Walter Nachtigall, Relator,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0339

Walter Nachtigall,
Relator,

vs.

Marriott International, Inc.,
Respondent,

Department of Employment and Economic Development,
Respondent.

Filed December 10, 2018
Affirmed
Reilly, Judge

Department of Employment and Economic Development
File No. 35891541-3

Walter E. Nachtigall, III, Minneapolis, Minnesota (pro se appellant)

Lee B. Nelson, St. Paul, Minnesota (for respondent department)

Considered and decided by Schellhas, Presiding Judge; Reilly, Judge; and Florey,
Judge.
U N P U B L I S H E D O P I N I O N
REILLY, Judge
Relator challenges the determination of an unemployment -law judge (ULJ) that he
is ineligible for unemployment benefits because he was discharged for employment

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misconduct. Because substantial evidence supports the ULJ’s determination that relator
committed employment misconduct by being dishonest, we affirm.
FACTS
Relator Walter Nachtigall III worked as a full-time bartender at Cedar and Stone, a
bar located in a JW Marriott hotel (Marriott), from November 2015 until August 2017 .
Marriott uses the Micros point-of-sale system (Micros) in order to process and track sales
of food and beverage. To access Micros, Marriott employees must swipe their individually
issued access cards. Relator was not a manager and his access card did not allow him to
void transactions or review co-workers’ financial transactions. Marriott required its
employees to request a manager’s assistance to void transactions in Micros. Relator knew
about this policy, and, at times, relator requested a manager to void transactions for him.
However, during a 2015 training, Marriott provided employees with a training code,
which allowed the employees to void transactions during training . The training code
inadvertently remained active after the conclusion of the training , and relator admittedly
used the training code to perform unauthorized activities in Micros . In 2017, one of
relator’s co -workers informed management that relator had manager -level access to
Micros. This allegation prompted an internal investigation.
During its investigation, Marriott determined that relator voided numerous
transactions in Micros. Marriott’s human resources staff confronted relator with print-outs
from Micros, which showed void transactions, using code: “MSPJW MGR TRAINER,”
on relator’s customers’ bills. But relator denied having any access that would allow him
to void transactions. Marriott discharged relator for providing untruthful information

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during the course of its investigation. Upon relator’s discharge, relator met with Marriott’s
general manager and admitted to using the training code in unauthorized ways.
Relator applied for unemployment benefits with the Minnesota Department of
Employment an d Economic Development (DEED). DEED determined that relator is
ineligible for unemployment b enefits because he was discharged for employment
misconduct. Relator appealed DEED’s determination and the ULJ conducted a telephone
hearing. Relator and a former Marriott employee testified on relator’s behalf and
Marriott’s hearing representative, dire ctor of human resources, human resources
supervisor, and restaurant manager testified on behalf of Marriott. The ULJ determined
that relator was discharged for employment misconduct and is therefore ineligible to
receive unemployment benefits. Upon r elator’s request for reconsideration, the ULJ
reviewed and affirmed its prior decision.
This certiorari appeal follows.
D E C I S I O N
Unemployment benefits are intended to provide financial assistance to persons who
have been discharged from employment “through no fault of their own.” Stagg v. Vintage
Place, Inc., 796 N.W.2d 312, 315 (Minn. 2011) (quotation omitted). Accordingly, a person
who has been discharged from employment based on “employment misconduct” is
ineligible to receive unemployment benefits. Minn. Stat. § 268.095, subd. 4 (2016); Stagg,
796 N.W.2d at 314. Whether an employee engaged in conduct that disqualifies the
employee from unemployment benefits is a mixed question of fact and law. Stagg, 796
N.W.2d at 315.

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I. The ULJ Did Not Err In Its Determination That Relator Was Dishonest.

Whether an employee committed a particular act is a question of fact viewed in the
light most favorable to the ULJ’s decision and affirmed if supported by substantial
evidence. Skarhus v. Davanni’s Inc., 721 N.W.2d 340, 344 (Minn. App. 2006). This court
will not disturb the ULJ’s factual findings when the evidence reasonably tends to support
those findings. Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).
Relator argues that he was honest duri ng the Marriott investigation. 1 This court
defers to the ULJ’s credibility determinations when they are supported by substantial
evidence and the ULJ sets forth a valid reason for crediting or discrediting the witness. See
Ywswf v. Teleplan Wireless Servs., Inc., 726 N.W.2d 525, 533 (Minn. App. 2007); see also
Minn. Stat. § 268.105, subd. 1a (a) (2016) (stating that the ULJ must set forth the reason
for crediting or discrediting testimony when credibility “has a significant effect on the
outcome of a decision”). During the hearing, relator testified that he “use[d] the code
maybe once a month,” but denied using it for the transactions human resources identified.
Relator further argued that Marriott food and be verage director, Keith Meadows, could
have “gained access to the information on the computer and has altered it or deleted or

1 Relator distinguishes the code he used as a “training code,” not a “manager’s code,” and
therefore asserts that he answered “no” honestly in response to questions regarding his
access to a manager code. However, Marriott’s director of human resources testified that
during Marriott’s investigation relator denied having or using “a code, a manager code, or
a manager card or any sort to make voids or any other transactions in the system as a
manager [would] ordinarily do.” We agree with the ULJ’s finding that “[t]he difference
between a ‘manager’s code,’ and a ‘training code’ or ‘trainee’s code’ continues to be a
distinction without a difference for purposes of establishing whether [relator] was
discharged for employment misconduct.”

