Sharon Olsen, 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This opinion will be unpublished and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
A17-1829

Sharon Olsen,
Relator,

vs.

Lindberg Chiropractic,
Respondent,

Department of Employment and Economic Development,
Respondent.

Filed September 17, 2018
Affirmed
Halbrooks, Judge

Department of Employment and Economic Development
File No. 35723904-3

Sharon Olsen, Bloomington, Minnesota (pro se relator)

Lindberg Chiropractic, Bloomington, Minnesota (respondent employer)

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

Considered and decided by Halbrooks, Presiding Judge; Bjorkman, Judge; and
Hooten, Judge.

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U N P U B L I S H E D O P I N I O N
HALBROOKS, Judge
Relator challenges the unemployment-law judge’s (ULJ) determination that she is
ineligible for unemployment benefits bec ause she was discharged for employment
misconduct. We affirm.
FACTS
Relator Sharon Olsen was hired on May 22, 2017, to work as an assistant at
respondent Lindberg Chiropractic for approximately 30 to 34 hours per week. On June 9,
2017, Bruce Lindberg, D.C., the owner and sole chiropractor at Lindberg Chiropractic,
terminated Olsen’s employment.
Olsen applied for and began receiving unemployment benefits. Dr. Lindberg
appealed the department’s decision on the ground that Olsen was discharged for
employment misconduct. The ULJ held a hearing and determined that Olsen is ineligible
for unemployment benefits because her employment was terminated for her misconduct in
offering a competing product to a client.
Olsen filed a request for reconsideration. The ULJ affirmed the decision, reasoning
that Olsen relied on evidence in her request for rec onsideration that she did not introduce
at the evidentiary hearing and that (1) she had not demonstrated good cause for failing to
introduce the evidence at the initial hearing and (2) the evidence would not have likely
changed the outcome. This certiorari appeal follows.

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D E C I S I O N
On review, we may affirm or we may reverse or modify the decision of the ULJ or
remand the case for further proceedings if the substantial rights of the relator may have
been prejudiced because the findings, inferences, conclusion, or decision are affected by
an error of law, are unsupported by substantial evidence in the record, or are arbitr ary or
capricious. Minn. Stat. § 268.105, subd. 7(d)(4)-(6) (2016).
Whether an employee engaged in misconduct is a mix ed question of fact and law.
Wilson v. Mortg. Res. Ctr., Inc. , 888 N.W.2d 452, 460 (Minn. 2016). Whether the
employee committed the alleged act is a question of fact. Skarhus v. Davanni’s, Inc., 721
N.W.2d 340, 344 (Minn. App. 2006). We review the ULJ’s factual findings in the light
most favorable to the decision and will not disturb those 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). We give deference to the ULJ’s credibility determinations.
Icenhower v. Total Auto., Inc. , 845 N.W.2d 849, 855 (Minn. App. 2014) , review denied
(Minn. July 15, 20 14). “Whether a particular act constitutes disqualifying conduct is a
question of law we review de novo.” Wilson, 888 N.W.2d at 460.
An employee discharged for employment misconduct is ineligible for
unemployment benefits. 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 reasonably expect of the employee; or (2) a substantial lack of concern for
the employment.” Id., subd. 6(a) ( Supp. 2017). Employment mi sconduct is not “simple

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unsatisfactory conduct” or “good faith errors in judgment if judgment is required.” Id.,
subd. 6(b)(3), (6). Generally, an employee’s refusal “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).
An employee may commit misconduct by breaching her duty of loyalty to the
company. Marn v. Fairview Pharmacy Servs. , 756 N.W.2d 117, 121 (Minn. App. 2008),
review denied (Minn. Dec. 16, 2008). An employee violates her duty of loyalty by
soliciting her employer’s customers for herself or by otherwise competing with her
employer while employed. Rehab. Specialists, Inc. v. Koering , 404 N.W.2d 301, 304
(Minn. App. 1987). An employer has a legitimate interest in protecting itself against “the
deflection of trade or customers by the employee by means of the opportunity which the
employment has given him.” Webb Publ’g Co. v. Fosshage, 426 N.W.2d 445, 450 (Minn.
App. 1988) (quotation omitted).
Olsen asserts that she was discharged because she had an allergic reaction to
chemicals in the carpet cleaner. Olsen testified at the hearing that she thought that it was
a coincidence that Dr. Lindberg fired her on the same day that she had an allergic reaction
to the carpet cleaner. She testified that Dr. Lindberg was not empathetic to her reaction
and that she was thinking of leaving her job because she “didn’t think it was a good fit.”
Dr. Lindberg, in contrast , never testified about Olsen’s allergic reaction to the carpet
cleaner. He testified that he found Olsen’s work problematic from the very beginning
because she posted an advertisement without being asked to, did not follow the office script

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when answering the phone , changed office proce dures, spoke to a patient about a
competing product, and spoke negatively about him to patients.
The ULJ’s determination of misconduct was based on the following factual finding:
“Olsen brought a topical product that her friend makes to the office with her. This product
competes with a product sold by [Dr. Lindberg]. Olsen offered the product to a . . . client
in the waiting room. The client reported the offer to Lindberg.”
Olsen disputes this factual finding. Olsen acknowledged that she brought the
product to work but testified that she did so in order for Dr. Lindberg to review the
ingredients due to her allergies. Olsen claimed that she never discussed the product with a
client.
At the hearing, Dr. Lindberg testified that a patient informed him that , while she
waited for her appointment, Olsen told her that Olsen’s friend had a much better product
than the topical analgesic sold by Dr. Lindberg. Dr. Lindberg stated that it was “not
beneficial for [his] business to have somebody . . . talking about some other product.”
The ULJ found Dr. Lindberg’s testimony more credible than Olsen’s because Olsen
was unable to explain why Dr. Lindberg’s opinion of the product was important to her and
because it was more logical that Olsen brought the product to the office for the purpose of
trying to sell it to clients for her own gain or for the gain of her friend. Credibility
determinations are the exclusive province of the ULJ and will not be disturbed on appeal.
Skarhus, 721 N.W.2d at 345. The ULJ’s factual finding that Olsen offered the competing
product to a client is well-supported by Dr. Lindberg’s testimony, which the ULJ credited.
On this record, we conclude that the ULJ did not err by determining that Olsen is ineligible

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to receive unemployment benefits because she was discharged for employment
misconduct.
Affirmed.