Ardell Tesmer, 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This opinion will be unpublished and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
A16-1741

Ardell Tesmer,
Relator,

vs.

Wal-Mart Associates, Inc.,
Respondent,

Department of Employment and Economic Development,
Respondent.

Filed May 15, 2017
Affirmed
Schellhas, Judge

Department of Employment and Economic Development
File No. 34581783-4

Ardell W. Tesmer, Plainview, Minnesota (pro se relator)

Wal-Mart Associates, Inc., Rochester, Minnesota (respondent employer)

Lee B. Nelson, Benjamin P. Jones, De partment of Employment and Economic
Development, St. Paul, Minnesota (for respondent department)

Considered and decided by Bratvold, Pr esiding Judge; Schellhas, Judge; and Kirk,
Judge.

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U N P U B L I S H E D O P I N I O N
SCHELLHAS, Judge
Relator challenges an unemployment-law judg e’s decision that he is ineligible for
unemployment benefits because he was disc harged for employment misconduct. We
affirm.
FACTS
Relator Ardell Tesmer worked in the produce department of one of respondent Wal-
Mart Associates Inc.’s stores from June 2001 until March 2016. Wa l-Mart expects its
employees to work when scheduled and to not exceed their sche duled shifts without
supervisor approval. Tesmer was aware of th is expectation but exceeded his scheduled
shifts without approval on nume rous occasions in 2015, incl uding once in January, three
times in May, twice in June, and once in July. These violations resulted in Tesmer leaving
subsequent shifts early to make up for working in excess of his earlier shifts and prompted
Wal-Mart to issue Tesmer written warnin gs on three separate occasions. Tesmer
nevertheless again exceeded his scheduled shift on March 5, 2016.
On March 11, 2016, Wal-Ma rt discharged Tesmer for failing to comply with the
scheduling policy. Tesmer applied for unemployment benefits with respondent Minnesota
Department of Employment and Economic Development, and the department determined
that Tesmer was ineligible for benefits. Te smer appealed the determination, and an
unemployment-law judge (ULJ) concluded that Tesmer was discharged for employment
misconduct because he worked past his scheduled shifts without supervisor approval. The
ULJ affirmed her decision on reconsideration.

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This appeal by writ of certiorari follows.
D E C I S I O N
When reviewing a ULJ’s decision, we ma y affirm, remand the case for further
proceedings, or reverse or modify the decision if the substan tial rights of the relator have
been prejudiced because, among other things, the decision is unsupported by substantial
evidence. Minn. Stat. § 268.10 5, subd. 7(d) (2016). “Wheth er an employee engaged in
conduct that disqualifies the employee from unemployment benefits is a mixed question of
fact and law.” Stagg v. Vintage Place Inc., 796 N.W.2d 312, 315 (Minn. 2011) (quotation
omitted). “Whether the employee committed a particular act is a question of fact.” Skarhus
v. Davanni’s Inc. , 721 N.W.2d 340, 34 4 (Minn. App. 2006). “But whether the act
committed by the employee constitutes employment misconduct is a question of law, which
we review de novo.” Id. “We view the ULJ’s factual findings in the light most favorable
to the decision, giving defe rence to the credibility determ inations made by the ULJ.” Id.
(citations omitted). This court “will not dist urb the ULJ’s factual findings when the
evidence substantially sustains them.” Id.
A person who is discharged for empl oyment misconduct is ineligible for
unemployment benefits. Minn. Stat. § 268.095, subd. 4 (2016). “Employment misconduct
means any intentional, negligent, or indifferent conduct . . . that di splays clearly: (1) a
serious violation of the standards of behavi or the employer has the right to reasonably
expect of the employee; or (2) a substantia l lack of concern for the employment.” Minn.
Stat. § 268.095, subd. 6(a) (2016). “As a gene ral rule, refusing to abide by an employer’s

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reasonable policies and requests am ounts to disqualifying misconduct.” Schmidgall v.
FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).
We conclude that substantial evidence supports the ULJ’s finding that Tesmer
violated Wal-Mart’s scheduling policy and th at the ULJ did not err by concluding that
Tesmer committed employment misconduct. Th e record shows that Wal-Mart warned
Tesmer about working beyond his schedule d shift without prior approval from his
supervisor. In fact, Tesmer was specifically told that even if work was not complete by the
end of his shift he should “just go home.” Despite three written warnings, Tesmer
continued to work beyond his scheduled shifts. Because Tesmer repeatedly violated Wal-
Mart’s reasonable scheduling policy, the ULJ did not err by concluding that Tesmer was
discharged for employment misconduct and therefore ineligible for unemployment
benefits. See id. at 806–07 (“[A]n employee’s decision to violate knowingly a reasonable
policy of the employer is misc onduct. This is particularly true when there are multiple
violations of the same rule involving warn ings or progressive discipline.” (citation
omitted)).
Affirmed.