Thomas Kutschke, 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This opinion will be unpublished and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
A17-1669

Thomas Kutschke,
Relator,

vs.

O’Reilly Automotive, Inc.,
Respondent,
Department of Employment and Economic Development,
Respondent.

Filed June 4, 2018
Affirmed
Reyes, Judge

Department of Employment and Economic Development
File No. 35634299-3

Thomas Kutschke, Cottage Grove, Minnesota (pro se relator)

O’Reilly Automotive, Inc., Springfield, Missouri (respondent employer)

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

Considered and decided by Worke, Presid ing Judge; Johnson, Judge; and Reyes,
Judge.

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U N P U B L I S H E D O P I N I O N
REYES, Judge
Relator challenges the decision of an unemployment-law judge (ULJ) determining
that relator was discharged from employment for misconduct for repeatedly using his cell
phone at work in violation of respondent-employer’s policies. We affirm.
FACTS
Relator Thomas Kutschke worked as a sales clerk with respondent-employer
O’Reilly Automotive, Inc., fro m January 29, 2017 until Ma y 9, 2017. Respondent-
employer discharged relator for five reasons : (1) using his personal cell phone during
working hours, despite repeated reminders that it is against company policy; (2) sitting on
a stool at the counter, often texting on his cell phone and not performing other store duties;
(3) exceeding expected delivery times; (4) asking for an unscheduled fifteen minute break,
leaving the store, and returning 45 minutes later; and (5) unsatisfactory work performance.
Shortly thereafter, relator applied for unemployment benefits with respondent
Minnesota Department of Employment an d Economic Development (DEED). DEED
determined relator to be eligible, and respondent-employer appealed. Relator and
respondent-employer’s district manager testified at a hearing with a ULJ. The ULJ found
that respondent-employer discharged re lator for reasons other than employment
misconduct and concluded that relator was eligible for unemployment benefits.
Respondent-employer requested reconsid eration and a second ULJ reversed,
concluding that a preponderance of the evidence showed that relator violated respondent-
employer’s reasonable employment expectations by repeatedly using his cell phone while
3
on the clock despite weekly coachings by the store manager. The ULJ noted that, although
relator may have been addressing family emergencies on some occasions, the evidence
showed that relator often used his cell phone for non-emergency reasons, such as looking
for a new job. The ULJ also determined that relator vi olated respondent-employer’s
reasonable expectations by leaving work fo r 45 minutes without approval. The ULJ
determined that realtor’s mi sconduct was intentional and i ndifferent and concluded that
relator is not entitled to unemployment benefits because he was discharged for employment
misconduct. This certiorari appeal follows.
D E C I S I O N
Relator argues that his cell-phone use di d not constitute misconduct because his cell-
phone use did not interfere with his job perfo rmance, and his co-workers used their cell
phones while on the clock. We are not persuaded.
An employee who is discharged for em ployment misconduct is ineligible for
unemployment benefits. Minn. Stat. § 268.095, subd. 4(1) (2016).1 Whether an employee
engaged in misconduct is a mixed question of fact and law, and “[w]hether a particular act
constitutes disqualifying conduct is a question of law that we review de novo.” Wilson v.
Mortg. Res. Ctr., Inc., 888 N.W.2d 452, 460 (Minn. 2016). We will not disturb the ULJ’s
factual findings if the evidence substantially sustains them. Stagg v. Vintage Place Inc. ,
796 N.W.2d 312, 315 (Minn. 2011).

1 Portions of Chapter 268 were amende d between the time relator applied for
unemployment benefits and the time of this appeal. However, because those amendments
are immaterial to the resolution of this case, we cite the 2016 version of the statute here.
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Employment misconduct includes “a serious violation of the standards of behavior
the employer has the right to reasonably expect of the employee.” Minn. Stat. § 268.095,
subd. 6(a)(1) (2016). An employee’s refusal to abide by an employer’s reasonable policies
and requests amounts to misconduct that disqualifies a person from unemployment
benefits. Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).
Here, respondent-employer’s policy manual clearly states that the “unauthorized use
of a cell phone or other electronic device[s] while on duty” is one of the “more serious
violations of the Rules of Conduct, which may result in disciplinary action up to and
including discharge.” Relator acknowledged this policy when he digitally signed the “New
Team Member Acknowledgment Agreement,” stating that he had “read and agree[d] to all
of the policies and notifications.” Relator admitted that his superv isor spoke with him
about his cell-phone use “maybe once a week,” or over ten times in the span of three
months. He admitted that he used his cell phone to receive phone calls from recruiters and
prospective employers and to communicate with family members, among other things.
Relator argues that his cell-phone use did not violate the expectation of his employer
because his other co-workers used their cell phones at work. But a “[v]iolation of an
employer’s rules by other employees is not a valid defense to a claim of misconduct.” Dean
v. Allied Aviation Fueling Co. , 381 N.W.2d 80, 83 (Minn. 19 86). Whether relator’s co-
workers were disciplined or discharged for using their cell phones is “not relevant” to our
review. Siverston v. Sims Security, 390 N.W.2d 868, 871 (Minn. App. 1986), review denied
(Minn. Aug. 20, 1986). Relator’s actions we re in direct contrave ntion of respondent-
employer’s cell-phone policy. We discern no error in the ULJ’s determination that relator
5
engaged in employment misconduct disqua lifying him from receiving unemployment
benefits.
Affirmed.