Balla Musa, Relator v. My Brothers' Keeper, 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This opinion will be unpublished and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
A15-0092

Balla Musa,
Relator,

vs.

My Brothers' Keeper,
Respondent,

Department of Employment and Economic Development,
Respondent.

Filed August 24, 2015
Affirmed
Halbrooks, Judge

Department of Employment and Economic Development
File No. 32744756-3

John A. Fabian, Jenny M. Helling, Fabian May & Anderson PLLP, Minneapolis,
Minnesota (for relator)

Theresa M. Thompson, Krista A.P. Hatcher, David G. Waytz, Fredrikson & Byron, P.A.,
Minneapolis, Minnesota (for respondent My Brothers’ Keeper)

Lee B. Nelson, Minnesota Department of Employment and Economic Development,
St. Paul, Minnesota (for respondent Department of Employment and Economic
Development)

Considered and decided by Halbrooks, Presiding Judge; Cleary, Chief Judge; and

Hooten, Judge.
 UNPUBLISHED OPINION

HALBROOKS, Judge

Relator challenges the decision of the unemployment-law judge (ULJ) that he is

ineligible for unemployment benefits because he was discharged for employment

misconduct, arguing that he did not commit misconduct by failing to attend a disciplinary

meeting. We affirm.

FACTS

Relator Balla Musa was employed by respondent My Brothers’ Keeper (MBK), an

operator of group homes, as a full-time designated coordinator and supervisor from

August 2004 to July 15, 2014. Musa was discharged after failing to report to a

disciplinary meeting on July 14. The July 14 meeting was to be a continuation of a July

11 meeting with the executive director and the housing director, at which they had

attempted to issue Musa a written warning. Musa contends that he was unaware of the

July 14 meeting. Musa reported for work on July 15, at which time the executive director

and housing director advised him that he was being discharged for failing to attend the

July 14 meeting.

Musa applied for unemployment benefits and was determined to be eligible. The

employer appealed, and a ULJ held a hearing on October 6 and 9 at which Musa and four

MBK employees testified. Musa was represented by counsel at the hearing.

The ULJ determined that MBK “discharged Musa because he failed to report to

the meeting on July 14, 2014, and because he was disrespectful to [supervisors] on

multiple occasions” and that Musa was ineligible for unemployment benefits because he

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was discharged for employment misconduct. Upon reconsideration, the ULJ affirmed the

decision. Musa now appeals.

DECISION

Musa argues on appeal that (1) the ULJ’s findings that he was aware of the July 14

meeting and that he was discharged in part for disrespectful behavior are not substantially

sustained by the evidence, (2) the ULJ erred in determining that his actions constituted

employment misconduct, and (3) the ULJ erred in denying his request for an additional

evidentiary hearing on reconsideration.

We review a ULJ’s decision to determine whether a party’s substantial rights were

prejudiced because the decision is “(1) in violation of constitutional provisions; (2) in

excess of the statutory authority or jurisdiction of the department; (3) made upon

unlawful procedure; (4) affected by other error of law; (5) unsupported by substantial

evidence in view of the entire record as submitted; or (6) arbitrary or capricious.” Minn.

Stat. § 268.105, subd. 7(d) (2014). Whether an employee engaged in employment

misconduct presents a mixed question of law and fact. Skarhus v. Davanni’s Inc., 721

N.W.2d 340, 344 (Minn. App. 2006). Whether an employee committed a particular act is

a question of fact. Id. Whether an act constitutes employment misconduct is a question

of law, which this court reviews de novo. Stagg v. Vintage Place Inc., 796 N.W.2d 312,

315 (Minn. 2011).

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 I.

Musa challenges the ULJ’s factual findings that he (1) engaged in a pattern of

disrespectful behavior, (2) was aware of the July 14 meeting, and (3) was discharged

based on missing the July 14 meeting and his disrespectful behavior.

We review the ULJ’s factual findings in the light most favorable to the decision.

Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002). Courts will not

disturb the ULJ’s factual findings when the evidence substantially sustains them. See

Minn. Stat. § 268.105, subd. 7(d). The ULJ found:

 In the fall of 2013, Musa applied for the position of housing director but
was not promoted.

 On March 28, 2014, the housing director attempted to issue a write-up to
Musa because required programs were not documented. Musa became
argumentative and raised his voice. The housing director called another
employee into the room to be a witness because she felt intimidated by
Musa. Musa continued to argue.

 On July 7, 2014, the housing director e-mailed Musa, asking him to attend a
meeting on July 10 to discuss an incident from the previous week involving
Musa’s discipline of a direct support professional. On July 8, Musa replied
that July 10 would not work for him, asked for an agenda, and informed the
housing director that he would be tape recording the meeting. On July 9,
the executive director e-mailed Musa, asking him to meet on July 11 at 8:30
a.m. On July 11, Musa replied that he could not make 8:30 a.m. because he
had various things to do, including passing medications. The executive
director replied, “Please be at the office at 9:00 today.” Musa responded
that he was unavailable because he needed to give a client a ride at 9:30 but
nevertheless reported at 9:00.

