James Treptau, Relator,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1726

James Treptau,
Relator,

vs.

Federal Cartridge Co. (Corp.),
Respondent,

Department of Employment and
Economic Development,
Respondent.

Filed June 12, 2017
Affirmed
Johnson, Judge

Department of Employment and
Economic Development
File No. 34652098-3

James Treptau, Buffalo, Minnesota (pro se relator)

Federal Cartridge Co. (Corp.), c/o ADP -UCM/The Frick Co., St. Louis, Missouri
(respondent employer)

Lee B. Nelson, Keri A. Phillips, St. Paul, Minnesota (for respondent department)

Considered and decided by Bjorkman, Presiding Judge; Peterson, Judge; and
Johnson, Judge.

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U N P U B L I S H E D O P I N I O N
JOHNSON, Judge
An unemployment -law judge determined that James Treptau is ineligible for
unemployment benefits b ecause he was discharged from employment for engaging in
misconduct. We affirm.
FACTS
Treptau worked full -time for Federal Cartridge Company as a manufacturing
machine operator from March 21, 2013 , to May 5, 2016. He operated three types of
machines: a packer, a sleever, and a machine known as the “Bemis.”
In December 2014, Federal Cartridge posted a safety alert that directed employees
to refrain from using Allen wrenches or other tools to cause the start button on the packer
machine to remain depressed. In March 2015, Federal Cartridge suspended Treptau from
employment because he inserted an Allen wrench into the start-button housing on a packer
machine, thereby causing “an unsafe work condition. ” Treptau was rein stated to
employment four days later . As a condition of his reinstatement, Treptau agreed that he
would “read and understand the company policies” in the employee handbook and that he
would comply with the company’s safety policies.
In April 2016, Treptau again was suspended from employment for violating a safety
policy, this time because he bypassed safety protocols by using tape on the start/stop button
of the Bemis, which caused the button to remain depressed . Two weeks later , Federal
Cartridge terminated Treptau’s employment.
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In May 2016, Treptau applied for unemployment benefits. The department of
employment and economic development (DEED) made an initial determination that
Treptau was ineligible for unemployment benefits because he had been d ischarged for
misconduct. Treptau pursued an administrative appeal of the initial determination.
In August 2016, an unemployment -law judge (ULJ) held an e videntiary hearing.
Stephen Krippner, a Federal Cartridge human-resources generalist, testified that Treptau
was terminated because he violated a company safety policy by taping down the start/stop
button on the Bemis machine and leaving the tape on the machine at the end of his shift.
Krippner testified that Treptau admitted to taping down the start /stop button . He also
testified that Treptau’s use of tape on the Bemis was similar to his use of the Allen wrench
on the packer. Krippner explained that the Bemis machine is equipped with doors to keep
employees’ hands away from the machine ’s moving parts. Krippner also explained that
the Bemis machine will operate only if the start/stop button is depressed. Krippner further
explained that the start/stop button will automatically pop up if the doors are opened. But
if the start/stop button has been taped down, the machine will not stop operating when the
doors are opened. Thus, an employee such as Treptau who reaches a hand inside the doors
could be injured, and an employee who is unaware that the start/stop button has been taped
down could unexpectedly discover that the machine continues to operate after the doors
are opened.
In his own testimony, Treptau said that he taped down the start /stop button on the
Bemis in order to keep the machine from “stall[ing] out” and requiring him to manually
depress the start /stop button every time he want ed the machine to restart, which he said
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was “a huge waste of time.” Treptau testified that he did not believe that he created a safety
hazard. He also explained how the Bemis is different from the packer and that the warning
he received regarding the packer did not apply to the Bemis.
In August 2016, the ULJ found that Treptau is ineligible for unemployment benefits
because he “violated the standards of behavior the employer had the right to reasonably
expect [which] amounted to employment misconduct ” when he taped down the start /stop
button on the Bemis. Treptau requested reconsideration , which the ULJ denied. Treptau
appeals.
D E C I S I O N
We construe Treptau’s pro se brief to make two arguments.
I. Finding of Misconduct
Treptau argues that the ULJ erred by finding that he was terminated from his
employment for engaging in employment misconduct.
This court reviews a ULJ ’s decision denying unemployment benefits to determine
whether the findings, inferences, conclusions, or decision are unlawful or in excess of the
ULJ’s authority, unsupported by substantial evidenc e, or arbitrary and capricious. Minn.
Stat. § 268.105, subd. 7(d) (2016). We review the ULJ’s findings of fact “in the light most
favorable to the decision ” to determine whether “there is evidence in the record that
reasonably tends to sustain them. ” Stagg v. Vintage Place Inc. , 796 N.W.2d 312, 315
(Minn. 2011) (quotation omitted). We apply a de novo standard of review to the question
whether an employee’s conduct “disqualifies the employee from unemployment benefits,”
which “is a mixed question of fact and law.” Id. (quotation omit ted). “Whether the
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employee committed a particular act is a question of fact.” Skarhus v. Davanni’s Inc., 721
N.W.2d 340, 344 (Minn. App. 2006).
Unemployment benefits are intended to provide financial assistance to workers who
have been discharged from employment “through no fault of their own. ” Stagg, 796
N.W.2d at 315 (quotation omitted). Accordingly, a worker who was discharged due to
“employment misconduct” is ineligible for unemployment benefits. Minn. Stat. § 268.095,
subd. 4 (2016); Stagg, 796 N.W.2d at 315-16. “Employment misconduct” is defined as
any intentional, negligent, or indifferent conduct, on the job or
off the job that displays clearly:

