment & Economic Development, 332 Minnesota Street, Suite E200, St. Paul, Minnesota 55101-1351 (for respondent Department of Employment & Economic Development)

 

            Considered and decided by Hudson, Presiding Judge; Klaphake, Judge; and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N

HUDSON, Judge

Relator Charles Ho challenges the decision of the senior unemployment review judge (SURJ) that Ho is disqualified from unemployment benefits because he was discharged for misconduct.  We affirm.

D E C I S I O N

Relator Charles Ho worked as a meat packer for respondent Swift & Company from 1994 until 2005, when he was discharged.  When Ho applied for unemployment benefits, a department adjudicator determined that he was disqualified because he had been discharged for misconduct.  Ho appealed; after a telephone hearing and de novo review, an unemployment law judge also determined that Ho was disqualified.  Ho appealed again; after de novo review, an SURJ affirmed that determination.

Misconduct includes "any intentional, negligent, or indifferent conduct, on the job or off the job . . . that displays clearly a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee."  Minn. Stat. § 268.095, subd. 6(a) (2004).  This definition is exclusive; no other definition applies.  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).  But factual findings are reviewed in the light most favorable to the decision and will not be disturbed if there is evidence that "reasonably tends to sustain" them.  Id.

            The SURJ made findings on four incidents that occurred during the final six months of Ho's employment.  Documentary evidence in the record supports the findings.  In August 2004, Ho kicked over a chair and struck a co-worker in the back.  Ho was warned, in writing, that continuing this behavior could lead to his discharge.  On December 6, 2004, Ho grabbed a female co-worker with whom he had been on friendly terms by the waist and called her a sexually offensive name.  She struck Ho in the face.  Ho was not warned but was given a copy of the company's sexual harassment policy.  On December 10, 2004, Ho was involved in an altercation with another co-worker whose cart was in Ho's way.  Ho pushed the cart; the co-worker pushed Ho.  Ho received a second written warning.

The last incident, on January 4, 2005, resulted in Ho's discharge.  On that occasion, a co-worker who was Ho's friend returned late from a break.  Ho objected to the supervisor's discipline of the co-worker by yelling, "That's not fair" and "He's not late," and waving his hands.  The supervisor twice told Ho to return to his work on the line, saying, "It's not your problem."  The co-worker also attempted to get Ho to drop the matter and go back to work.  When Ho refused to go back to work, he was discharged. 

An employer has the right to reasonably expect that an employee will go to his work station and do his work when directed to do so and will not refuse to work because he does not approve of the discipline of another employee.  Ho's conduct "display[ed] clearly a serious violation of the standards of behavior the employer ha[d] the right to reasonably expect of [him]."  See Minn. Stat. § 268.095, subd. 6(a).

Affirmed.