Wendy Davis, 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This opinion will be unpublished and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
A17-2018

Wendy Davis,
Relator,

vs.

International Brotherhood of Electrical Workers #292 Health Care Plan,
Respondent,

Department of Employment and Economic Development,
Respondent.

Filed August 20, 2018
Affirmed
Rodenberg, Judge

Department of Employment and Economic Development
File No. 35830831-3

Wendy Davis, Loretto, Minnesota (pro se relator)

International Brotherhood of Electrical Workers #292 Health Care Plan , Minneapolis,
Minnesota (respondent-employer)

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

Considered and decided by Connolly, Presiding Judge; Johnson, Judge; and
Rodenberg, Judge.

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U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
Relator Wendy Davis appeals from an unemployment -law judge’s determination
that relator was terminated from her job as a full -time payroll auditor for employment
misconduct, rendering her ineligible for unemployment benefits. We affirm.
FACTS
Relator worked as a full -time payroll auditor at respondent International
Brotherhood of Electrical Workers # 292 from February 20, 2012 to August 8, 2017. On
August 8, 2017, the employer terminated relator’s employment after relator was alleged to
have made several threats against her supervisor and other office personnel.
The office manager reported to relator’s supervisor that relator stated at work that
relator believed that the supervisor was out to get her , and that relator stated that relator
could run into the supervisor at a bar and “it won’t be pretty.” The office manager further
reported that relator displayed her permit to carry a firearm and said that she was a “good
shot.” Based on the timing of these comments, t he office manager believed that relator
was indicating that her complaints about her supervisor and her statements about her legal
right to carry a firearm and ability to use one proficiently were rela ted. Relator also
allegedly told other employees that the supervisor was out to get her, and that management
would be better off if it kept relator employed. Relator was suspended without pay , and
the employer conducted an internal investigation which re vealed that appellant had made
similar comments to other employees. Relator was terminated after this investigation for
making threatening statements and for being dishonest in the investigative interview.

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Relator applied for unemployment benefits and was initially determined to be
ineligible because of employment misconduct . Relator appealed, and a hearing was held
before an unemployment -law judge (ULJ). The ULJ determined that relator had been
discharged because of employment misconduct and was therefore ineligible for
unemployment benefits. The ULJ affirmed that decision after reconsideration.
This appeal followed.
D E C I S I O N
We may only “reverse or modify the [ULJ’s] decision if the substantial rights of the
[relator] may have been prejudiced because the findings, inferences, conclusion, or
decision” violate constitutional provisions, exceed statutory authority, were made after an
unlawful procedure, are based on an error of law, are unsupported by the record evidence,
or are arbitrary or capricious. Minn. Stat. § 268.105, subd. 7(d) (2016). An employee who
is discharged for employment misconduct is ineligible to receive unemployment benefits.
Minn. Stat. § 268.095, subd. 4(1) (2016). “The question of whether an employee engaged
in conduct that disqualifies him or her from unemployment benefits is a mixed question of
fact and law.” Wilson v. Mortg. Res. Ctr., Inc. , 888 N.W.2d 452, 460 (Minn. 2016).
Whether an employee committed a particular act is a question of fact. Skarhus v. Davanni’s
Inc., 721 N.W.2d 340, 344 (Minn. App. 2006). We review factual findings “in the light
most favorable to the decision and will not disturb those findings as long as there is
evidence in the record that reasonably tends to sustain them.” Wilson, 888 N.W.2d at 460
(quotations omitted). “Whether a particular act constitutes disqualifying conduct is a

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question of law we review de novo.” Id. “Credibility determinations are the ex clusive
province of the ULJ and will not be disturbed on appeal.” Skarhus, 721 N.W.2d at 345.
The ULJ found that relator knowingly made threatening statements concerning her
supervisor and other employees and managers. The ULJ specifically found that relator told
coworkers that she believed that management was out to get her and “said in threatening
tones that it would be better for them if they kept her employed.” The ULJ also determined
that relator referenced and displayed her permit to carry a firea rm “to emphasize . . . the
threat she was making.” After relator’s coworkers reported these comments to the
employer, the employer investigated the allegations and interviewe d relator about the
comments. The ULJ found as a fact that r elator lied to the investigators about the alleged
threats.
The ULJ’s factual findings regarding relator’s conduct are supported by the record.
The ULJ specifically credited the testimony from the employer’s witnesses, found relator’s
testimony not credible, and explained the reasons for the credibility determinations made.
We defer to these credibility determinations. Skarhus, 721 N.W.2d at 344.
We next review whether relator’s conduct as found by the ULJ constitutes
disqualifying employment misconduct. Employment misconduct is “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.” Minn. Stat.
§ 268.095, subd. 6(a) ( 2016). “[W]hether the act committed by the employee constitutes

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employment misconduct is a question of law, which we review de novo.” Skarhus, 721
N.W.2d at 344.
After an internal i nvestigation, the employer concluded that relator made
threatening statements concerning her supervisor and other personnel, and made those
statements coupled with her comments concerning her legal right to carry a firearm and
her shooting proficiency . Such threats certainly demonstrate a serious breach of the
standards of behavior that an employer can reasonably expect of employees and display a
substantial lack of concern for the employment.
Relator argues that the ULJ erred in finding that her termination was because of
employment misconduct. Relator’s arguments largely challenge the ULJ’s credibility
determinations, arguing that her comments were not meant to be t hreatening, that her
testimony was not hesitant or untruthful, and that the test imony from the employer’s
witnesses had been “manipulated and embellished to the management’s benefit.” But the
ULJ, having heard the testimony, properly resolved these discrepancies by making explicit
credibility determinations . Wilson, 888 N.W.2d at 46 0. We will not disturb those
credibility findings where the record supports them. Skarhus, 721 N.W.2d at 344.
Relator also makes a number of arguments on appeal alleging that her supervisor
was bia sed against persons with mental -health issues and impleme nted unfair and new
leave policies. But the employer fired relator for making threatening statements and lying
to investigators, not for her use of leave time or for any medical reasons. We review the
ULJ’s determination that relator is ineligible for un employment benefits because of
employment misconduct based on the record provided to the ULJ . On this record, which

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supports the ULJ’s findings of fact, the ULJ did not err in concluding that relator was
terminated for employment misconduct.
Affirmed.