Shane K. Harris, 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This opinion is nonprecedential except as provided by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
A21-0710

Shane K. Harris,
Relator,

vs.

Westlund Excavating, LLC.,
Respondent,

Department of Employment and Economic Development,
Respondent.

Filed April 4, 2022
Affirmed
Cochran, Judge

Department of Employment and Economic Development
File No. 42606108-3

Shane Harris, Lake Park, Minnesota (pro se relator)

Westlund Excavating LLC, Lake Park, Minnesota (respondent employer)

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

Considered and decided by Johnson, Presiding Judge; Reyes, Judge; and
Cochran, Judge.
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NONPRECEDENTIAL OPINION
COCHRAN, Judge
Relator appeals an unemployment-law judge’s (ULJ) decision that relator engaged
in employment misconduct rend ering him ineligible for un employment benefits. We
affirm.
FACTS
Relator Shane Harris was hired by res pondent Westlund Excavating LLC (the
company) in March 2019. As part of his job, Harris worked in the shop and regularly drove
a pickup truck owned by the company. In April or May of 2020, Harris accidentally backed
the truck into a dumpster at the shop, causing damage to the truck—a cracked taillight and
a long, indented scratch. Harris spray-painte d over the damage. After receiving a report
of the damage, company owner Steve Westlu nd asked Harris about it over the phone.
Harris responded that there was no damage. After noticing the damage in person about a
month later, Westlund discharged Harris for lying about damaging the truck.
Harris applied for unemployment benefits. Respondent Minnesota Department of
Employment and Economic De velopment made an administ rative determination that
Westlund had discharged Harris for damaging company property but that “[Harris’s]
actions were not intentional, negligent, or indifferent, and therefore were not employment
misconduct.” Based on this determination, Harris was deemed eligible for unemployment
benefits. The company appealed.
A ULJ conducted a de novo hearing. Bo th Harris and Westl und testified. In
addition to the facts noted above, Harris testifie d that he initially lied to Westlund about
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the damage to the truck because he did not want to get in tr ouble. After the hearing, the
ULJ issued a written decision in which he dete rmined that, by lying about the damage to
the truck, Harris committed an act of dishonesty that constituted employment misconduct.
On that basis, the ULJ concluded that Harris had been discharged because of employment
misconduct and was therefore ineligible fo r unemployment benefits. Harris sought
reconsideration, and the ULJ affirmed the original decision.
Harris appeals by writ of certiorari.
DECISION
Harris challenges the ULJ’s determination th at the company discharged Harris for
employment misconduct. When reviewing a UL J’s decision, this court may affirm the
decision of the ULJ or remand the case for fu rther proceedings. Minn. Stat. § 268.105,
subd. 7(d) (2020). Alternatively, we may reverse or modify the decision if the substantial
rights of the relator have been prejudiced b ecause, among other things, the decision is
affected by an error of law or is unsupported by substantial evidence. Id.
An employee discharged for employme nt misconduct is ineligible for
unemployment benefits. Minn. Stat. § 268.095, subd. 4(1) (2020). Whether an employee
committed employment misconduct is a mixed question of law and fact. Wilson v. Mortg.
Res. Ctr., Inc., 888 N.W.2d 452, 460 (Minn. 2016). “Whether the employee committed a
particular act is a question of fact.” Peterson v. Nw. Airlines Inc. , 753 N.W.2d 771, 774
(Minn. App. 2008), rev. denied (Minn. Oct. 1, 2008). We view the ULJ’s factual findings
in the light most favorable to the ULJ’s d ecision and give defere nce to the credibility
determinations made by the ULJ. Id. We will not disturb the ULJ’s factual findings that
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are substantially supported by the record. Id. Whether a particular act or acts committed
by the employee constitute misconduct is a question of law that we review de novo. Id.
With this legal background in mind, we turn to the specific arguments raised on
appeal by Harris. Harris contends that the ULJ’s decision requires reversal because (1) the
record does not support the ULJ’s finding that he was dishonest with his employer about
the damage to the company truck; (2) his actions did not constitute employment
misconduct; and (3) he did not receive a fair hearing. He also appears to argue (4) that the
ULJ abused his discretion by denying an ad ditional hearing based on Harris’s request for
reconsideration. We address each issue in turn.
I. Substantial evidence supports the ULJ’s factual finding and credibility
determination that Harris was dishonest.

