This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA IN COURT OF APPEALS A14-1139
Kelly Smith, Relator,
vs.
Hoff Diamonds and Gems, Inc., Respondent,
Department of Employment and Economic Development, Respondent.
Filed February 2, 2015 Affirmed Peterson, Judge
Department of Employment and Economic Development File No. 32077224-3
Kelly M. Smith, Ortonville, Minnesota (pro se relator)
William G. Cottrell, Cottrell Law Firm, Mendota Heights, Minnesota (for respondent Hoff Diamonds and Gems, Inc.)
Lee B. Nelson, Department of Employment and Economic Development, St. Paul, Minnesota (for respondent department)
Considered and decided by Larkin, Presiding Judge; Peterson, Judge; and Hudson,
Judge. UNPUBLISHED OPINION
PETERSON, Judge
This certiorari appeal is from an unemployment-law judge’s decision that relator is
ineligible for unemployment benefits because he was discharged from his employment
for employment misconduct. We affirm.
FACTS
Relator Kelly Smith worked as a jeweler for respondent Hoff Diamonds and
Gems, Inc., from February 2013 through December 28, 2013. His primary job duties
were to manufacture, repair, and polish jewelry. In mid-December 2013, Hoff
Diamond’s owner, Steven Hoff, spoke to relator about concerns he had about relator’s
attitude and conduct toward his coworkers.
On December 27, 2013, relator became frustrated while working on a ring. He
approached the office manager and, using profane language, told her that he was not
going to work on the ring anymore. He then dropped the ring on her desk and walked
away. On December 28, 2013, relator used profane language when he complained to
Hoff about the way that work orders were formatted. Also on December 28, relator’s
paycheck did not include pay for five hours of overtime that relator had worked. Relator
became angry and went to the store manager’s office. Using a profane adjective, relator
told the store manager that she was a thief. The store manager reviewed relator’s work
hours, acknowledged that she made a mistake, and told relator that she would have
another check issued to him.
2 Hoff Diamonds discharged relator because of his inability to get along with his
coworkers and his conduct on December 27 and 28. Relator sought unemployment
benefits, and respondent department of employment and economic development issued a
determination of ineligibility. Relator appealed this determination, and an
unemployment-law judge (ULJ) conducted a hearing and concluded that relator is
ineligible for benefits because he was discharged from employment for employment
misconduct. The ULJ affirmed this determination on reconsideration, and this certiorari
appeal followed.
DECISION
When reviewing the decision of a ULJ, this court may affirm the decision, remand
for further proceedings, or reverse or modify the decision if the relator’s substantial rights
were prejudiced because the conclusion, decision, findings, or inferences are, among
other reasons, unsupported by substantial evidence in the record. Minn. Stat. § 268.105,
subd. 7(d)(5) (2014). Substantial evidence is “(1) such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion; (2) more than a scintilla of
evidence; (3) more than some evidence; (4) more than any evidence; or (5) the evidence
considered in its entirety.” Minn. Ctr. for Envtl. Advocacy v. Minn. Pollution Control
Agency, 644 N.W.2d 457, 466 (Minn. 2002). This court reviews factual findings in the
light most favorable to the decision and defers to the ULJ’s credibility determinations.
Skarhus v. Davanni’s Inc., 721 N.W.2d 340, 344 (Minn. App. 2006).
“Employment misconduct means any intentional, negligent, or indifferent conduct
. . . that displays clearly: (1) a serious violation of the standards of behavior the employer
3 has the right to reasonably expect of the employee; or (2) a substantial lack of concern for
the employment.” Minn. Stat. § 268.095, subd. 6(a) (2014). Employment misconduct
does not include inefficiency or inadvertence, simple unsatisfactory conduct, conduct an
average reasonable employee would have engaged in, poor performance because of
inability or incapacity, or good-faith errors in judgment. Id., subd. 6(b)(2)-(6) (2014).
Whether an employee committed misconduct is a mixed question of fact and law. Stagg
v. Vintage Place Inc., 796 N.W.2d 312, 315 (Minn. 2011). Whether the employee
committed a specific act is a fact question, reviewed in the light most favorable to the
decision and affirmed if supported by substantial evidence. Skarhus, 721 N.W.2d at 344.
Whether the employee’s act constitutes employment misconduct is a question of law
subject to de novo review. Stagg, 796 N.W.2d at 315.
Relator argues that the ULJ should not have credited the testimony of the
employer’s witnesses that relator swore on December 27 and 28 because written
statements that the witnesses prepared three months before the hearing did not state that
he swore. Relator contends that the witnesses did not testify that he swore until the ULJ
specifically asked whether he swore at them. Relator also contends that the witnesses
were not credible because a video recording of the December 27 incident when he told
the office manager that he was not going to work on a ring anymore showed no
aggression on his part and no reaction by the office manager or any nearby customers to
anything that he was saying. Relator argues that if he had acted the way that the office
manager testified he acted, the video recording would have shown her and the customers
reacting in a shocked manner.
