Kevin R. Ballman, 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This opinion is nonprecedential except as provided by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
A21-1153

Kevin R. Ballman,
Relator,

vs.

Minnesota Department of Agriculture,
Respondent,

Department of Employment and Economic Development,
Respondent.

Filed May 31, 2022
Affirmed
Smith, John, Judge*

Department of Employment and Economic Development
File No. 44265876-3

Kevin Ballman, Red Wing, Minnesota (self-represented relator)

Minnesota Department of Agriculture (respondent employer)

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

Considered and decided by Slieter, Pr esiding Judge; Johnson, Judge; and Smith,
John, Judge.

* Retired judge of the Minnesota Court of Ap peals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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NONPRECEDENTIAL OPINION
SMITH, JOHN, Judge
We affirm the determinatio n of an unemployment-law ju dge (ULJ) that relator,
Kevin R. Ballman, was inelig ible for unemployment benef its because the ULJ made
sufficient findings supported by substantial evidence that Ballman committed employment
misconduct.
FACTS
Ballman started at the Minnesota Departme nt of Agriculture (the Department) on
May 1, 2000. Ballman worked as an agricultural advisor. In June 2017, Ballman received
a letter of expectations from a supervisor st ating, “You will maintain positive, respectful
and professional working relationships and co mmunications (electronic, telephonic & in
person) with all co-workers, supervisors, ma nagers and others in the workplace.” On
July 7, 2018, Ballman’s supe rvisor, Denise Thiede, plac ed Ballman on a performance
improvement plan (PIP) as “an attempt to bring to [his] attention concerns about [his] work
performance and behavior.” The PIP focused on adaptability and “clear and effective
communication.”
On July 9, 2018, Ballman received a negative performance review from Thiede
which evaluated Ballman as “m inimally successful” and st ated Ballman would benefit
from “improv[ing] his ability to communi cate” and “accepting direction from his
supervisor.” On March 13, 2019, Ballman was suspended for one day following his private
use of a state vehicle.
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On Friday, August 9, 2019, Thiede sent Ballman a high-importance email
instructing Ballman to assist in a seed inspection the next week and requesting that Ballman
reply to the email. Thiede also texted this information to Ballman. Ballman testified that
he was on vacation on August 9, 2019. On Monday, August 12, Ballman left messages
with colleagues saying he could not help with the assigned seed inspections, and that he
didn’t understand why Thiede failed to inform his colleagues of his vacation. Ballman did
not contact Thiede. On August 15, Thiede em ailed Ballman stating his “lack of response
[was] unacceptable.”
On October 4, 2019, Ballman received a five-day suspen sion for private use of a
state vehicle, communication that was “not meeting expectations,” and “continued poor
workplace performance and behavior.” Ballman received another PIP in December 2019,
which was again focused on improving communication and adaptability.
At staff meetings on January 22-23, 20 20, Ballman reportedly turned his chair to
face away from the presenter, noisily crushed cans, arrived late, and left early. These
reports came from three different meeting attendees who each reported different inattentive
behavior from Ballman.
In February 2020, Ballman was suspended with pay while an investigation into his
conduct took place. On December 1, 2020, the Department discharged Ballman citing
inappropriate use of his state vehicle and computer, disrespectful communication and
behavior, and deficient perform ance based on Ballman’s failu re to meet deadlines and
follow directions.
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Respondent Department of Employment and Economic De velopment (DEED)
denied Ballman unemployment benefits because the Department discharged him for
employment misconduct. Ballman appealed the ineligibility decision, and an evidentiary
hearing was conducted. On Ma y 19, 2021, a ULJ determined Ballman was ineligible for
unemployment benefits because of Ballman’s “behavior in the January 2020 meetings, and
his general pattern of communication with ma nagement, Thiede in particular.” The ULJ
also determined that it was “unnecessary to reach conclusions” on the other listed reasons
for Ballman’s discharge. Ballman requested r econsideration. Ballman disputed the ULJ’s
conclusion that his behavior was disrespe ctful and challenged the underlying factual
findings. On review, the ULJ stated that “n one of the information in his request for
reconsideration . . . would change the outcome” and “the employer’s information was more
reliable” than that presented by Ballman. The ULJ affirmed the previous decision.
DECISION
Ballman challenges the ULJ’s factual fi ndings and credibility determinations
supporting the conclusion that he was inelig ible for unemployment benefits. This court
may affirm the ULJ’s decision, remand for fu rther proceedings, or reverse the decision if
the findings or conclusions are “unsupported by substantial evidence in view of the hearing
record.” Minn. Stat § 268.105, subd. 7(d) (2020). Ballman argues this court should reverse
the ULJ’s decision because s ubstantial evidence does not support the ULJ’s credibility
determinations and factual findings. We disagree.
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I. Substantial evidence supports the cred ibility determinations and factual
findings of the ULJ.
This court views a “ULJ’s factual finding s in the light most favorable to the
decision, giving deference to the credibility determinations made by the ULJ. In doing so,
we will not disturb the ULJ’s factual findings when the evidence s ubstantially sustains
them.” Skarhus v. Davanni’s Inc. , 721 N.W.2d 340, 344 (Min n. App. 2006) (citations
omitted). “Substantial evidence is ‘such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.’” Posey v. Securitas Sec. Servs. USA, Inc. ,
879 N.W.2d 662, 665 (Minn. App. 2016) (citing Minneapolis Van & Warehouse Co. v. St.
Paul Terminal Warehouse Co., 180 N.W.2d 175, 178 (Minn. 1970)). Thus, we defer to the
factual findings and credibility determinations of the ULJ so long as they are supported by
substantial evidence.
Ballman challenges the factual findings of the ULJ. While Ballm an does not cite
legal authority, his brief is best construed as a challenge that no substantial evidence