The ULJ found that “Harris intentionally lied to Westlu nd about [the] damage to
[the] company-owned truck in order to avoi d being in trouble.” The ULJ based this
determination on the testimony at the heari ng. Harris argues that the record does not
support this finding.
Based on our careful review of the hearing testimony, we conclude that substantial
evidence in the record supports the ULJ’s finding. Substantial evidence is “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Gonzalez Diaz v. Three Rivers Cmty. Action, Inc. , 917 N.W.2d 813, 816 n.4 (Minn.
App. 2018) (emphasis omitted) (quotation om itted). Westlund’s te stimony as well as
Harris’s own testimony provides substantial evidence to support the ULJ’s finding.
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Westlund testified as follows . In July 2020, an employe e told Westlund that the
company truck that Harris drove looked damaged. But, when Westlund asked Harris about
it over the phone, Harris told Westlund that “nothing had happened to his pickup.”
Westlund did not investigate a ny further at that point. Approximately a month later,
Westlund saw the truck near Harris’s home a nd noticed that it was da maged. Later that
same day, Westlund told Harris that he saw the damage to the truck. Harris replied that he
was sorry about the damage. Westlund asked Harris why he did not tell Westlund about
the damage when Westlund asked him about it in July. Accordin g to Westlund, Harris
“didn’t have much to say” other than that he would be willing to pay for the damage in
order to keep his job.
At the hearing, Harris admitted to dama ging the truck and putting “some touchup
paint on it.” And when the ULJ asked Harris if he had been “truthful with [Westlund]
when he called . . . to ask about damage to the truck,” Harris said, “No.” When prompted,
Harris explained that he did not tell the truth because he “figured [he would] be in trouble
for that.” The testimony of Harris and Westlund provides ample support for the ULJ’s
finding that Harris “intentionally lied to We stlund about damage to a company-owned
truck in order to avoid being in trouble.”
The ULJ also made credibility determinations. The ULJ found that “[t]o the extent
that the parties disagreed, Westlund’s tes timony was more credible than Harris’[s]
testimony because [Westlund’s] te stimony was direct, detailed, specific, consistent and
followed the most logical chain of events .” We defer to the ULJ’s credibility
determinations. Skarhus v. Davanni’s Inc., 721 N.W.2d 340, 344 (Minn. App. 2006).
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Harris argues that the ULJ’s finding that Harris lied to Westlund about the damage
to the truck is erroneous because Westlund “did not ask about damage” but instead “asked
about what had spilled do wn the side of the truck.” At the hearing, however, Harris did
not provide any testimony that Westlund had asked about a spill down the side of the truck.
Rather, at the hearing, Harris confirmed that Westlund had asked him about “damage” to
the truck. He also confirmed that he did not tell the truth when Westlund asked him about
the damage. Because our review of the ULJ’s factual finding is limited to the record from
the evidentiary hearing, we reject this argument and conclude that substantial evidence in
the record supports the ULJ’s finding. See Minn. Stat. § 268.105, subd. 7(d)(5)
(establishing that the court of appeals may reverse or modify a decision if it is “unsupported
by substantial evidence in view of the hearing record as submitted” (emphasis added)); see
also Minn. R. 3310.2922 (2021) (providing that “[o]nly evidence received into the record
of any hearing may be considered by the unemployment law judge”).
II. Harris’s actions constitute employment misconduct.

