Barbara DeVora, Relator,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0887

Barbara DeVora,
Relator,

vs.

City of St. Paul,
Respondent,

Department of Employment and Economic Development,
Respondent.

Filed April 26, 2021
Affirmed
Ross, Judge

Department of Employment and Economic Development
File No. 37677668-4

Barbara DeVora, Vadnais Heights, Minnesota (relator pro se)

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

City of St. Paul, St. Paul, Minnesota (respondent employer)

Considered and decided by Ross, Presiding Judge; Connolly , Judge; and Smith,
Tracy M., Judge.
NONPRECEDENTIAL OPINION
ROSS, Judge
Barbara DeVora unsuccessfully sought unemployment benefits after the City of St.
Paul terminated her employment. An unemployment-law judge found that the Minnesota
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Department of Employment and Economic Development correctly determined that she was
ineligible because the city discharged her for employment misconduct. We affirm that
decision in this certiorari appeal because substantial evidence and an adequately developed
record support it.
FACTS
The City of St. Paul employed Barbara DeVora as a workers’ compensation claims
processor beginning in 2014, and it terminated her employment in 2019. The Minnesota
Department of Employment and Economic Development denied DeVora’s request for
unemployment benefits after her discharge . DeVora challenged that decision. An
unemployment-law judge (ULJ) held a hearing and made factual findings, which we
summarize here.
From 2017 to 2019, various incidents precipitated the city’s decision to discipline
DeVora. The city investigated her supervisor’s conduct and ordered DeVora not to discuss
the investigation with anyone. DeVora discussed her supervisor’s conduct with a coworker.
DeVora engaged in a shouting episode with a coworker. And in September 2019, DeVora
found and snooped through a personal journal belonging to a coworker, photocopying
portions of it. The city discharged DeVora the next month, citing her specific behaviors as
violations of its Workplace Conduct Policy and Civil Service Rules.
The ULJ found that, although “the record supports [DeVora’s assertion that she]
was treated rudely and unprofessionally by her supervisor and several coworkers, she also
engaged in conduct that was . . . unprofessional and unreasonable.” The ULJ concluded
that DeVora’s conduct constituted employment misconduct and that the city discharged
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her because of it. DeVora asked the ULJ to reconsider, and the ULJ affirmed. DeVora
appeals by certiorari.
DECISION
DeVora argues that the ULJ lacked an evidentiary basis to find that she committed
employment misconduct. A person fired for employment misconduct is not eligible for
unemployment benefits. Minn. Stat. § 268.095, subd. 4 (2020). “Employment misconduct
means any intentional, negligent, or indifferent conduct, on the job or off the job, that is a
serious violation of the standards of behavior the employer has the right to reasonably
expect of the employee.” Id., subd. 6(a) (2020). Whether an employee committed a
particular act is a question of fact, and whether the act constitutes employment misconduct
is a question of law. Icenhower v. Total Auto., Inc., 845 N.W.2d 849, 855 (Minn. App.
2014), review denied (Minn. July 15, 2014). We construe the ULJ’s factual findings in a
light favorable to his decision. Id. We will affirm a ULJ’s conclusion that an employer
terminated the employee for m isconduct unless his findings, inferences, conclusion, or
decision is not supported by substantial evidence in the full record. Minn. Stat. § 268.105,
subd. 7(d)(5) (2020).
In that framework, we affirm the ULJ’s findings. Although the evidence conflicted
in some respects, the ULJ heard testimony that DeVora engaged in a shouting match with
her coworker, discussed an on going investigation after being told not to, and read and
copied a coworker’s private journal without justification or permission. The ULJ based the
findings on his examination of the city’s applicable policies, correspondence between the
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city and DeVora, and testimony from DeVora, former coworkers, and the city’s
representative. We conclude that substantial evidence supports the ULJ’s findings.
DeVora counters by contending that her actions did not constitute employment
misconduct because she did not act intentionally, negligently, or indifferently towards the
city’s workplace expectations, citing Minnesota Statutes section 268.095, subdivision 6(a).
The contention fails. Failure to comply with reasonable workplace expectations is
generally employment misconduct. Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804
(Minn. 2002). And her intentional behavior of read ing and cop ying the private journal,
shouting at her coworker, and discussing an ongoing investigation all violate reasonable
expectations about which DeVora was aware. Each episode constitutes misconduct.
DeVora would have us conclude otherwise, arguing both that her alleged
misconduct was reasonable conduct in light of her anxiety and depression and that the
city’s real reason for terminating her was unlawful retaliation. Neither argument is
convincing. It is true that employment misconduct excludes “conduct that was a
consequence of the applicant’s mental illness or impairment” and “conduct an average
reasonable employee would have engaged in under the circumstances.” Minn. Stat.
§ 268.095, subd. 6(b)(1), (4) (2020). But DeVora points to nothing in the record that would
have required the ULJ to link her three acts of workplace misbehavior to asserted
mental-health issues. And although an employee is eligible to receive unemployment
benefits if her employer discharged her for a discriminatory reason, see Minn. Stat.
§ 268.095, subds. 4, 6 (2020), DeVora likewise points to nothing in the record to compel
the conclusion that the city acted to retaliate rather than to address misconduct.
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We similarly are not persuaded by DeVora’s administrative, due-process argument
that the ULJ failed to assist her during the proceeding. A ULJ must reasonably assist parties
to present evidence and develop the record. Minn. R. 3310.2921 (2019). Before the
hearing, the ULJ outlined DeVora’s right to call witnesses and question them, and he
discussed each witness DeVora wished to call and what information they may provide.
And during the hearing, the ULJ gave DeVora the opportunity to question each witness.
The ULJ questioned DeVora and her witnesses about her supervisor and coworkers
mistreating her, why they targeted DeVora , and whether they participated in the decision
to discharge her. The ULJ also questioned the city’s representative about the city’s reasons
for firing DeVora, reviewing each incident and why the city found it problematic. The ULJ
is a neutral arbiter of facts, not a partisan to act as either party’s counsel. The record
satisfies us that the ULJ met his regulatory duty to assist the parties.
DeVora raises other arguments, but they are either indirectly defeated by our
analysis of the other issues or are unrelated to any alleged errors in the ULJ’s decision.
Affirmed.