Robert Dietz, 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This opinion will be unpublished and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
A17-1285

Robert Dietz,
Relator,

vs.

Wal-Mart Associates, Inc.,
Respondent,

Department of Employment and Economic Development,
Respondent.

Filed March 12, 2018
Affirmed
Smith, Tracy M., Judge

Department of Employment and Economic Development
File No. 35581293-3

Robert Dietz, St. Cloud, Minnesota (pro se relator)

Wal-Mart Associates, Inc., St. Louis, Missouri (respondent employer)

Lee B. Nelson, Ryann M. Sparrow, De partment of Employment and Economic
Development, St. Paul, Minnesota (for respondent department)

Considered and decided by Bjorkman, Presiding Judge; Rodenberg, Judge; and
Smith, Tracy M., Judge.

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U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
Relator Robert Dietz appeals an unemp loyment law judge’s (ULJ) determination
that he is ineligible for unemployment be nefits because he was discharged due to
employment misconduct. Because the record supports the ULJ’s finding that Dietz was
discharged for repeated unapproved absences, and because Dietz’s absenteeism constituted
employment misconduct, we affirm.
FACTS
Dietz worked as a grocery support manager at a Walmart retail store in St. Cloud
from September 9, 2015, until his discharge on April 15, 2017.
Walmart maintained an em ployee-attendance policy duri ng Dietz’s employment.
Under the policy, employees received one “o ccurrence” point per unapproved absence,
three points per no-call, and one-half point per late-in or early-out. A no-call, no-show
absence thus resulted in four total points. An employee who accumulated more than nine
points or recorded three no-call, no-show abse nces during a continuous six-month period
was subject to termination. Employees coul d access their work sche dules through an in-
store computer or remotely with any inte rnet-capable device. Walmart posted its
employees’ work schedules three weeks in advance.
Dietz regularly worked a schedule of sh ifts on four consecutive days, Saturday
through Tuesday, followed by th ree consecutive days off. In early April 2017, the store
manager met with Dietz and the other suppor t managers and announced that she would
personally oversee all scheduling changes.

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On April 8, 2017, Dietz worked his normal Saturday shift. The next day, Dietz
arrived at Walmart and could not clock in. Dietz left the store without communicating with
anyone. On the following two days, Dietz again arrived for work, could not clock in, and
left without talking to anyone or verifying his work schedule. Dietz testified that he was
unable to view his schedule because he coul d not access the in-sto re timekeeping system
and because he lacked the technology to view his schedule remotely.
Dietz was scheduled to work on April 12, 13, and 14, but he di d not show up for
work and did not call in to report his absences for any of the three shifts. Dietz claimed
that he did not know that he was scheduled to work. According to Walmart, Dietz’s regular
work schedule had been changed and posted three weeks in advance. On April 15,
following Dietz’s three consecutive no-show, no-call absences, Walmart discharged Dietz
for excessive absences. Walmart reported that , at the time of Dietz’s discharge, he had
accrued 18.5 occurrence points du ring the previous six-month period, in violation of the
attendance policy.
Dietz applied for unemployment benefits. Respondent Minnesota Department of
Employment and Economic Development (DEED) determined that Di etz was ineligible
due to being discharged for employment misconduct. Dietz appealed the determination for
a de novo hearing before a ULJ pursuant to Minn. Stat. § 268.105, subd. 1(a) (2016).1

1 Portions of Chapter 268 were amended between the time Dietz applied for unemployment
benefits and the time of this appeal. Because those amendm ents are immaterial to the
resolution of this case, we cite the 2016 version of that chapter in this opinion.

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During the unemployment hearing, Dietz accused Walmart managers of a number
of “unethical practices,” which he claimed re sulted in his discharge. Dietz alleged that
managers made “unethical changes to schedulin g” and that they added occurrence points
to his attendance record. Dietz testified that he reported ethical violations by the managers
on four occasions to a global Walmart hotline.
Following the hearing, the ULJ determined that Dietz had been discharged for
employment misconduct and was therefore inelig ible to receive unemployment benefits.
The ULJ found that, in addition to three prev ious absences, Dietz was absent and did not
call in for three consecutive shifts on April 12, 13, and 14, 2017, resulting in his discharge.
The ULJ found that Dietz had reason to know his work schedule was changed when he was
unable to clock in on three consecutive days preceding the April absences, and that his
failure to verify his work schedule was unrea sonable. The ULJ dete rmined that Dietz’s
actions seriously violated Walmart’s reasonable expectation that its employees know when
they are scheduled to work and work when scheduled.
Dietz appeals.
D E C I S I O N
Dietz challenges the ULJ’s determination th at he was discharged due to employment
misconduct, arguing that the ULJ (1) made erroneous findings concerning his attendance,
(2) erred in determining that he committed employment misconduct, and (3) deprived him
of a fair unemployment hearing.

