Robert Sheffel, 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This opinion will be unpublished and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
A18-0099

Robert Sheffel,
Relator,

vs.

Gavilon Grain, LLC,
Respondent,

Department of Employment and Economic Development,
Respondent.

Filed August 27, 2018
Affirmed
Schellhas, Judge

Department of Employment and Economic Development
File No. 35827618-3

Robert Sheffel, Cannon Falls, Minnesota (pro se relator)

Gavilon Grain LLC, c/o TALX UCM Services, Inc., St. Lo uis, Missouri (respondent
employer)

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

Considered and decided by Peterson, Presiding Judge; Cleary, Chief Judge; and
Schellhas, Judge.

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U N P U B L I S H E D O P I N I O N
SCHELLHAS, Judge
Relator challenges an unemployment-law judg e’s decision that he is ineligible for
unemployment benefits. We affirm.
FACTS
Relator Robert Sheffel began working as a union laborer for respondent Gavilon
Grain LLC (Gavilon) in March 2004. Gavil on’s code of conduct and harassment policy
prohibited harassing or threat ening a fellow employee or retaliating against a fellow
employee for reporting violations of Gavilon’s policies. Gavilon also reserved the right to
terminate any employee who engaged in retaliatory conduct toward another employee. In
late 2012 or early 2013, Gavilon discharged Sheffel for harassing and intimidating other
employees, including “threats directed towards other empl oyees.” But Gavilon offered
reemployment to Sheffel, and in April 2013, he signed a “l ast-chance agreement,” which
provided that “any violation of any company policy . . . will result in the immediate
termination of his employment,” and accepted reemployment with Gavilon.
On July 28, 2017, Sheffel participated in a dispute between two coworkers, T.K.
and C.L., regarding C.L.’s report of a safety concern to Ga vilon. C.L. claims that Sheffel
threatened him by stating, “If you want to argue about this, we can [go] outside the gates . . .
when we get off tonight at 7.” Multiple witnesses claimed to have heard this statement or
some variation of it. After investigating the incident, Gavilon terminated Sheffel’s
employment for violating its code of conduc t, harassment policy, and the last-chance
agreement.

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Respondent Minnesota Department of Employment and Economic Development
(DEED) determined that Sh effel was ineligible for une mployment benefits because
Gavilon discharged him for misconduct. Sheffel appealed the determination and an
unemployment-law judge (ULJ) conducted a hearing. Gavilon’s human-resources
manager, R.R., and plant manager, R.K., repres ented Gavilon at the hearing. Sheffel did
not deny that the dispute occurred but denied that he threatened C.L. Sheffel testified that
he told C.L. that they coul d talk at any time because Sheffel was a “union steward.” The
ULJ found Sheffel’s testimony not credible and the testimony of Gavilon’s representatives
credible. The ULJ therefore found that it was “more likely than not that Sheffel made the
comment to [C.L.] and intended the comment as a threat of physical harm,” and that
Sheffel’s conduct was a serious violation of th e standards of behavior that Gavilon had a
right to reasonably expect. The ULJ conc luded that Sheffel committed employment
misconduct and therefore was ineligible for unemployment benefits. Sheffel subsequently
requested reconsideration, and the same ULJ affirmed.
This certiorari appeal follows.
D E C I S I O N
This court may reverse the decision of a ULJ “if the substantial rights of the
petitioner may have been prejud iced because the findings, inferences, conclusion, or
decision are . . . unsupported by substantial evidence in view of the entire record as
submitted.” Minn. Stat. § 268. 105, subd. 7(d)(5) (Supp. 20 17). Whether an employee
engaged in employment misconduct is “a mixed question of fact and law.” Wilson v. Mortg.
Res. Ctr. , 888 N.W.2d 452, 460 (Minn. 2016). Whether a particular act constitutes

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employment misconduct is a question of law, which appellate courts review de novo. Id.
Whether an employee committed a particular act is solely a question of fact. Lawrence v.
Ratzlaff Motor Express Inc. , 785 N.W.2d 819, 822 (Minn. App. 2010), review denied
(Minn. Sept. 29, 2010).
An employee is ineligible for unemployment benefits if the employee is discharged
due to employment misconduct. Minn. Stat. § 268.095, subd. 4 (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).
Sheffel challenges the ULJ’s determina tion that he engaged in employment
misconduct. He first argues that the ULJ base d its decision on “false statements made
against [him],” noting that some of the witnesses mentioned “nothing to the effect of a
threat.” But the ULJ reviewed multiple witness statements about the incident. Three of the
statements, including C.L.’s, mentioned hearing Sheffel’s threat. In affirming the original
decision, the ULJ noted that the witness statements were credible because “they were
consistent and there was no reason why the witnesses would lie or make a false statement
about what they heard.” We defer to the ULJ’s assessment of the w itnesses’ credibility.
See Kubis v. Comty. Mem’l Hosp. Ass’n, 897 N.W.2d 254, 260 (Minn. 2017) (stating that
“assessment of witnesses’ credibility is the unique function of the trier of fact” (quotation
omitted). Because nothing in the record cont radicts the ULJ’s cred ibility determinations,
we conclude that the ULJ did not err by finding that Sheffel threatened C.L.

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Without citation to any legal authority, Sh effel next argues that his last-chance
agreement was void because it contained no end date. Even if the last-chance agreement
was void, which we do not determine, She ffel committed employment misconduct under
Gavilon’s policies and reasonable expectations and therefore is ineligible to receive
unemployment benefits.
Sheffel also claims that R.R. and R.K. told Sheffel’s union agent that Gavilon would
not dispute Sheffel’s application for unemployment benefits. Sheffel’s claim is based on a
statement allegedly made by a union represen tative—a third party unrelated to Gavilon.
And Sheffel raised this issue for the first time on appeal. Because Sheffel failed to raise
this issue below, we do not consider it. See In re Minnegasco, 565 N.W.2d 706, 713 (Minn.
1997) (declining to address issues not raised below).
“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). Gav ilon had multiple policies th at prohibited threatening
coworkers and that explicitly prohibited retaliation against any employee who raised a
concern or reported misconduct. Gavilon had a reasonable exp ectation that its employees
would not threaten other employees while at work. See id. at 806 (“[A]n employee’s
decision to violate knowingly a reasonable po licy of the employer is misconduct.”). Due
to Gavilon’s policies and Sh effel’s last-chance agreemen t, Sheffel knew that any
employment misconduct would result in termination of his employment.
We conclude that the ULJ did not err in finding that Sheffel’s threat to C.L. violated
Gavilon’s policies and reasonable expectations, and in concluding that Sheffel’s threat

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constituted employment misconduct. Because the ULJ’s determination that Sheffel
committed employment misconduct is supported by substantial evidence in the record, we
affirm the ULJ’s decision.
Affirmed.