4 Regardless of the content of the witnesses’ written statements and the video
recording, all three of the employer’s witnesses testified that relator used profanity during
their conversations with him on December 27 and 28, and the ULJ specifically found that
the employer’s witnesses’ testimony was more credible than relator’s testimony. We
defer to the ULJ’s credibility determinations, and the employer’s witnesses’ testimony is
substantial evidence that relator used profanity during conversations with three coworkers
during his final days of employment.
Relator argues that Hoff and his attorney tried to pass off notes that Hoff created
the day before the hearing as if they were the original notes that Hoff created following
conversations with relator about his conduct. Although relator’s argument on appeal is
not complete, he appears to claim that Hoff falsified the recreated notes. This argument
was presented to the ULJ on reconsideration, however, and the ULJ found that “[t]here
was no evidence that Hoff falsified the notes” and “Hoff testified that he could not find
the original notes, and reconstructed them from his memory.” More importantly, the ULJ
also stated on reconsideration that she “excluded these notes from evidence and did not
consider these notes when issuing her decision” and “Hoff credibly testified that he spoke
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This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA IN COURT OF APPEALS A14-1139
Kelly Smith, Relator,
vs.
Hoff Diamonds and Gems, Inc., Respondent,
Department of Employment and Economic Development, Respondent.
Filed February 2, 2015 Affirmed Peterson, Judge
Department of Employment and Economic Development File No. 32077224-3
Kelly M. Smith, Ortonville, Minnesota (pro se relator)
William G. Cottrell, Cottrell Law Firm, Mendota Heights, Minnesota (for respondent Hoff Diamonds and Gems, Inc.)
Lee B. Nelson, Department of Employment and Economic Development, St. Paul, Minnesota (for respondent department)
Considered and decided by Larkin, Presiding Judge; Peterson, Judge; and Hudson,
Judge. UNPUBLISHED OPINION
PETERSON, Judge
This certiorari appeal is from an unemployment-law judge’s decision that relator is
ineligible for unemployment benefits because he was discharged from his employment
for employment misconduct. We affirm.
FACTS
Relator Kelly Smith worked as a jeweler for respondent Hoff Diamonds and
Gems, Inc., from February 2013 through December 28, 2013. His primary job duties
were to manufacture, repair, and polish jewelry. In mid-December 2013, Hoff
Diamond’s owner, Steven Hoff, spoke to relator about concerns he had about relator’s
attitude and conduct toward his coworkers.
On December 27, 2013, relator became frustrated while working on a ring. He
approached the office manager and, using profane language, told her that he was not
going to work on the ring anymore. He then dropped the ring on her desk and walked
away. On December 28, 2013, relator used profane language when he complained to
Hoff about the way that work orders were formatted. Also on December 28, relator’s
paycheck did not include pay for five hours of overtime that relator had worked. Relator
became angry and went to the store manager’s office. Using a profane adjective, relator
told the store manager that she was a thief. The store manager reviewed relator’s work
hours, acknowledged that she made a mistake, and told relator that she would have
another check issued to him.
2 Hoff Diamonds discharged relator because of his inability to get along with his
coworkers and his conduct on December 27 and 28. Relator sought unemployment
benefits, and respondent department of employment and economic development issued a
determination of ineligibility. Relator appealed this determination, and an
unemployment-law judge (ULJ) conducted a hearing and concluded that relator is
ineligible for benefits because he was discharged from employment for employment
misconduct. The ULJ affirmed this determination on reconsideration, and this certiorari
appeal followed.
DECISION
When reviewing the decision of a ULJ, this court may affirm the decision, remand
for further proceedings, or reverse or modify the decision if the relator’s substantial rights
were prejudiced because the conclusion, decision, findings, or inferences are, among
other reasons, unsupported by substantial evidence in the record. Minn. Stat. § 268.105,
subd. 7(d)(5) (2014). Substantial evidence is “(1) such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion; (2) more than a scintilla of
evidence; (3) more than some evidence; (4) more than any evidence; or (5) the evidence
considered in its entirety.” Minn. Ctr. for Envtl. Advocacy v. Minn. Pollution Control
Agency, 644 N.W.2d 457, 466 (Minn. 2002). This court reviews factual findings in the
light most favorable to the decision and defers to the ULJ’s credibility determinations.
Skarhus v. Davanni’s Inc., 721 N.W.2d 340, 344 (Minn. App. 2006).