 At the July 11, 2014 meeting, the executive director and housing director
attempted to issue a written warning to Musa. Musa reminded them that he
was recording the meeting, argued with them loudly, talked over them, and
refused to sign the warning.

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  Because they did not finish by 9:30, the three discussed when to continue
the meeting. The executive director told Musa she wanted to continue the
meeting on July 14. Musa responded that July 14 was his day off. The
executive director told him he could come in on his day off, much like he
expected of his own direct reports. As Musa was leaving, the executive
director said in a voice loud enough for Musa to hear, “I will see you
Monday morning at 9:00 a.m.”

 Musa did not report for the July 14 meeting even though he knew he was
expected to be there.

The record supports these factual findings. Of particular note, the findings about

the July 7-11 e-mails are supported by the copies of the e-mails, which are in the record,

and with respect to the July 11 meeting, the executive director testified that Musa was

argumentative and refused to sign the “performance correction” document. It is

undisputed that Musa recorded the July 11 meeting. It is also undisputed that the meeting

had not concluded by 9:30, so the parties discussed when to reconvene. Musa testified

that the executive director suggested Monday, July 14, and he responded that Monday

was his day off. The executive director testified that she told him that he should come in

anyway.

Two employees testified that, when the July 11 meeting ended, the executive

director said to Musa, “I will see you on Monday at 9:00 a.m.” One of these employees

testified that she thought Musa heard the statement because “[the executive director]

spoke loud enough for him to hear” and that Musa would have understood that the

meeting was mandatory because of her tone of voice.

Musa generally denied that he was uncooperative, aggressive, disrespectful, and

insubordinate, and specifically denied hearing the executive director order him to report

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to a meeting on July 14. But the ULJ rejected his testimony and credited the testimony of

the employer’s witnesses as to any disputed facts.

This court defers to the ULJ’s credibility determinations when (1) they are

supported by substantial evidence and (2) the ULJ sets forth a valid reason for crediting

or discrediting testimony that may significantly affect the ultimate decision. See Ywswf v.

Teleplan Wireless Servs., Inc., 726 N.W.2d 525, 532-33 (Minn. App. 2007); see also

Minn. Stat. § 268.105, subd. 1a(a) (2014) (providing that the ULJ “must set out the

reason for crediting or discrediting that testimony” when the witness’s credibility “has a

significant effect on the outcome of the decision”).

The ULJ credited the testimony of the employer’s witnesses because “it was

extremely detailed and specific, and because it described the more likely series of events.

Furthermore, the fact that Musa was so upset about being passed over for the promotion

makes it more likely that he engaged in disrespectful behavior.” In doing so, the ULJ

provided valid reasons as required by statute. See Ywswf, 726 N.W.2d at 533 (providing

that the level of detail and specificity and reasonableness of the testimony in light of

other evidence are permissible factors in evaluating credibility).

And the ULJ’s reasons are supported by the record. The employer’s witnesses

testified consistently about critical facts—for example, that the executive director told

Musa to report to a meeting at 9:00 on July 14. Because the ULJ gave reasons for her

credibility findings and the findings are supported by substantial evidence, there is no

basis in the record to overturn the credibility findings.

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 The parties disagree whether Musa was discharged solely for missing the July 14

meeting or for multiple occasions of insubordination and disrespectful behavior

culminating in his failure to attend the July 14 meeting. The ULJ found that it was the

latter. We note that because the purpose of the July 14 meeting was to impose discipline

for disrespectful behavior, the distinction may not have a practical impact.

MBK’s paperwork submitted to DEED provides that the reason for discharge was

“The claimant failed to call off or show up for a mandatory meeting.” But testimony by

Musa’s supervisors supports the ULJ’s finding that multiple occasions of disrespectful

behavior were also part of the reason for discharge. The executive director testified at

various times that the discharge was “a culmination of a lot of issues . . . [h]is attitude and

behavior,” “a total lack of respect for [the housing director] and myself,” and for missing

the meeting on July 14. And the housing director testified that “the final” reason for

discharge was that Musa did not call or show up on July 14.

Deferring to the ULJ’s credibility determinations and viewing the factual findings

in the light most favorable to the decision, the ULJ’s finding that MBK discharged Musa

“because he failed to report to the meeting on July 14, 2014, and because he was

disrespectful to [the executive director and housing director] on multiple occasions” is

supported by substantial evidence in view of the record as a whole.

II.