(1) a serious violation of the standards of behavior
the employer has the right to reasonably e xpect of the
employee; or

(2) a substantial lack of concern for the
employment.

Minn. Stat. § 268.095, subd. 6(a) (2016). This statutory definition is exclusive such that
“no other definition applies.” Id., subd. 6(e); see also Wilson v. Mortgage Resource Ctr.,
Inc., 888 N.W.2d 452, 456-60 (Minn. 2016).
In this case, t he ULJ determined that Treptau committed a serious violation of
Federal Cartridge ’s reasonable expectations of its employees ’ standards of behavior by
intentionally bypassing a safety mechanism on the Bemis. The ULJ also found that Treptau
“show[ed] a substantial lack of concern for the employment ” by engaging in that conduct
after receiving notice that such conduct is prohibited. The ULJ found that Treptau knew
or should have known that Federal Cartridge “expected him to use machinery in the manner
in which it was designed, not in a manner that Treptau felt was sufficiently safe. ”
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Furthermore, the ULJ found Treptau to be “disingenuous” in testifying that he had no
reason to know that taping down the Bemis ’s start/stop button violated a company safety
policy.
Treptau contends that the ULJ erred for three reasons. First, he contends that the
ULJ did not consider Treptau’s subjective intent when he taped down the start/stop button
on the Bemis, which he contends shows that he did not knowingly violate Federal
Cartridge’s safety policy. Treptau’s contention is inconsistent with the caselaw, which
provides that whether an employee ’s c onduct constitutes a “serious violation ” of an
employer’s reasonable expectations is an objective determination, “not a subjective one.”
Wilson, 888 N.W.2d at 459 (citing Jenkins v. American Express Fin. Corp. , 721 N.W.2d
286, 290 (Minn. 2006)). As DEED contends, the caselaw on which Treptau relies has been
abrogated by an amendment to the unemployment-benefits statute. See Fujan v. Ruffridge-
Johnson Equip., 535 N.W.2d 393 (Minn. App. 1995) , abrogated by Minn. Stat. § 268.09,
subd. 12 (Supp. 1997) (codifying exclusive definition of employment misconduct ); Shell
v. Host Int’l , 513 N.W.2d 15 (Minn. App. 1994) (same); Norman v. Campbell -Logan
Bindery, Inc., 376 N.W.2d 723 (Minn. App. 1985) (same).
Second, Treptau contends that he did not engage in misconduct because his conduct
did not result in any harm. As a matter of law, it is irrelevant whether his conduct caused
any harm. See Peterson v. Northwest Airlines Inc. , 753 N.W.2d 771, 776 (Minn. App.
2008), review denied (Minn. Oct. 1, 2008) (stating that ULJ need not find actual harm
resulting from relator’s misconduct); Sivertson v. Sims Security, Inc., 390 N.W.2d 868, 871
(Minn. App. 1986), review denied (Minn. Aug. 20, 1986) (same).
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Third, Treptau contends that the ULJ’s determination is not supported by substantial
evidence. In fact, there is abundant evidence to support the ULJ ’s finding that Treptau
engaged in misconduct. The evidence shows that the company ’s handbook provides that