Having determined that substantial evidence supports the ULJ’s factual finding that
Harris lied to his employer about the damage to the truck, we next c onsider whether that
act constitutes employment misconduct. “Emp loyment misconduct” is “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 ri ght to reasonably expect of the employee.”
Minn. Stat. § 268.095, subd. 6(a) (2020). But “simple unsatisfactory conduct” and “good
faith errors in judgment if judgment wa s required” are not employee misconduct. Id.,
subd. 6(b) (2020). And if an employee is discharged for conduct involving “only a single
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incident, that is an important fact that must be considered in deciding whether the conduct
rises to the level of employment misconduct.” Id., subd. 6(d) (2020).
“Dishonesty that is connected with em ployment may constitu te misconduct.”
Baron v. Lens Crafters, Inc. , 514 N.W.2d 305, 307-08 (Minn. App. 1994) (determining
that employee’s “failure to perform his job responsibilities, coupled with his dishonesty
about that failure, constituted misconduct”); Cherveny v. 10,000 Auto Parts ,
353 N.W.2d 685, 688 (Minn. App. 1984) (conc luding that employee’s dishonesty in
employer’s investigation into alleged theft was employment misconduct because employee
“had a duty to be truthful in his responses” and “dishonesty was a de liberate violation of
standards of behavior which the employer has the right to expect of his employee”
(quotation omitted)). Employers are reasonably entitled to expect honesty from their
employees, and an employee’s dishonesty nega tively affects an employment relationship
when it means that the employee can no longer be entrusted with job responsibilities. See
Skarhus, 721 N.W.2d at 344 (holding that thoug h employee’s theft was of less than four
dollars in value, it undermined employer’s ability to entrust employee with job
responsibilities and therefore constituted employment misconduct).
Here, the ULJ found that “Harris’[s] conduct was a serious violation of [Westlund’s]
reasonable expectations” because Harris inte ntionally lied by denyi ng that there was
damage to the company truck when Westlund asked about it. The ULJ concluded that
“[t]his issue, by itself, amounts to employme nt misconduct because it is an act of
dishonesty.” We agree.
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Harris violated a standard of behavior that his employer had a right to reasonably
expect by lying to Westlund about the dama ge to the company truck. By damaging
company property and then ly ing about it, Harris undermin ed the company’s ability to
entrust him with job responsibilities like con tinuing use of the truc k. And though Harris
engaged in only a single act of dishonesty, a single incident is sufficient to establish
employment misconduct. Schmidgall v. FilmTec Corp. , 644 N.W.2d 801, 806
(Minn. 2002). We therefore conclude th at Harris’s act of dishonesty constituted
employment misconduct.
We are not persuaded otherwise by Harri s’s additional argume nts supporting his
contention that his actions do not constitute employment misconduct. First, he argues that
he did not deliberately violate any standards of behavior because his employment contract
“did not state anything about reporting damages.” But determining whether an act qualifies
as employment misconduct does not depend on whether an employer has an express policy
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 empl oyer have an express
‘policy’ regarding prohibite d behavior for employees.”), rev. denied (Minn. Nov. 16,
2004). Therefore, this argument fails.
Next, Harris argues that the damage to th e truck did not cause “any adverse effect
on the employer.” To support this assertion, he points to the fact that Westlund continued
to use the truck and had not yet repaired it at the time of the hearing. This argument also
misses the mark. The statutory definition of employment misconduct—conduct that is “a
serious violation of the standards of behavi or the employer has the right to reasonably
9
expect of the employee”—does not require proof of an adverse effect on the employer. See
Minn. Stat. § 268.095, subd. 6(a). And, as discussed above, employee dishonesty may
have an adverse effect on an employer simp ly by undermining the employer’s ability to
entrust the employee with certain job responsibilities.
Finally, Harris seems to suggest that his actions fall under several of the categories
defined by statute as “not employment misconduct.” See Minn. Stat. § 268.095, subd. 6(b)
(2020). However, because Harris has not adequately briefed this argument or supported it
with citations to the record, we decline to address it. See State Dep’t of Lab. &
Indus. v. Wintz Parcel Drivers, Inc. , 558 N.W.2d 480, 480 (Min n. 1997) (noting that a
reviewing court may decline to reach issu es that are not adequately briefed);
Scheffler v. City of Anoka, 890 N.W.2d 437, 451 (Minn. A pp. 2017) (stating that a party
forfeits a claim by failing to suppor t it with argument or authority), rev. denied (Minn.
Apr. 26, 2017).
III. Harris received a fair hearing.
Harris also contends that he did not receive a fair hearing. A ULJ must conduct the
hearing “as an evidence-gathering inquiry.” Minn. R. 3310.2921 (2021). In doing so, the
ULJ “must assist all parties in the presentati on of evidence” and control the hearing “in a
manner that protects the parties’ rights to a fair hearing.” Id.
Harris asserts that the ULJ “failed in his statutory duty to assist Harris in developing
the record” and “almost completely preclude d Harris from doing so on his own.” Harris
further asserts that the ULJ “repeatedly obstr ucted Harris’s attempts to answer questions
10
both by explicitly cutting off the questioning and by discouraging Harris from telling what
he truthfully wanted to say.” We disagree.
A careful review of the hearing transcript informs us that the ULJ fulfilled his duty
to assist in the development of the record and did not prevent or discourage Harris from
testifying. The transcript reflects that the ULJ asked Harris a series of questions at the
hearing about the damage to the company truck and about his conversations with Westlund.
The ULJ’s questions to Harris suggest that th e ULJ was trying to clarify the record, not
interfere with Harris’s testimony. The ULJ al so specifically asked Harris if there was
anything else he would like to add, if there were any other questions he would like to ask,
and whether he would like to give a closing st atement. Harris declined each opportunity.
We therefore reject Harris’s claim that he did not receive a fair hearing.
IV. The ULJ’s decision denying Harris’s request for an additional hearing on
reconsideration did not involve an abuse of discretion.

