Lonnie Moss, 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This opinion is nonprecedential except as provided by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
A21-1091

Lonnie Moss,
Relator,

vs.

Masterson Personnel Inc,
Respondent,

Department of Employment and Economic Development,
Respondent.

Filed May 2, 2022
Reversed
Cochran, Judge

Department of Employment and Economic Development
File No. 43655385-2

Lonnie D. Moss, New Hope, Minnesota (pro se relator)

Masterson Personnel, Inc., Plymouth, Minnesota (respondent employer)

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

Considered and decided by Reyes, Presiding Judge; Johnson, Judge; and
Cochran, Judge.
NONPRECEDENTIAL OPINION
COCHRAN, Judge
Relator challenges the decision of an une mployment-law judge (ULJ) that he is
ineligible for unemployment benefits be cause he was discharged for employment
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misconduct. Because the ULJ erred as a matter of law by determining that relator engaged
in employment misconduct, we reverse.
FACTS
Relator Lonnie Moss was briefly employed by respondent Masterson Personnel Inc.
between September 8 and October 15, 2020. After his empl oyment ended, Moss applied
for unemployment benefits. An administrativ e clerk employed by respondent Minnesota
Department of Employment and Economic Development (DEED) denied his request.
Moss appealed that decision to a ULJ, who held a de novo evidentiary hearing. The
following summarizes the ULJ’s factual findings and legal conclusions.
In September 2020, Moss began working for Masterson Personnel, a staffing
service, and was assigned to a temporary position as a pr oduct assembler at Dittrich
Specialties. On October 14, 2020, Moss r eceived permission from the lead Dittrich
Specialties’ employee on his shift to leave work early due to a family emergency. The
production supervisor at Dittrich Specialties th en sent out an email stating that Moss had
quit his job assignment. The following day, October 15, Moss learned that there was a
rumor going around that he had quit, and he believed the lead employee had spread the
rumor. During his shift that day, Moss saw the lead employee in the breakroom and asked
him why he was spreading a rumor that Moss had quit his job assignment. The
conversation became loud, and the lead employee walked away.
The production supervisor then entered the breakroom and said that he was unhappy
about having to deal with the situation. The supervisor also told Moss that the supervisor,
not the lead employee, had sent an email stat ing that Moss had quit. The supervisor was
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upset and spoke in a raised voice. Moss said so mething to the effect of “[t]his is not that
serious,” but the supervisor did not calm down. The superv isor then uttered the first
syllable of the “N word.” The supervisor stopped himself from saying the entire word and
immediately began repeating “I’m not a racist , I’m not a racist.” At that point, Moss
gathered his belongings and started walki ng toward the timeclock. The supervisor
followed Moss and told him, “You don’t work here anyway, you’re gone.” Following the
incident, Masterson Personnel told Moss not to return to Dittrich Sp ecialties. Masterson
Personnel investigated the matter and did not offer Moss another assignment.
After the hearing, the ULJ issued a decision concluding that Moss had been
discharged for employment misconduct and is therefore ineligib le for unemployment
benefits. In the decision, the ULJ credite d Moss’s version of events, noting that his
testimony described “the most probable course of events.” However, the ULJ determined
that Moss engaged in employment misconduct by having “confrontations” with both the
lead employee and the production supervisor and then starting to walk off the job without
permission. Moss filed a request for reconsideration, and the ULJ affirmed the decision.
Moss appeals by writ of certiorari.
DECISION
Moss challenges the ULJ’s determinatio n that his discharge was based on
employment misconduct and that he is theref ore ineligible for unemployment benefits.
DEED agrees with Moss that the ULJ’s decision should be reversed. In a letter filed in lieu
of a respondent’s brief, DEED concedes that the ULJ erred as a matter of law by concluding
that Moss’s actions on October 15, 2020, constituted employment misconduct.
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A person discharged for employment misc onduct is ineligib le for unemployment
benefits. Minn. Stat. § 268.095, subd. 4(1) (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 em ployer has the right to reasonably expect of
the employee.” Id., subd. 6(a) (2020). Where, as here, the ULJ’s factual findings are not
in dispute, this court applies a de novo standard of review to determine whether the relator’s
actions were employment misconduct. Wilson v. Mortg. Res. Ctr., Inc., 888 N.W.2d 452,
460 (Minn. 2016). We may reverse or modify a ULJ’s decision if, among other things, the