“Employment misconduct means any intentional, negligent, or indifferent conduct
. . . that displays clearly: (1) a serious violation of the standards of behavior the employer
3 has the right to reasonably expect of the employee; or (2) a substantial lack of concern for
the employment.” Minn. Stat. § 268.095, subd. 6(a) (2014). Employment misconduct
does not include inefficiency or inadvertence, simple unsatisfactory conduct, conduct an
average reasonable employee would have engaged in, poor performance because of
inability or incapacity, or good-faith errors in judgment. Id., subd. 6(b)(2)-(6) (2014).
Whether an employee committed misconduct is a mixed question of fact and law. Stagg
v. Vintage Place Inc., 796 N.W.2d 312, 315 (Minn. 2011). Whether the employee
committed a specific act is a fact question, reviewed in the light most favorable to the
decision and affirmed if supported by substantial evidence. Skarhus, 721 N.W.2d at 344.
Whether the employee’s act constitutes employment misconduct is a question of law
subject to de novo review. Stagg, 796 N.W.2d at 315.
Relator argues that the ULJ should not have credited the testimony of the
employer’s witnesses that relator swore on December 27 and 28 because written
statements that the witnesses prepared three months before the hearing did not state that
he swore. Relator contends that the witnesses did not testify that he swore until the ULJ
specifically asked whether he swore at them. Relator also contends that the witnesses
were not credible because a video recording of the December 27 incident when he told
the office manager that he was not going to work on a ring anymore showed no
aggression on his part and no reaction by the office manager or any nearby customers to
anything that he was saying. Relator argues that if he had acted the way that the office
manager testified he acted, the video recording would have shown her and the customers
reacting in a shocked manner.
4 Regardless of the content of the witnesses’ written statements and the video
recording, all three of the employer’s witnesses testified that relator used profanity during
their conversations with him on December 27 and 28, and the ULJ specifically found that
the employer’s witnesses’ testimony was more credible than relator’s testimony. We
defer to the ULJ’s credibility determinations, and the employer’s witnesses’ testimony is
substantial evidence that relator used profanity during conversations with three coworkers
during his final days of employment.
Relator argues that Hoff and his attorney tried to pass off notes that Hoff created
the day before the hearing as if they were the original notes that Hoff created following
conversations with relator about his conduct. Although relator’s argument on appeal is
not complete, he appears to claim that Hoff falsified the recreated notes. This argument
was presented to the ULJ on reconsideration, however, and the ULJ found that “[t]here
was no evidence that Hoff falsified the notes” and “Hoff testified that he could not find
the original notes, and reconstructed them from his memory.” More importantly, the ULJ
also stated on reconsideration that she “excluded these notes from evidence and did not
consider these notes when issuing her decision” and “Hoff credibly testified that he spoke
to [relator] about his conduct several times and that he informed [relator] he needed to
improve his conduct towards his coworkers.” Whether Hoff spoke to relator and the
content of any conversations are credibility issues, and we defer to the ULJ’s credibility
determinations.
Relator argues that even if he did swear at his coworkers, doing so was not
employment misconduct because a single incident that has no significant negative effect
5 on the employer is not employment misconduct. But, as the ULJ stated on
reconsideration,
[t]he evidence shows that [relator’s] conduct was not a single incident. The employer cited a minimum of two incidents, one that occurred on December 27 and another on December 28, 2013, that factored into the discharge decision. Hoff testified that [relator’s] conduct has been a concern since the fall of 2013, and that he had spoken to [relator] about his conduct.
Furthermore, the statute that addresses a single incident states only that “[i]f the
conduct for which the applicant was discharged involved only a single incident, that is an
important fact that must be considered in deciding whether the conduct rises to the level
of employment misconduct under [Minn. Stat. § 268.095, subd. 6](a).” Minn. Stat.
§ 268.095, subd. 6(d) (2014). The statute does not require that the single incident have a
significant negative effect on the employer.
Appellant also argues that his alleged conduct was not employment misconduct
because the statutory definition of “employment misconduct” specifically excludes
“simple unsatisfactory conduct” and “conduct an average reasonable employee would
have engaged in under the circumstances.” Minn. Stat. § 268.095, subd. 6(b)(3)-(4).
Relator contends that even if he did swear, that would not “be more than simple
unsatisfactory conduct that would be expected given the situation” because his employer
was stealing money from him by purposefully shorting him on his paycheck. But relator
does not cite any evidence that gave him a reason to believe that the shortfall in his
paycheck was purposeful, rather than a simple error.
6 Furthermore, the incidents on December 27 and 28 occurred after Hoff spoke to
relator about his conduct. After he spoke to relator, Hoff had a right to reasonably expect
that relator would not use profane language while speaking with his coworkers in the
workplace. Relator’s repeated use of profanity was a serious violation of this standard of
behavior, and it clearly displayed a substantial lack of concern for his employment.
Affirmed.