Emily C. Dzurak, 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This opinion will be unpublished and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
A19-0487

Emily C. Dzurak,
Relator,

vs.

Discover Strength Personal Fitness Center, Inc.,
Respondent,

Department of Employment and Economic Development,
Respondent.

Filed November 25, 2019
Reversed
Rodenberg, Judge

Department of Employment and Economic Development
File No. 36849159-3

Emily C. Dzurak, Shorewood, Minnesota (pro se relator)

Discover Strength Personal Fitness Center, Inc., Bloomington, Minnesota (respondent
employer)

Anne B. Froelich, Department of Employm ent and Economic Development, St. Paul,
Minnesota (for respondent department)

Considered and decided by Ross, Presiding Judge; Rodenberg, Judge; and Jesson,
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 challenges the determination of an unemployment-law judge (ULJ) that
relator is not entitled to unemployment be nefits because she was discharged for
employment misconduct. Relator argues on cer tiorari appeal that, although she did not
satisfactorily perform the duties required of her by respondent-employer Discover Strength
Personal Fitness Center (Discover), her conduct did not amount to employment
misconduct. Because relator’s conduct was merely inefficient and not misconduct, relator
was not discharged for misconduct and is not ineligible to receive unemployment benefits
on that basis. We therefore reverse.
FACTS
Relator Emily Dzurak worked for two years as a personal trainer and strength coach
at Discover. Discover requires its employees to email clients daily, the objective being to
retain those clients. Each email is required to contain substantive and personal information
about the recipient. Discover also requires its employees to call former clients from its
“recapture” list. If an employee fails to fo llow these policies, the employee receives a
“strike.” When an employee re ceives three strikes, the employee is subject to having her
employment terminated.
On September 13, 2018, relator received her first strike after she failed to contact a
client on her recapture list because it “slipped [her] mind.” Relator received a second strike
the following month because she failed to call two more clients on her recapture list and
failed to send the required daily emails to several clients. Relator received her third strike

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and was discharged from employment after Disc over reviewed the contents of the emails
that relator did send. It determined that the emails were overly “generic” and not
sufficiently tailored to the individual recipient.
Relator sought unemployment benefits and was initially dete rmined to be eligible.
Discover appealed, and the case was heard by a ULJ. At the hearing, relator testified that
she failed to timely contact clients on her recapture list because she was “extremely busy”
and that it was a “time management issue.” Relator conceded that it was possible that some
of her emails to clients were overly generi c. Discover’s vice president of operations
testified that relator’s employment was terminated because she “fail[ed] to retain clients”
and exhibited a “lack of concern” for employment.
The ULJ determined that re lator is ineligible for unem ployment benefits because
she was discharged for employment misconduct. The ULJ concluded that Discover had a
reasonable right to expect its employees to follow company policies, especially if an
employee had previously been warned about de ficient conduct. The UL J stated that “[a]
single example of failing to call a client . . . would probably not be employee misconduct[,]”
but that “doing it again approximately two months later demonstrates a substantial lack of
concern for the employment.” On relator’s motion for reconsideration, the ULJ affirmed
the earlier determination.
This certiorari appeal followed.
D E C I S I O N
Relator argues that the ULJ erred in its de termination that relator is ineligible for
unemployment benefits because of employment misconduct. Relator does not argue that

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Discover had no right to terminate her employment, and she does not challenge any of the
ULJ’s factual findings concerning the facts underlying the three strikes she was given, but
contends that her conduct did not amount to misconduct.
At the outset, we do not consider the ar gument in relator’s initial brief that her
conduct resulted from attention deficit hyperactivity disorder (ADHD). Relator produced
no evidence to the ULJ concerning ADHD. The record therefore contains nothing to
suggest either that relator has ADHD or that the disorder caused any of her employment-
related deficiencies. We generally do not a ddress issues that were not presented to the
lower court. Thiele v. Stich , 425 N.W.2d 580, 582 (Minn. 1988). Relator’s argument
concerning ADHD, and the evidence supposedly supporting it, were not presented to the
ULJ. We therefore consider the question of whether relator engaged in employment
misconduct without regard to her arguments concerning her alleged ADHD.
Appellate courts may affirm, remand the ca se for further proceedings, or reverse
and modify the decision of a ULJ if the de cision violates the c onstitution, exceeds the
statutory authority or jurisdiction of the depa rtment, is made upon unlawful procedure, is
affected by other error of law, is unsupported by substantial evidence, or is arbitrary or
capricious. Minn. Stat. § 268.105, subd. 7(d) (2018).
An employee discharged for employm ent misconduct is ineligible for
unemployment benefits. Minn. Stat. § 26 8.095, subd. 4(1) (2018). 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

