Mustafa Elkhatib, 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This opinion will be unpublished and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
A17-0767

Mustafa Elkhatib,
Relator,

vs.

E. A. Sween Company,
Respondent,

Department of Employment and Economic Development,
Respondent.

Filed January 8, 2018
Affirmed
Schellhas, Judge

Department of Employment and Economic Development
File No. 35274368-3

Mustafa M. Elkhatib, Shakopee, Minnesota (pro se relator)
1

Shannon M. McDonough, Andrew T. James, Fafinski Mark & Johnson, P.A., Eden Prairie,
Minnesota (for respondent E.A. Sween Company)

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

1 Some documents from the parties, and the ULJ spell “Elkhatib” as “El Khatib.” The
caption on appeal must match the caption in the ULJ’s decision. See Minn. R. Civ. App. P.
143.01. This opinion uses “Elkhatib,” which is used in the ULJ’s caption and also matches
relator’s signature in his brief.

2
Considered and decided by Halbrooks , Presiding Judge; Schellhas, Judge; and
Kirk, Judge.
U N P U B L I S H E D O P I N I O N
SCHELLHAS, Judge
Relator challenges the decision of an unemployment-law judge (ULJ) that he
committed employment misconduct and therefore is ineligible for unemployment benefits.
We affirm.
FACTS
Relator Mustafa Elkhatib began employmen t at respondent E.A. Sween Company
in July 2015 and suffered a work-related injury in April 2016. To accommodate Elkhatib’s
injury, Sween found and paid for Elkhatib’s employment at Arc Value Village Thrift Store
starting in November 2016. After consulting with Arc, Sween term inated Elkhatib’s
employment on December 19, 2016, for empl oyment misconduct. Elkhatib applied for
unemployment benefits. Respondent Minne sota Department of Employment and
Economic Development (DEED) determined that Elkhatib is ineligible for unemployment
benefits because Sween discharged him for misconduct. Elkhatib appealed the
determination.
A ULJ conducted a telephonic hearing, during which Sween’s representative and
Elkhatib testified. The ULJ found that “El Khatib submitted a timesheet . . . showing that
he worked four hours . . . then left before working the four hours. . . . He did not clock out.
He did not report the early departure on his own.” The ULJ concluded that Elkhatib’s
conduct “displayed clearly a serious violation of the standards of behavior that Sween had

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the right to reasonably expect of El Khatib,” and determined that Elkhatib’s actions rose to
the level of employment misconduct. The ULJ therefore decided that Elkhatib is ineligible
for unemployment benefits. The ULJ later affirmed the decision on reconsideration.
This certiorari appeal follows.
D E C I S I O N
This court may affirm, remand, reverse, or modify the ULJ’s decision if Elkhatib’s
substantial rights may have been prejudiced because the findings, inferences, conclusion,
or decision are unsupported by substantial ev idence in view of th e entire record. Minn.
Stat. § 268.105, subd. 7(d)(5) (Supp. 2017 ). An employee discharged for employment
misconduct is ineligible for unemployment be nefits. Minn. Stat. § 268.095, subd. 4(1)
(2016). “Employment misconduct means 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 r easonably expect of the employee; or (2) a
substantial lack of concern for the employment.” Id., subd. 6(a) (Supp. 2017). The statutory
definition of “employment misconduct” is exclusive. Wilson v. Mortg. Res. Ctr., Inc., 888
N.W.2d 452, 458 (Minn. 2016).
Whether an employee committed employmen t misconduct is a mixed question of
law and fact. Stagg v. Vintage Place Inc., 796 N.W.2d 312, 315 (Minn. 2011). “Whether a
particular act constitutes disqualifying conduc t is a question of law we review de novo.”
Wilson, 888 N.W.2d at 460. An appellate court “will narrowly construe the disqualification
provisions of the statute in light of their remedial nature, as we ll as the policy that
unemployment compensation is paid only to those persons unemployed through no fault

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of their own.” Stagg, 796 N.W.2d at 315 (quotation omitted). “In unemployment benefit
cases, the appellate court is to review the ULJ’s factual findings in the light most favorable
to the decision and should not di sturb those findings as long as there is evidence in the
record that reasonably tends to sustain them. Id.
“As a general rule, refusing to abide by an employer’s reasonable policies and
requests amounts to disqualifying misconduct.” Schmidgall v. FilmTec Corp., 644 N.W.2d
801, 804 (Minn. 2002). Here, the ULJ found that Elkhatib knew Arc’s policies for absences
and timesheet submission. Elkhatib admits that he agreed to accurately report his hours by
signing the employee-acknowledgement form a nd that he left work early. He has not
denied that he falsified his timesheet.
The ULJ found that Elkhatib’s early depa rture from work without permission, his
failure to disclose his early departure, an d his falsified timesheet constituted misconduct.
Elkhatib argues that he never intended to falsify his timesheet, that he both followed proper
procedure and was never made aware of the appr opriate procedures to follow, that he did
not alter later-submitted timesheet s, and that he left work ea rly due to pain that led to
hospital admission. The ULJ found Sween’s testimony to be more credible than Elkhatib’s
testimony because Arc had no reason to “shed itself of so meone who could provide a
service to Arc Value at no cost,” and the UL J found Elkhatib’s explanation of events not
credible. We defer to the UL J’s credibility determination. See Brisson v. City of Hewitt ,
789 N.W.2d 694, 696 (Minn. App. 2010).
We conclude that substantial evidence supports the ULJ’s fi ndings that Sween
discharged Elkhatib because he left work early without permission, failed to report his

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absence, and falsified his timesheet. We will not disturb these findings. Elkhatib’s decision
to leave work early without informing a supervisor and s ubmitting a timesheet reflecting
hours that he did not work violated Arc’s policies and constituted misconduct. See Ruzynski
v. Cub Foods, Inc. , 378 N.W.2d 660, 663 (Minn. Ap p. 1985) (affirming denial of
unemployment benefits where employee falsif ied his timesheet and failed to obtain
approval to leave work early, vi olating his employer’s policies); see also Hanson v.
Crestliner Inc., 772 N.W.2d 539, 543 (Minn. App. 2009) (“Generally, a single absence
without permission from the employer may amount to misconduct.”).
Substantial record evidence shows that Elkhatib intentionally committed a serious
violation of the standards of behavior that Arc and Sween had the right to reasonably expect
of him. The ULJ therefore did not err by de ciding that Sween discharged Elkhatib for
employment misconduct.
Affirmed.