Gregory Smalley, 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This opinion will be unpublished and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
A17-0437

Gregory Smalley,
Relator,

vs.

TVI, Inc.,
Respondent,

Department of Employment and Economic Development,
Respondent.

Filed January 2, 2018
Affirmed
Smith, Tracy M., Judge

Department of Employment and Economic Development
File No. 34704533-6

Gregory Michael Smalley, Minneapolis, Minnesota (pro se relator)

TVI, Inc., Minneapolis, Minnesota (respondent employer)

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

Considered and decided by Larkin, Pr esiding Judge; Hooten, Judge; and Smith,
Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
Relator Gregory Smalley challenges an unemployment-law judge’s (ULJ)
determination that he is ine ligible for unemployment benefits because he was discharged

2
due to employment misconduct. Because th e record supports the ULJ’s finding that
Smalley was discharged for employment mi sconduct, and not in retaliation for filing
complaints about his employer, we affirm.
FACTS
Smalley worked as a store clerk at a Savers retail store in Minneapolis from
November 21, 2012, until his discharge on May 24, 2016.
Before his discharge, Smalley made two complaints about his employer. First, on
April 25, 2016, Smalley filed a complaint with the Minnesot a Department of Labor and
Industry (DLI) alleging that respondent TVI, Inc., d/b/a Savers (Savers), had refused to
provide earnings statements to him in writing upon his request, in violation of Minn. Stat.
§ 181.032(c) (2014). According to Savers, Smalley had the option of printing his earnings
statements from a store computer or accessing them online.
Second, on May 5, 2016, Smalley contacted a Savers regional director and reported
that a store manager had allowed garbage and recycling materials to pile up and block a
fire exit, in violation of the local fire code. The regional director assigned a safety inspector
to investigate and address any safety concerns at the store. On May 6, a coworker showed
Smalley a text message that led Smalley to believe that Savers store management planned
to discharge him for reporting safety issues to the regional director. Smalley contacted
Savers’s human-resources department and complained of retaliation.
In between his first and second complain ts, Smalley received a “final counseling”
warning for arguing with a supervisor during a staff meeting over the store bathroom-break

3
policy. The warning directed Smalley to observe the highest standards of professionalism
at all times and follow reasonable supervisory instructions.
Several weeks later, on May 18, Smalley met with a hu man-resources manager, a
district manager, and his store manager. They informed Smalley that an internal
investigation had found no retaliation by stor e management. Smalley claimed that the
investigation was fraudulent and accused the district manager of telling him a “bald-face[d]
lie.” After Smalley debated the finding with the district manager, the district manager told
Smalley that no further inappropriate or insu bordinate behavior would be tolerated and
asked Smalley if he could act professionally upon returning to work. Smalley agreed to
return to work and act professionally.
Six days later, on May 24, Sm alley requested assistance from a store supervisor to
help stock and display new me rchandise. After receiving assistance, Smalley told the
supervisor that she did not understand how to do the job and accused the supervisor of
creating a staffing shortage by forcing out another employee. After learning of the incident,
the Savers store manager talked to the supervisor and observed her visibly upset reaction.
The supervisor requested that sh e not have to work with Smalle y for the rest of the day.
Following the incident, the store manager, in consultation with human resources,
discharged Smalley effective May 24, 2016.
Smalley applied for unemployment benefits and was initially determined eligible by
respondent Minnesota Department of Employment and Econ omic Development (DEED)
unemployment-insurance program . Savers appealed the determination for a de novo

4
hearing before a ULJ pursuant to Minn. Stat. § 268.105, subd. 1(a) (2016). 1 The ULJ
conducted an unemployment he aring at which Smalley fa iled to appear. The ULJ
determined that Savers discharged Smalley because of employment misconduct. Smalley
requested reconsideration of the determination because his failure to appear was the result
of car problems. The ULJ granted Smalley’s request, set aside the previous determination,
and scheduled an additional hearing. Smalley and Savers each appeared at the rescheduled
hearing.
Following the hearing, the ULJ determined that Smalle y had been discharged for
employment misconduct and was therefore inelig ible to receive unemployment benefits.
The ULJ found that, despite Smalley’s potentially legitimate complaints, Smalley received
a final warning on April 29 that he act professionally after he argued with a supervisor, that
the expectation was reiterate d to Smalley on May 18, and that Smalley engaged in
argumentative and disrespectful behavior toward a supervisor on May 24, resulting in his
discharge.
Smalley requested reconsideration of the ULJ’s determination pursuant to Minn.
Stat. § 268.105, subd. 2 (2016). The ULJ affirmed his prior decision.
Smalley appeals.

1 Portions of Chapter 268 were amende d between the time Smalley applied for
unemployment benefits and the time of this appeal. Because those amendments are
immaterial to the resolu tion of this case, we cite the 2016 version of that chapter in this
opinion.