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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) (2018).
Whether an employee committed employ ment misconduct presents a mixed
question of law and fact. Peterson v. Nw. Airlines Inc., 753 N.W.2d 771, 774 (Minn. App.
2008), review denied (Minn. Oct. 1, 2008). Whether an employee committed a particular
act is a question of fact. Id. We view the ULJ’s findings of fact in the light most favorable
to its decision, and “will not disturb the ULJ’s factual findings when the evidence
substantially sustains them.” Skarhus v. Davanni’s Inc., 721 N.W.2d 340, 344 (Minn. App.
2006). But whether a particular act constitu tes misconduct is a question of law, and is
reviewed de novo. Stagg v. Vintage Place Inc., 796 N.W.2d 312, 315 (Minn. 2011).
The record supports the ULJ’s findings c oncerning the underlying facts of how and
why relator’s employment was terminated. Relator does not challenge those findings.
Relator concedes that her performance was unsatisfactory, but argues that her
performance deficiencies were not employment misconduct. Relator correctly posits that
employment misconduct under Minn. Stat. § 268.095, subd. 6(a), does not include
termination of employment that is the result of “inefficiency or inadvertence,” “simple
unsatisfactory conduct,” “conduct an average reasonable employee would have engaged in
under the circumstances,” “conduct that was a consequence of the applicant’s inability or
incapacity,” or “good faith errors in judgmen t if judgment was required.” Minn. Stat.
§ 268.095, subd. 6(b)(2)-(6) (2018).
We agree with relator that failing to send emails, sending generic emails, and failing
to call several former clients, while unqu estionably being grounds for termination of

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employment, do not amount to employment mi sconduct. It is simple unsatisfactory
conduct. Nothing in the record suggests a “serious violation of the [employer’s] standards
of behavior.” Minn. Stat. § 268.095, subd. 6(a)(1) (emphasis added). Neither do the facts
indicate any “substantial lack of concern” on relator’s pa rt. Minn. Stat. § 268.095, subd.
6(a)(2) (emphasis added).
In Stagg, the supreme court held that an employee who was habitually absent from
and tardy to work displayed a serious viola tion of the standards of behavior that his
employer had a reasonable right to expect. 796 N.W.2d at 317. It determined that the
employee’s actions rose to the level of misconduct. Id.; see also Flahave v. Lang Meat
Packing, 343 N.W.2d 683, 686 (Minn. App. 1984) (holding that multiple failures to report
to work without notice is employment miscond uct). To like effect, use of foul language
can amount to employment misconduct. Blau v. Masters Rest. Assoc., Inc. , 345 N.W.2d
791, 794 (Minn. App. 1984). The use of al cohol by an airline p ilot not diagnosed as
chemically dependent is employment misconduct. Peterson, 753 N.W.2d at 777. And
dishonesty is employment misconduct. Icenhower v. Total Auto., Inc., 845 N.W.2d 849,
856 (Minn. App. 2014), review denied (Minn. July 15, 2014).
Unlike these examples, and on our de novo review of whether relator’s employment
performance constitutes misconduct, relator’s conduct here was the result of inefficiency,
inadvertence, and simple unsatisfactory conduc t. It was not “a serious violation of the
standards of behavior the employer has the ri ght to reasonably expect of the employee.”
Minn. Stat. § 268.095, subd. 6(a)(1). An d, while the evidence shows unsatisfactory

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performance, it does not show a “substantial lack of concern for the employment.” Minn.
Stat. § 268.095, subd. 6(a)(2).
The issue in this appeal is whether, havi ng been discharged fo r the reasons given,
relator is ineligible for unemployment benefits. She is not. We defer to the ULJ’s factual
findings, but independently consider whether those findings support a determination that
relator committed employment misconduct. They do not.
Reversed.