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I. Dietz was discharged fo r employment misconduct.
An employee generally is ineligible fo r unemployment benefits if he “was
discharged because of employment misconduct.” Minn. Stat. § 268.095, subd. 4(1) (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, arbitrary or capricious, or affected by other error of law. Minn.
Stat. § 268.105, subd. 7(d) (2016). “Whe ther an employee engaged 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 findings of fact
in the “light most favorable to the decision” and will not dist urb 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 employment
misconduct is a question of law, which we review de novo. Cunningham, 809 N.W.2d at
235.
A. Substantial evidence supports th e ULJ’s findings concerning Dietz’s
attendance.
Dietz contends the ULJ erroneously found that he accrued 18.5 “absences” during
the relevant six-month period leading up to his discharge and that Dietz was absent on the
day after his discharge. Dietz also contends that Walmart managers either falsified his
attendance record or intentiona lly changed his work schedule to cause his absences in
April.

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Here, contrary to Dietz’s claim, th e ULJ made no finding concerning Dietz’s
cumulative attendance record or that he was absent on the day after his discharge. The ULJ
found that Dietz admitted to absences on October 31, 2 016, December 10, 2016, and
February 28, 2017, and that Dietz did not dispute Walmart’s testimony that he was absent
and did not call in on April 12, 13, and 14, 2017. In re sponse to Dietz’s request for
reconsideration, the ULJ stated that, “reg ardless of [Walmart’s] attendance reports,
[Walmart] testified to six absences and Dietz did not dispute them.”
With regard to Dietz’s claim that mana gers falsified his attendance record or
changed his work schedule to cause his absences, Dietz provided no testimony or evidence
contesting any of the specific absences for which the ULJ found he was discharged, and he
did not allege that any specific absence in his attendance record had been falsified. Further,
Dietz did not dispute that Walmart posted his April schedule three weeks in advance. Dietz
said that he witnessed a manager remove another employee’s absence from that employee’s
record to allow the employee to continue to work, but he could not adequately explain the
relevance of the event to his claim. We conclude that th e record evidence supports the
ULJ’s findings that Dietz was absent on si x occasions, including three consecutive no-
show, no-call absences on April 12, 13, and 14, 2017, resulting in his discharge.
B. Dietz’s conduct constitutes employment misconduct.
Dietz argues that the ULJ erred in dete rmining that Dietz’s actions constitute
employment misconduct because they comprised a “single incident” and were reasonable.
Employment misconduct is defi ned, in part, as “any in tentional, negligent, or
indifferent conduct, on the job or off the job that displays clearly . . . a serious violation of

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the standards of behavior the employer has the right to reasonably expect of the employee.”
Minn. Stat. § 268.095, subd. 6(a)(1) (2016). Employment misconduct is not “simple
unsatisfactory conduct” or “conduct an average reasonable employee would have engaged
in under the circumstances.” Id., subd. 6(b)(3), (4) (2016). Even a single incident may
constitute 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 (Minn. App. 1993) (citing Ress v. Abbott Nw. Hosp., Inc., 448 N.W.2d 519, 524 (Minn.
1989)). “As a general rule, re fusing to abide by an empl oyer’s reasonable policies and
requests amounts to disqualifying misconduct.” Schmidgall v. FilmTec Corp., 644 N.W.2d
801, 804 (Minn. 2002). However, as Dietz points out, “[i]f the conduct for which the
applicant was discharged involved only a single incident, that is an important fact that must
be considered in deciding whether the conduct rises to the level of employment misconduct
. . . .” Minn. Stat. § 268.095, subd. 6(d) (2016).
“Whether an employee’s absenteeism and tardiness amounts to a serious violation
of the standards of behavior an employer has a right to expect depends on the circumstances
of each case.” Stagg, 796 N.W.2d at 316. We focus our inquiry on the conduct of the
employee, rather than on the conduct of the employer. Id. In Stagg, the Minnesota
Supreme Court upheld the ULJ’s determination that the employee seriously violated the
employer’s standards of behavior when the evidence showed that the employee was aware
of the expectation to follow the employer’s attendance policy and the employee failed to
follow it on five occasions. Id. at 317.

