Potter v. Northern Empire Pizza, Inc.

805 N.W.2d 872, 2011 Minn. App. LEXIS 115, 2011 WL 3903200
CourtCourt of Appeals of Minnesota
DecidedSeptember 6, 2011
DocketNo. A10-1965
StatusPublished
Cited by10 cases

This text of 805 N.W.2d 872 (Potter v. Northern Empire Pizza, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Potter v. Northern Empire Pizza, Inc., 805 N.W.2d 872, 2011 Minn. App. LEXIS 115, 2011 WL 3903200 (Mich. Ct. App. 2011).

Opinion

OPINION

ROSS, Judge.

Roger Potter poked a coworker in the ribcage after the coworker threw Potter’s keys. Potter’s manager discharged him and Potter began collecting unemployment benefits. The Department of Employment and Economic Development deemed his job-ending incident to be employment misconduct and an unemployment law judge agreed, ending Potter’s benefits. Potter argues on appeal that poking his coworker was not a “serious violation,” was simple unsatisfactory conduct, was what a reasonable employee would have done, was the result of a good faith error in judgment, and was caused by his manager’s deficiencies. Because physical contact between employees arising from conflict in the workplace is serious employment misconduct, and because Potter has identified no exception applicable to employment misconduct decisions, we affirm.

FACTS

Sixty-three-year-old Roger Potter was fired from his job as a delivery driver for Northern Empire Pizza, Inc., doing business as Domino’s Pizza, after he poked 22-year-old coworker Dylan Kaste in his ribcage. Potter describes the incident as follows: While he and Kaste were working overlapping shifts, Kaste grabbed Potter’s keys, which were lying near a delivery bag. “[W]ith a loud voice,” Kaste said, “[Wjhat are these keys doing here[?][T]hey don’t belong here on the bag.” Kaste then “threw” the keys onto a desk. Potter was “a little bit ticked” that Kaste threw his keys. Kaste filled a pizza-delivery order, and then “instead of sayingt,] could you please move, he just [told Potter] move, now.” Potter stepped aside, but because he was “ticked off,” he poked Kaste in his side as he passed. Kaste “spun around” and yelled, “you suck.” Potter describes the incident as a “spur-of-the-moment decision” that any “senior” in his position would have made. The pizza delivery company discharged Potter the next evening and suspended Kaste. The sole reason for his termination was the single poking incident.

Potter began withdrawing unemployment benefits from the Department of Employment and Economic Development (DEED). But DEED later determined that he was ineligible for benefits and ordered him to repay $1,207. Potter appealed, and an unemployment law judge (ULJ) held that he was discharged for employment misconduct and therefore ineligible for benefits. After reconsidering, the ULJ affirmed his decision. Potter appeals by certiorari to this court.

ISSUE

Was Potter’s poking of his coworker in the ribcage employment misconduct?

ANALYSIS

When reviewing a ULJ’s benefits decision, we may remand, reverse, or modify if the relator’s substantial rights were prejudiced by fact findings that are unsupported by substantial evidence or by a decision that is affected by an error of law, made upon unlawful procedure, or is arbitrary and capricious. Minn.Stat. § 268.105, subd. 7(d)(3) — (6) (2010).

We must decide whether the ULJ appropriately determined that Potter was discharged for employment misconduct. The general rule is that an employee who is fired because of employment misconduct is not entitled to unemployment benefits. MinmStat. § 268.095, subd. 4(1) (2010). [875]*875Employment misconduct means “any intentional, negligent, or indifferent conduct, on the job ... that displays clearly” either “a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee” or “a substantial lack of concern for the employment.” Id., subd. 6(a) (2010). In concluding that Potter committed employment misconduct by poking Kaste, the ULJ found that Potter was aware of his employer’s reasonable expectations of nonviolence and that poking Kaste “was a clearly serious violation” of those expectations. We review a ULJ’s legal determination of whether an act committed by an employee constitutes employment misconduct de novo. Skarhus v. Davanni’s Inc., 721 N.W.2d 340, 344 (Minn.App.2006). In doing so, we defer to the ULJ’s findings if they are substantially supported by the record. Id.

Potter challenges the ULJ’s misconduct determination first by claiming that his conduct was not a “serious violation” as defined by the employment-misconduct statute. He also argues that even if it were a serious violation, three exceptions apply: it was “simple unsatisfactory conduct;” a “reasonable employee” would have done the same thing; and it was a “good faith error[] in judgment.” He also argues that his manager caused the incident. None of these arguments persuades us to reverse.

Serious Violation of Reasonable Work Standards

Potter first contends that poking Kaste was not a “serious violation of the standards of behavior the employer has the right to reasonably expect of the employee.” See Minn.Stat. § 268.095, subd. 6(a)(1). He emphasizes that the occurrence lasted only “a moment.” It is true that a judicially created exception formerly existed for “isolated hotheaded incidents” that did not interfere with an employer’s business. See generally Windsperger v. Broadway Liquor Outlet, 346 N.W.2d 142, 144-45 (Minn.1984). And for a short time between 2003 and 2008, the statutory definition incorporated a version of that exception. See Minn.Stat. § 268.095, subd. 6(a) (Supp.2003); Id. (2004); Id. (2006); Id. (Supp.2007); Id. (2008). But the current statute as most recently amended does not provide a single-incident exception. Id. (2010).

It will help to briefly review the rise and fall of the single-incident exception to employment misconduct. Before the legislature passed a statutory definition of employment misconduct, courts defined it. Courts included a single-incident exception to employment misconduct, Tilseth v. Midwest Lumber Co., 295 Minn. 372, 374-75, 204 N.W.2d 644, 645-46 (1973), which later developed into a so-called “hotheaded incident” exception, Windsperger, 346 N.W.2d at 145. We applied this exception, holding, for example, that it was not employment misconduct for employees, in a single incident, to throw a crumpled piece of paper or even a hammer. See Norman v. Rosemount, Inc., 383 N.W.2d 443, 445-47 (Minn.App.1986) (crumpled paper), review denied (Minn. May 22, 1986); McCoy v. Spicer Off-Highway Axle Div., 412 N.W.2d 24, 25, 27 (Minn.App.1987) (hammer). This was after we had held that it was not misconduct even for an employee to push a coworker. Oman v. Daig Corp., 375 N.W.2d 533, 536 (Minn.App.1985). But the supreme court opined in McGowan v. Executive Express Transp. Enters., Inc., that Windsperger should be considered the “outer limit” of the exception. 420 N.W.2d 592, 595 (Minn.1988). We later held in Shell v. Host Int’l (Corp.) that any violence in the workplace is misconduct notwithstanding its occurrence as only a single incident. 513 N.W.2d 15

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805 N.W.2d 872, 2011 Minn. App. LEXIS 115, 2011 WL 3903200, Counsel Stack Legal Research, https://law.counselstack.com/opinion/potter-v-northern-empire-pizza-inc-minnctapp-2011.