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destroyed information.” The ULJ was not persuaded by rel ator’s version of events and
found:
To the extent that parties disagreed as to important facts, the
employer was more credible because it was logical, believable,
detailed and reasonable. For example, the employer produced
detailed computer records from its Micros system showing
Nachtigall’s use of the manager trainer codes on June 23, 29
and July 7, 2017. In contrast Nach tigall stated he could not
account for how his name was associated with the code usage
on these dates. Yet, he offered no specific evidence to dispute
those records, and so, he had no good faith reason to qu estion
or otherwise deny the employer’s computer records.
Nachtigall admitted he used the code after the end of the
training period on numerous occasions. He also stated that the
code “was probably meant to be shut down.” This shows that
Nachtigall knew he should not have been using the code when
he did.
The ULJ’s credibility determination is supported by substantial evidence in the record and
we affirm.
II. Relator’s Dishonesty Constitutes Employment Misconduct.
An applicant who is discharged by an employer for employment misconduct is
ineligible for unemployment benefits. See Minn. Stat. § 268.095, subd. 4 . Employment
misconduct is defined as “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) (2016). The legal question of whether the
particular act committed by the employee constitutes employment misconduct is reviewed
de novo. Skarhus, 721 N.W.2d at 344.

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The ULJ determined that relator was discha rged for employment misconduct
because the “employer also has the right to expect that [relator] answer its questions with
full disclosure.” The ULJ further reasoned that honesty is “ very important in the
workplace, especially regarding the conductin g of financial transactions.” Dishonesty
during an employer’s investigation can be a deliberate violation of “standards of behavior
which the employer has a right to expect of his employee.” Auger v. Gillette Co. , 303
N.W.2d 255, 257 (Minn. 1981) ; see also Baron v. Lens Crafters, Inc. , 514 N.W.2d 305,
307-08 (Minn. App. 1994) (“Dishonesty that is connected with employment may constitute
misconduct.”). Honesty was particularly important in this investigation because, according
to Marriott, financial documentation within Micros could be easily falsified using the
training code. Marriott had the right to reasonably expect that relator would answer its
questions honestly. Therefore, we affirm the ULJ’s determination that relator’s dishonesty
during Marriott’s investigation constitutes misconduct.
III. Relator Is Not Otherwise Entitled To Relief.

Relator’s pro se brief challenges the ULJ’s ineligibility determination on numerous
additional grounds. Relator fails to support his arguments with re levant facts or legal
authority. See State v. Manley , 664 N.W.2d 275, 286 (Minn. 2003) (deeming argument s
that include “no citation to any relevant legal authority” waived). However, in the interests
of justice, we analyze the arguments below.
First, relator argues that Marriott did not have a “specific policy” detailing that t he
use of the training code should not be continued after training. Whether an act qualifies as
employment misconduct is not dependent on whether an employee has an express “policy”

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regarding that behavior. See Brown v. Nat’l Am. Univ., 686 N.W.2d 329, 333 (Minn. App.
2004) (“We are aware of no law that requires that an employer have an express ‘policy’
regarding prohibited behavior for employees.”), review denied (Minn. Nov. 16, 2004).
Instead, the key question is whether the employee’s actions constitu te 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); Brown, 686 N.W.2d at 333.
Second, relator argues that his use o f the code was in good faith. Under the good-
faith-judgment exception, if judgment is required, a good -faith error in judgment is not
employment misconduct. Minn. Stat. § 268.095, subd. 6(b)(6) (2016). Because Marriott
terminated relator for dishonesty during the investigation, rather than continued use of the
training code, the good -faith-judgment exception does not apply. See Black’s Law
Dictionary 808 (10th ed. 2014) (defining “good faith” as honesty and the absence of intent
to defraud). However, even if we analyzed the continued use of the training code for good-
faith judgment, relator’s argument is not persuasive. “When an employee’s refusal to carry
out a directive of the employer is deliberate, calculated, and intentional, then the refusal is
misconduct.” Schmidgall, 644 N.W.2d at 806. Here, the record establishes that relator
was aware of the policy requiring employees to find a manager to void transactions and
that relator followed this policy at times. Relator testified that the training code “was meant
probably to be shut d own” and created a “possibility for abuse.” Additionally, the ULJ
found that relator first “denied to the employer that he used the code at all” and then later
“admitted he had” used the code. Relator’s “deliberate, calculated, and intentional” use of

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the training code in direct contradiction of relator’s knowledge of the employer’s
reasonable expectation constitutes misconduct. See id.
Third, relator argues that other employees continued to use the training code, which
he seems to assert is the same behavior for which he was discharged. However, relator
was discharged for being untruthful during the investigation, not for continued use of the
training code. Moreover, whether other employees violated the same rules is irrelevant to
the “sole question” o f whether the specific employee violated the employer’s rules.
Sivertson v. Sims Sec., Inc., 390 N.W.2d 868, 871 (Minn. App. 1986), review denied (Minn.
Aug. 20, 1986).
We affirm the ULJ’s decision that relator was discharged for employment
misconduct and is therefore ineligible to receive unemployment benefits.
Affirmed.