Kelly Smith, Relator v. Hoff Diamonds and Gems, Inc., Department of Employment and Economic Development

This opinion will be unpublished and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 UNPUBLISHED OPINION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.

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 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

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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.

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 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

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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.

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 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.

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