Charles L. Turchick, Relator, vs. Harold Sadoff, Respondent, Commissioner of Economic Security, Respondent.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480 A. 08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C7-99-669

Charles L. Turchick,
Relator,
 
vs.
 
Harold Sadoff,
Respondent,
 
Commissioner of Economic Security,
Respondent.

 

Filed October 26, 1999
Affirmed
Schumacher, Judge

Department of Economic Security
File No. 7997UC98

Charles L. Turchick, 2112 Portland Avenue South, Minneapolis, MN 55404 (pro se relator)

Harold Sadoff, 400 Second Avenue South, Suite 400, Minneapolis, MN 55401 (pro se respondent)

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

 

Considered and decided by Schumacher, Presiding Judge, Randall, Judge, and Kalitowski, Judge.

 

U N P U B L I S H E D   O P I N I O N

SCHUMACHER

, Judge

Relator Charles L. Turchick challenges a disqualification determination, contending that the determination of disqualifying misconduct was unreasonable and that the commissioner's representative should have remanded to allow Turchick to introduce and question respondent Harold Sadoff about a prior inconsistent statement. We affirm.

 

FACTS

Turchick worked for Sadoff as a legal secretary. On the morning of October 16, 1998, Sadoff told Turchick to open up a new file right away. Sadoff also told Turchick to give the new file priority over the other files Turchick was working on, but Turchick continued working on a different file before turning to the new file. Before he finished opening the new file, Turchick went to lunch.

Shortly after Turchick returned from lunch, Sadoff questioned him about the status of the new file. Turchick had not finished opening it, and Sadoff questioned his use of time. Turchick became angry, started yelling, and began advancing toward Sadoff. Feeling threatened, Sadoff backed away from Turchick toward a doorway that separated the reception area from the rest of the offices. When Sadoff went through the doorway, he attempted to close the door to keep Turchick away from him, but Turchick pushed on the door, preventing Sadoff from closing it fully. Sadoff's paralegal heard Turchick yelling at Sadoff, found Turchick trying to push the door open and Sadoff trying to push it closed, and joined Sadoff in pushing on the door to keep Turchick from coming through. When Turchick kept pushing on the door, Sadoff fired him.

 

D E C I S I O N

On appeal, this court reviews the decision of the commissioner's representative, not the decision of the reemployment insurance judge. Fujan v. Ruffridge-Johnson Equip., 535 N.W.2d 393, 395 (Minn. App. 1995). We will affirm if the findings of fact "are not without support in the evidence" and if "the conclusion on those facts is not contrary to the statutory mandate." Colburn v. Pine Portage Madden Bros., 346 N.W.2d 159, 161 (Minn. 1984).

Turchick argues that it was "unreasonable" for the commissioner's representative to have affirmed the disqualification determination because Sadoff's testimony was "so rife with contradictions that no reasonable person could accept his version of the facts." But "[w]hen the parties have presented conflicting evidence on the record, this court must defer to the Commissioner's ability to weigh the evidence; we may not weigh that evidence on review." Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995). The record contains ample evidence to support all the commissioner's representative's factual findings; as a result, we must accept those findings even though Turchick disputes some of them.

A discharged employee is disqualified from receiving benefits if the discharge resulted from misconduct that interfered with and adversely affected the employment. Minn. Stat. § 268.095, subd. 4(1) (1998). The relevant statute defines misconduct in part as "intentional conduct showing a disregard of * * * the standards of behavior that an employer has the right to expect of the employee." Minn. Stat. § 268.095, subd. 6 (1998). This court has held that

[a] violent assault on a supervisor or manager in response to reasonable supervision is misconduct as a matter of law because it creates danger in the workplace and it interferes with the employer's business.

Shell v. Host Int'l (Corp.)

, 513 N.W.2d 15, 17 (Minn. App. 1994). As a result, the commissioner's representative was correct to disqualify Turchick from receiving benefits.

Turchick argues that his actions were not misconduct, but merely a "hotheaded" incident. But as the commissioner's representative points out, this court has held that the "hotheaded incident" exception to misconduct is no longer good law. Isse v. Alamo Rent-A-Car, 590 N.W.2d 137, 139-40 (Minn. App. 1999), review denied (Minn. April 20, 1999).

Turchick also argues that the commissioner's representative should have remanded the case to the reemployment insurance judge to allow Turchick to introduce and question Sadoff about evidence from the notes of the department's adjudicator. Turchick contends that Sadoff pushed him during the confrontation; Sadoff testified that he did not. Turchick contends that the adjudicator's notes taken during a telephone conversation with Sadoff indicate that Sadoff admitted putting his hands on Turchick. This prior inconsistent statement damages Sadoff's credibility so badly, according to Turchick, that the outcome of the hearing might have been different had it been admitted.

But Turchick's confidence that the notes would change the outcome is misplaced. The adjudicator's notes indicate that Sadoff said, "I only put my hands on him because he was coming at me." The statement in the adjudicator's notes is consistent with Sadoff's testimony that he felt threatened by Turchick's advance. The statement thus does not challenge the essential fact of this case, which is that Turchick reacted to Sadoff's criticism in a belligerent, violent, and potentially dangerous way.

The commissioner's representative has "broad discretion * * * in questions of remand." Zielinski v. Ryan Co., 379 N.W.2d 157, 161 (Minn. App. 1985). In this case, where the material Turchick seeks to add to the record seems unlikely to change the outcome, it does not appear the commissioner's representative abused her discretion in failing to order a remand. Cf. Erickson v. Super Valu, 343 N.W.2d 698, 701 (Minn. App. 1984) (upholding refusal to order rehearing where "[t]he commissioner's representative reasoned that the facts which were not previously brought out would not be likely to change the outcome of the case"). Turchick committed disqualifying misconduct, and there was no reason to remand the case.

 

Affirmed.