supports the ULJ’s findings about the August 2019 inspections and the January 2020 staff
meetings. Ballman contends that “the ev idence does not contai n any accusation of
disrespect” and the “evidence documents [h e] follow[ed] through with Ms. Thiede’s
request,” about the August 2019 inspections. Ballman also argues the evidence shows he
“fully participated” in the January 2020 staff meetings.
Because the ULJ found “the employer’s information was more reliable,” this panel
must examine whether the record contains substantial evidence to support the ULJ’s factual
findings and credibility determination. See Skarhus, 721 N.W.2d at 344. Ballman argues
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the August 9, 2019, email communication from Thiede did not contain the word “priority”
and on August 12 Ballman completed “directed weekly activity.” The ULJ found Thiede
“made it clear that [Ballman] wa s to prioritize” the seed in spection. The record supports
the ULJ’s finding. As addressed in Ballman’s brief, Thiede emailed the staff asking them
to “support this program” and “notify [Thied e] if [] not able to meet [] requests for
inspection.” Thiede’s email directly to Ba llman also stated the inspection “need[ed]
[Ballman’s] assistance” and was sent with high importance. These two pieces of record
evidence constitute substantial evidence supporting the district court’s finding that Thiede
“made it clear” that Ballman needed to prioritize the seed inspection.
Ballman also contends that “the evid ence does not support any accusation of
disrespect” in the communica tion between Ballman and Th iede. The ULJ found that
Ballman’s tone of communication with Thiede was “disrespectful.” The record supports
this finding. Ballman’s poor performance re views in July 2018 an d December 2019 and
the PIPs in June 2017 and July 2018 focus on the issue of poor workplace communication.
Additionally, Ballman’s susp ension in March 2019 st ates Ballman’s “workplace
communications are not mee ting expectations and have been viewed by others as
inappropriate.” This evid ence supports the ULJ’s findi ng that Ballman’s workplace
communication was disrespectful.
Lastly, Ballman contests that his behavior at the January 2020 staff meetings was
inappropriate stating that he “fully participated in the meeting.” Ballman also theorizes that
“two of the three complaints ” about his behavior during th ese meetings were made by
management who had “sufficient ability to have dealt with any perceived issues.” The ULJ
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relied on the three complaints in determining that “Ballman manifested his disregard for
the meetings and the presenters.” Ballman ar gues “it is imperative that the names of the
complainants be disclosed to analyze the credibility of those co mplaints.” The ULJ
specifically considered the credibility of the th ree complaints and found them credible in
part because they were “different vantage points at different times.” Ballman’s belief that
the complaints were not in good faith was also raised during the hearing and addressed in
the ULJ’s reconsideration. But the concer ns were dismissed because the employer
presented “more reliable” evid ence. The three complaints ar e substantial evidence of
Ballman’s behavior. Because substantial evidence supports the ULJ’s findings, we defer to
the ULJ’s credibility determinations that the employer’s information to be “more reliable.”
II. The ULJ did not err in concluding Ballman’s actions were employment
misconduct.
To the extent that Ballman challenges if the ULJ’s factual findings demonstrate
employment misconduct, the issue of whethe r factual findings demo nstrate employment
misconduct is an issue of law, reviewed de novo. Stagg v. Vintage Place Inc., 796 N.W.2d
312, 315 (Minn. 2011). Appellate courts re view whether the applicant engaged in the
conduct “in the light most favorable to the decision and should not disturb those findings
as long as there is evidence in the record that reasonably tends to sustain them.” Id.
(quotation omitted). But appellate courts re view whether a particular act constitutes
disqualifying misconduct de novo. Id. Employment misconduct is “any intentional,
negligent, or indifferent conduct, on the job or off the job, that is a serious violation of the
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standards of behavior the employer has the right to reasonably expect of the employee.”
Minn. Stat. § 268.095 subd. 6(a) (2020).
As described above, “viewed in the light most favorable to the decision,” Ballman
engaged in disrespectful communications and disrespectful behavior during the
January 2020 staff meetings. Violation of an employer’s policy is employment misconduct.
See Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002) (“As a general rule,
refusing to abide by an employer’s reas onable policies and requests amounts to
disqualifying misconduct.”). Ballman received a June 2017 email expressing the policies
and expectations regarding communications, which stated “[y]ou will maintain positive,
respectful and professional working relati onships and communications (electronic,
telephonic & in person) with all co-workers, supervisors, managers and others in the
workplace.” Ballman’s PIPs also articulated the expected improv ement in workplace
communications. Lastly, Thiede’s email abou t seed inspections requested that she be
notified if an employee could not meet a request for an insp ection. Ballman violated the
policy surrounding workplace communication by both failing to communicate with Thiede
about the seed inspections and communicating in a disrespectful manner, as evidenced by
his poor performance reviews and suspensions.
Ballman’s behavior in the January 2020 staf f meetings also violated the policy of
respectful in-person communication and workplace relationships. “Even a single incident
can be misconduct if it represents a suffi cient enough disregard for the employer’s
expectations.” Blau v. Masters Rest. Assocs., Inc. , 345 N.W.2d 791, 794 (Minn. App.
1984). Ballman’s disruption of the staff mee ting, as detailed in the three complaints,
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establishes a sufficient disregard for the expe ctation of maintaining “positive, respectful,
and professional working relationships.”
Given that the ULJ’s credibility determination and findings of fact are supported by
substantial evidence and that Ballman’s acti ons violated the Department’s policies and
constituted employment miscon duct, the ULJ did not err by determining Ballman was
ineligible for unemployment benefits based on his employment misconduct.
Affirmed.