Musa argues that he did not commit employment misconduct because he was

unaware of the July 14 meeting and his single failure to attend a meeting was not

employment misconduct. He does not argue that multiple occasions of disrespectful

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behavior plus missing the July 14 meeting are insufficient to collectively constitute

employment misconduct.

“Employment misconduct” is in relevant part “any intentional, negligent, or

indifferent conduct . . . that displays clearly . . . a serious violation of the standards of

behavior the employer has the right to reasonably expect of the employee.” Minn. Stat.

§ 268.095, subd. 6(a) (2014). Whether employee conduct amounts to a serious violation

of the standards of behavior the employer has the right to reasonably expect of employees

is an objective determination that turns on whether the employer’s expectation was

reasonable under the circumstances. Jenkins v. Am. Express Fin. Corp., 721 N.W.2d 286,

290 (Minn. 2006).

Refusing to follow an employer’s reasonable requests generally constitutes

employment misconduct. Schmidgall, 644 N.W.2d at 804. Insubordinate behavior has

also been held to constitute misconduct. See, e.g., Montgomery v. F & M Marquette

Nat’l Bank, 384 N.W.2d 602, 605 (Minn. App. 1986) (rudeness to customers, fellow

employees, and supervisor constitutes misconduct), review denied (Minn. June 13, 1986);

Snodgrass v. Oxford Props., Inc., 354 N.W.2d 79, 80 (Minn. App. 1984) (refusal to

cooperate with supervisor or take directions constitutes misconduct). And Musa

acknowledges that absenteeism can in some circumstances amount to employment

misconduct.

Because we uphold the ULJ’s findings that Musa engaged in multiple occasions of

disrespectful behavior and was aware of but failed to attend the July 14 meeting, we also

uphold the ULJ’s determination that Musa seriously violated the employer’s reasonable

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expectations and showed a substantial lack of concern for his employment. The ULJ

considered the totality of Musa’s conduct, which is not improper. An employee’s

behavior “may be considered as a whole in determining the propriety of [his] discharge

and [his] qualification for unemployment compensation benefits.” Drellack v. Inter-

Cnty. Cmty. Council, Inc., 366 N.W.2d 671, 674 (Minn. App. 1985).

III.

Musa argues in the alternative that the ULJ erred by denying his request for an

additional evidentiary hearing to review recordings he made of the July 11 meeting and

the July 15 discussion that Musa contended corroborated his testimony that (1) he was

not given a clear directive at the end of the July 11 meeting to attend a meeting on July

14 and (2) on July 15, Musa immediately informed the housing director that he was not

aware of the July 14 meeting.

In deciding a request for reconsideration, a ULJ “must not consider any evidence

that was not submitted at the hearing, except for purposes of determining whether to

order an additional hearing.” Minn. Stat. § 268.105, subd. 2(c) (2014). An additional

hearing is warranted if additional evidence “would likely change the outcome . . . and

there was good cause for not having previously submitted the evidence” or would show

that evidence submitted at the hearing was likely false and had an effect on the outcome.

Id.

Musa contends that he did not submit the recordings before or at the hearing

because “he did not know that MBK’s witnesses were going to lie about what transpired”

at those meetings. But the executive director expressly noted early in the hearing that

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Musa had possession of the recordings and that they were not in evidence. Musa’s

counsel made no attempt to offer the recordings that day or at the continued hearing three

days later.

After receiving Musa’s request for reconsideration, the ULJ reviewed the

recordings and determined that an additional hearing was not necessary. The ULJ found

that Musa did not have good cause for not having previously submitted the recordings

and that the recordings would not change the outcome. The ULJ noted that, “Despite his

claims to the contrary, the [July 11 meeting] recording suggests that Musa knew, or

should have known, that he was expected to meet with the employer on Monday, July 14,

2014.”

Having reviewed the July 11 recording, we agree that its consideration would not

change the outcome. The content is consistent with the employer’s witnesses’ testimony,

which the ULJ credited. And although the recording does not conclusively resolve the

disputed issue of whether Musa subjectively knew that he was expected on July 14, it

confirms that the executive director made her expectations clear.

With respect to the July 15 recording, the ULJ acknowledged after review that it

invalidated her finding that Musa did not tell the housing director on July 15, 2014 that

he was unaware of the July 14 meeting. But the ULJ determined that this inaccuracy was

not material and would not change the outcome.

Because the ULJ’s finding that Musa was aware of the July 14 meeting does not

depend on whether Musa denied knowledge of that meeting on July 15, we conclude that

the ULJ properly determined that the July 15 recording also would not change the

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outcome of the decision. Nor does either recording show that there was false testimony

at the hearing that had an effect on the outcome. And we discern no good cause for

Musa’s failure to submit the evidence earlier. We therefore conclude that the ULJ

properly denied Musa’s request for an additional evidentiary hearing to consider the July

11 and 15 recordings.

Affirmed.

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