decision was affected by an error of law or is unsupported by substantial evidence. Minn.
Stat. § 268.105, subd. 7(d) (2020).
The ULJ determined that Moss engaged in employment misconduct by having
“confrontations” with the lead employee and the production supervisor and then “start[ing]
to walk off [the job] before he was told to leave.” The ULJ reasoned that “[a]n employer
can reasonably expect that a temporary empl oyee will not confront co-workers at a job
assignment and then walk off the job” and that “Moss’s conduct displayed a serious
violation of the standards of behavior [Mas terson Personnel] had a right to reasonably
expect.” We agree with the parties that the ULJ’s decision is not supported by the ULJ’s
own factual findings and is legally incorrect.
We begin our analysis by addressing whet her Moss’s interactio ns with the lead
employee constitute employment misconduct. The ULJ conc luded that Moss engaged in
employment misconduct in part by “confronting” the lead employee. While an employer
has a right to reasonably expect that an em ployee will not e ngage in a hos tile or angry
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manner with another employee, the fact ual findings by the ULJ do not support the
conclusion that Moss’s interactions with the lead employee amounted to a serious violation
of reasonable employer expectations. The onl y findings the ULJ made with respect to
Moss’s interaction with the lead employee were that Moss “asked [the lead employee] why
he was spreading a rumor [that Moss] quit,” the “conversation became loud,” and the lead
employee then “walked away.” The ULJ did not find, and there is no record evidence, that
Moss engaged in any physical aggression or used any inappropriate language. And, while
the ULJ found that the conversation “became loud,” there is no evidence or factual finding
that Moss raised his voice at any point or was otherwise disruptive. Moss’s disagreement
with the lead employee, w ithout more, does not constitu te employment misconduct. Cf.
Potter v. N. Empire Pizza, Inc., 805 N.W.2d 872, 874, 876 (Minn. App. 2011) (concluding
employee committed misconduct when he became angry with coworker and poked him in
the ribs), rev. denied (Minn. Nov. 15, 2011).
The ULJ also erroneously concluded that Moss’s interaction with the production
supervisor supported a determination of em ployment misconduct. The ULJ’s conclusion
was based on a determination that Moss “confront[ed]” the supervisor—a determination
that is not supported by the ULJ’s own factual findings. The ULJ did not find that Moss
confronted the supervisor. To the contrary, the ULJ found, and the record evidence shows,
that it was the supervisor who confronted Moss, and it was the supervisor who raised his
voice and began to use a racial slur. And, as with Moss’s interaction with the lead
employee, the ULJ made no findings, and ther e is no record evidence, that Moss used
inappropriate language or was di sruptive or physically aggre ssive while speaking to the
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production supervisor. Nothing about Moss’ s conduct during his interaction with the
supervisor indicates that Moss seriously violated a reasonable expectation of his employer.
Lastly, the ULJ erred by determining that Moss engaged in employment misconduct
by deciding to leave work without permission. Employment misconduct does not include
“conduct an average reasonable employ ee would have engaged in under the
circumstances.” Minn. Stat. § 268.095, su bd. 6(b)(4) (2020). Based on the ULJ’s own
factual findings, the circumstances in this ca se were that Moss gathered his things and
began walking toward the timeclock immediately after the production supervisor began to
utter a racial slur while yelling at him. The ULJ’s analysis entirely failed to consider this
egregious conduct by the production supervisor. In such a situation, it is not reasonable to
expect an employee to remain and accept further verbal abuse or to work the rest of his or
her shift. Cf. Nichols v. Reliant Eng’g & Mfg., Inc., 720 N.W.2d 590, 592-93, 597 (Minn.
App. 2006) (concluding that relator quit her job with good reason, and was therefore
entitled to unemployment benefits, where a coworker called her names, swore at her, and
threatened her). Moreover, th e ULJ did not provi de any legal support for the ULJ’s
determination that Moss’s conduct of walkin g toward the timeclock , in light of the
circumstances, constituted employment misconduct. The ULJ’s analysis was conclusory
and legally erroneous. Because Moss’s conduct was reasonable under the circumstances,
his decision to walk toward the timeclock and leave work without permission was not
employment misconduct.
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Accordingly, Moss’s discharge was not based on any actions by Moss that constitute
employment misconduct. We therefore conclude that the ULJ erred by determining that
Moss is not entitled to unemployment benefits.
Reversed.