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D E C I S I O N
Smalley challenges the ULJ’s determinat ion that he was discharged due to
employment misconduct. An employee generally is ineligible for unemployment benefits
if he “was discharged because of employm ent misconduct.” Minn. Stat. § 268.095,
subd. 4(1) (2016). Employment misconduct is defined, in part, as “any intentional,
negligent, or indifferent conduct, on the job or off the job that displays clearly . . . a serious
violation of the standards of behavior the em ployer has the right to reasonably expect of
the employee.” Id., subd. 6(a) (2016).
We may reverse or modify a ULJ’s decision if the relator’s substantial rights have
been prejudiced because the ULJ’s findings, inferences, conclusions, or decision are
unsupported by the record, arb itrary, or capricious. Minn. Stat. § 268.105, subd. 7(d)
(Supp. 2017). “Whether an employee e ngaged in employment misconduct presents a
mixed question of fact and law.” Cunningham v. Wal-Mart Assocs., Inc., 809 N.W.2d 231,
235 (Minn. App. 2011). The determination of whether an employee committed a particular
act is a question of fact. Id. We review the ULJ’s finding s of fact in the light most
favorable to the decision and will not disturb the findings if “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). Whether the factual findings establish employee misconduct is a question
of law, which we review de novo. Cunningham, 809 N.W.2d at 235.
The ULJ determined that Smalley had been discharged for employment misconduct
because Smalley engaged in argumentative and disrespectful behavior after being warned
not to do so. Smalley argues that the ULJ’s finding is not supported by the record. Smalley

6
contends that he was discharged in reta liation for (1) filing a complaint with DLI
concerning his earnings statements and (2) reporting safety concerns to a regional director.
Here, the parties’ testimony and record ev idence supports the ULJ’s finding that
three incidents led to Smalley’s discharge fo r unprofessional conduct. At the evidentiary
hearing, Smalley admitted that he received a “final counseling” warning on April 29 for
arguing with supervisors at a staff meeting and acknowledged that he was directed to
observe the highest standards of professionalism at all times. Although Smalley believed
that his conduct at the meeting was reasonable, he admitted that he “did strongly object”
to the announced policy. Smalley acknowl edged that he attende d a meeting on May 18
and admitted that he accused the district manager of telling a “bald-face[d] lie” and that he
was again asked to act professionally. Smalley further admitted that, on May 24, he told a
supervisor that she did not k now how to do the job and accu sed the supervisor of forcing
out another employee. The store manager testified that he observed the supervisor’s visibly
upset reaction to Smalley’s behavior on May 24 an d was advised by human resources to
discharge Smalley following the incident. Smalley’s own testimony corroborates the
employer’s account of the incidents that le d to his discharge and supports the ULJ’s
finding. To the extent that the parties disput ed the nature of Smalley’s conduct, the ULJ
found the store manager’s testimony to be mo re credible, and we defer to the ULJ’s
credibility determination. Stagg, 796 N.W.2d at 315.
With regard to Smalley’s first claim of retaliation, we conclude that the record
supports the ULJ’s finding that the employer discharged him for employment misconduct.
In April 2016, Smalley complain ed to DLI that Savers had refused to prov ide him with

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written earnings statements. On May 19, 2016, DLI addressed a letter to the store manager,
requesting a response to the complaint. According to Smalley, a software issue prevented
him from accessing his paystubs through his home computer and he requested that the store
provide written statements to him. The stor e manager testified that he was aware of
Smalley’s complaint and had offered Smalle y the option of printing his paystub from a
store computer at any time. Despite Smalle y’s dissatisfaction with the option of printing
his own paystubs and his complaint to DLI, th e record does not su pport the claim that
Savers discharged Smalley because of his complaint.
With regard to Smalley’s second claim of retaliation, we conclude that the record
supports the ULJ’s finding that the employer discharged him for employment misconduct.
Smalley reported potential fire-code violations to the regional director on May 5. The next
day, after viewing a coworker’s text message , Smalley complained to his manager and to
human resources about retaliation. The manager provided Smalley’s handwritten copy of
the text message to human resources. Afte r conducting an investigation, the employer
informed Smalley on May 18 that his compla int of retaliation was unsubstantiated. The
text messages may indicate that some em ployees speculated about Smalley being
terminated. However, Smalley was on “final counseling” status before contacting the
regional director. The empl oyer did not discharge Smalley following his report to the
regional director on May 5. Rather, the em ployer investigated Sm alley’s complaint of
retaliation and discharged him only after the separate incident on May 24.
Unemployment benefits are intended to support workers who have been discharged
from employment “through no fault of their own.” Stagg, 796 N.W.2d at 315 (quotation

8
omitted). Employment miscond uct includes conduct in “violation of the standards of
behavior the employer has the right to reasona bly expect.” Minn. Stat. § 268.095, subd.
6(a)(1). Even a single incident may cons titute employment misconduct if the employee
sufficiently disregards his or her employer’s expectations. Nieszner v. Minn. Dep’t of Jobs
& Training, 499 N.W.2d 832, 838 (Mi nn. App. 1993) (citing Ress v. Abbott Nw. Hosp.,
Inc., 448 N.W.2d 519, 524 (Minn. 1989)). Here, the employer provided multiple warnings
to Smalley that he act professionally. We c onclude that the ULJ’s findings of Smalley’s
unprofessional conduct, which have support in the record, establish disqualifying
employment misconduct.
Affirmed.