safety-policy violations may resul t in termination, that Treptau previously used a tool to
keep a packer machine’s start button depressed, was disciplined and warned, acknowledged
that he would not repeat his conduct, and then engaged in the same type of unsafe conduct
again with respect to the Bemis.
Thus, the ULJ did not err by finding that Treptau engaged in misconduct.
II. Fairness of Hearing
Treptau also argues that, for four reasons, the ULJ erred by not providing him with
a fair hearing.
First, Treptau contends that the ULJ would not allow him to introduce as an exhibit
a letter written by a co-worker concerning Treptau’s good character. A ULJ is required to
“assist all parties in the presentation of evidence ” and to “ensure that all relevant facts are
clearly and fully developed.” Minn. R. 3310.2921 (2014). The ULJ asked Treptau at the
beginning of the hearing whether he had additional documents to submit. Treptau
answered in the negative. L ater in the hearing, Treptau read the entirety of the letter into
the record, without objection or interruption. Thus, the ULJ did not fail to assist Treptau
in presenting evidence or in ensuring that the record was fully developed.
Second, Treptau contends that the ULJ did not assist him in rescheduling the hearing
to give him an opportunity to subpoena witnesses. The applicable administrative rule
provides, “A hearing may be rescheduled only once by each party except in the case of an
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emergency.” Minn. R. 3310.2908, subp. 1 (2014). Treptau’s hearing was rescheduled to
allow him to subpoena witnesses. At the beginning of the hearing, the ULJ asked Treptau
whether he would call any witnesses. Treptau responded in the negative but said that he
“could get some. ” The ULJ reminded Treptau that the hearing already had been
rescheduled once. Treptau then said that he did not want to reschedule the hearing again.
Thus, the ULJ did not deprive Treptau of an opportunity to subpoena witnesses.
Third, Treptau contends that the ULJ prevented him from presenting certain
testimony about the Bemis’s functionality. During Krippner’s testimony, Treptau objected
and disputed Krippner’s testimony about the Bemis’s functionality. The ULJ interrupted
Treptau and informed him that he would have an opportunity later in the hearing to provide
his own testimony. Treptau later testified at length on the issue. Thus, the ULJ did not
prevent Treptau from presenting evidence about the Bemis’s functionality.
Fourth, Treptau contends that the ULJ should not have relied on an exhibit offered
by DEED that Treptau had not seen before the hearing. Any exhibits relied on by a party
in a hearing before a ULJ must be disclosed to the opposing pa rty by mail or electronic
transmission “in advance of the hearing.” Minn. R. 3310.2912 (2014). The record
indicates that Treptau had notice of DEED’s exhibits before the hearing. At the beginning
of the hearing, the ULJ asked Treptau whether he had any objection to marking the exhibit
in question and making it part of the record. Treptau did not object. Thus, the ULJ did not
err by relying on the exhibit.
Therefore, the ULJ did not deprive Treptau of a fair hearing.
Affirmed.