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Here, rather than a “single incident,” as Dietz claims, the ULJ made the
determination of employee misconduct on th e basis of six incidents of unauthorized
absenteeism, including three co nsecutive no-show, no-call absences on April 12, 13, and
14, 2017. Dietz contends that he acted reasonably in not verifying his April work schedule
because “[his] shift started at . . . noon . . . [and] any reasonable person would assume that
[the] [s]tore [m]anager . . . wa s at lunch, or on a conference call, or working the evening
shift, or taking personal time off, or not in the building or was in a meeting and not
available.” Dietz’s explanation defies common sense. The evidence shows that Dietz was
provided Walmart’s attendance policy when he was hired. The evidence also shows that
Dietz arrived for work on th ree consecutive days, April 9, 10, and 11, 2017, when he
thought he was scheduled to work. On each day, he was unable to clock in and therefore
had reason to know that his work schedule had been changed. Dietz admitted that he was
unable to verify his work schedule on his own and that he did not check with anyone about
his work schedule. We conclude that the ULJ’s findings that Dietz was absent on six
occasions and that he unreasonably failed to verify his April work schedule, which have
support in the record, establish disqualifying employment misconduct.
II. Dietz was not deprived of a fair unemployment hearing.
Dietz argues that he did not receive a fa ir unemployment hearing because the ULJ
did not ensure that all relevant facts were fu lly developed. Specifically, Dietz contends
that he intended to offer as evidence his reports to a global Walmart hotline concerning his
allegations of unethical attendance and scheduling practices by Walmart managers.

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The ULJ must conduct the unemploymen t hearing as “an evidence-gathering
inquiry” and “must assist all parties in the presentation of evidence.” Minn. R. 3310.2921
(2015); see Minn. Stat. § 268.105, subd. 1(b) (2016 ) (establishing DEED’s authority to
adopt procedural rules for unemployment h earings). “Unemployment-law judges have a
duty to reasonably assist pro se parties with the presentation of the evidence and the proper
development of the record.” White v. Univ. of Minn. Physicians Corp. , 875 N.W.2d 351,
355-56 (Minn. Ap p. 2016) (quotation omitted) (citin g Minn. R. 3310.2921 (2013)).
However, the ULJ remains neutral and does not act as either party’s advocate, even when
assisting unrepresented parties in th e presentation of their evidence. Stassen v. Lone
Mountain Truck Leasing, LLC, 814 N.W.2d 25, 32 (Minn. App. 2012).
The ULJ stated at the outset of the hearing that both parties “have the right to request
that the hearing be rescheduled if there is specific relevant eviden ce like documents or
witnesses that are outside of your control th at need to be obtained by subpoena.” Dietz
asked the ULJ if he could submit evidence afte r the hearing. The ULJ told Dietz that it
would be better to have the evidence beforeha nd, but that they could discuss it further if
something came up. Dietz indicated his desire to obtain and submit evidence of his reports
to the Walmart hotline, but then added, “But we’ll address that when it comes [up].” The
ULJ then began the hearing.
Dietz extensively testified on the content of his reports and on his allegations against
Walmart managers during the hearing. The ULJ asked Dietz several follow-up questions
to develop the record on his allegations. Throughout the hearing, the ULJ sought to elicit
testimony from Dietz concerning the specific dates that Walmart testified that he was

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absent. Dietz provided few specifics. Befo re closing the hearing, the ULJ asked Dietz
twice whether he had any more evidence to offer or whether he had any requests or
questions for anyone. At no point did Dietz offer the reports, ask the ULJ to subpoena the
reports, or ask Walmart to produce the reports. Further, in his request for reconsideration,
Dietz made no mention of the reports and ma de no request that the ULJ subpoena the
reports. Dietz provides no authority to claim that a ULJ is required to sua sponte subpoena
such evidence. We conclude that Dietz was not deprived of a fair unemployment hearing.
Affirmed.