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STATE OF MINNESOTA IN COURT OF APPEALS A10-1965 Roger Potter, Relator, vs. Northern Empire Pizza, Inc., Respondent, Department of Employment and Economic Development, Respondent. Filed September 6, 2011 Affirmed Ross, Judge Department of Employment and Economic Development File No. 25279714-3 Roger L. Potter, Crookston, Minnesota (pro se relator) Northern Empire Pizza, Inc., Fargo, North Dakota (respondent employer) Lee B. Nelson, Department of Employment and Economic Development, St. Paul, Minnesota (for respondent Department)

Considered and decided by Stauber, Presiding Judge; Stoneburner, Judge; and Ross, Judge. SYLLABUS Because no single-incident exception to employment misconduct exists and employers may require employees to refrain from physical contact arising from workplace disputes, an employee's single-incident poking of his coworker during an

argument constitutes employment misconduct under Minnesota Statutes section 268.095, subdivision 6(a) (2010). 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 jobending 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-yearold 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, "[W]hat 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 2

order, and then "instead of saying[,] 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.

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