Finally, Harris appears to challenge the ULJ’s decision on reconsideration to deny
his request for an additional hearing. We review a ULJ’s decision not to hold an additional
hearing for an abuse of discretion. Skarhus, 721 N.W.2d at 345.
Upon receipt of a timely request for recons ideration, the ULJ must issue an order
affirming the original decision, modifying the original decision, or setting aside the original
decision and ordering an additional hearing. Minn. Stat. § 268.105, subd. 2(f) (2020). In
deciding a request for reconsideration, a ULJ “must not consider any evidence that was not
submitted at the hearing, except for purposes of determining whether to order an additional
hearing.” Id., subd. 2(c) (2020). A ULJ must order an additional hearing if a party shows
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that evidence not submitted at th e original hearing “(1) would likely change the outcome
of the decision and there was good cause for not having previously submitted that evidence;
or (2) would show that the evidence that was submitted at the hearing was likely false and
that the likely false evidence had an effect on the outcome.” Id.
In his request for reconsideration, Ha rris presented new information about his
discussion with Westlund and a new theory as to why he was discharged. He asserted that
he was sleeping when Westlund called to ask about the damage to the truck, he therefore
did not understand th e question Westlund asked abou t the damage, and he was not
intentionally dishonest in his response to Westlund. Harris also suggested that Westlund
used dishonesty as pretext for his discharge and that Westlund actually discharged him for
personal reasons related to Harris’s divorce and his wife’s rela tionship with another
employee at the company.
The ULJ considered Harris’s request for re consideration and affirmed the original
decision. In the order denying Harris’s reque st, the ULJ explained that the information
Harris presented in his request for reconsid eration did “not show that the evidence
submitted at the hearing was likely false,” an d Harris did not have good cause for failing
to provide the information during the original hearing.
We discern no abuse of discretion by the ULJ in reaching this decision. In his
request for reconsideration, Harris did not gi ve any reason as to wh y he could not have
provided this additional information at the evidentiary hearing. And, as noted above, the
ULJ specifically asked Harris if he had any additional testimony that he wanted to present
before concluding the hearing. Because Harri s offered no explanation of good cause for
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not providing this information at the hearing, we conclude that the ULJ did not abuse his
discretion by affirming the original decision on reconsideration.
Conclusion
In sum, the ULJ’s relevant findings of fact are supported by substantial evidence
and not clearly erroneous, the actions fo r which Harris was discharged constitute
employment misconduct, Harris received a fair hearing, and the ULJ did not abuse his
discretion by denying an additional hearing.
Affirmed.