Justin D. Shackelford, 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This opinion is nonprecedential except as provided by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
A22-1080

Justin D. Shackelford,
Relator,

vs.

University of Minnesota,
Respondent,

Department of Employment and Economic Development,
Respondent.

Filed March 13, 2023
Affirmed
Slieter, Judge

Department of Employment and Economic Development
File No. 48656828-3

Justin Shackelford, Crystal, Minnesota (pro se relator)

University of Minnesota, c/o Corporate Cost Control, Inc., Londonderry, New Hampshire
(respondent employer)

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

Considered and decided by Connolly, Presiding Judge; Larkin, Judge; and Slieter,
Judge.
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NONPRECEDENTIAL OPINION
SLIETER, Judge
Relator challenges the order of an unemployment-law judge (ULJ) determining that
he is ineligible to receive unemployment benefits. Because the ULJ did not err in
determining that relator’s actions were employment misconduct, we affirm.
FACTS
On March 28, 2022, relator Justin D. Shackelford was discharged from employment
as a veterinary technician assistant by respondent University of Minnesota. The events
leading to his discharge began approximately two years earlier.
In late 2020, the university began requiring its employees to wear eye coverings as
part of its COVID-19 mitigation measures. Near the same time, Shackelford’s supervisor
created a “workflow document,” which included Shackelford’s input, to guide his daily
tasks and address concerns about his productivity. In December 2020, Shackelford began
filing complaints related to the eye-coverings policy with state and federal agencies.
In December 2021, Shackelford received a negative performance evaluation from
his supervisor, who cited concerns about Shackelford’s inability to stay on-task and use of
computers for non -work activities. Shackelford petitioned for a harassment restraining
order (HRO) against his supervisor for alleged “retaliatory behaviors and harassment.”
On February 4, 2022, the university gave Shackelford a “letter of expectations”
explaining that, although Shackelford had the right to pursue “lawsuits” against the
university, he could not do so “on work time.” The letter also explained that he must
minimize use of university equipment to pursue the “lawsuits,” must not allow pursuit of
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the “lawsuits” to interfere with “assigned work tasks,” and must treat the “lawsuits” as
“personal endeavors” and “request[] the appropriate time off . . . through the normal
departmental time off request process.”
On February 15, Shackelford requested time off to participate in a remote mediation
session on February 23, related to his HRO petition. Despite not having received a
response to his time-off request, Shackelford participated in the three-hour mediation on
February 23. He “punched out” for the first 92 minutes then “punched in” and attempted
to complete some of his work duties with one hand while holding his phone with his other
hand for the remainder of the mediation.
On March 28, the university discharged Shackelford for violating the expectations
set forth in the February 4 letter by taking time off on February 23 without the proper
approval and participating in the mediation “for an extended period of time while punched
in [which] interfered with work activities.”
Shackelford applied for unemployment benefits and was denied based on an
administrative determination that he was discharged for employment misconduct. He
appealed this determination of ineligibility, and a ULJ conducted a hearing. Shackelford
submitted evidence related to his employment and legal actions to the ULJ. At the hearing,
Shackelford and his supervisor testified. The ULJ concluded that Shackelford had been
discharged for employment misconduct and affirmed this conclusion when Shackelford
requested reconsideration. Shackelford takes this certiorari appeal.
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DECISION
An unemployment-benefits applicant is ineligible for benefits if “the applicant was
discharged because of employment misconduct.” Minn. Stat. § 268.095, subd. 4(1) (2022).
“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) (2022). “As a general rule,
refusing to abide by an employer’s reasonable policies and requests amounts to
disqualifying misconduct.” Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn.
2002).
“Whether an employee engaged in conduct that disqualifies the employee from
unemployment benefits is a mixed question of fact and law.” Stagg v. Vintage Place Inc.,
796 N.W.2d 312, 315 (Minn. 2011) (quotation omitted). We review whether a particular
act constitutes disqualifying misconduct de novo. Id. We review 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). “Credibility determinations are the exclusive province of
the ULJ and will not be disturbed on appeal.” Bangtson v. Allina Med. Grp., 766 N.W.2d
328, 332 (Minn. App. 2009) (quoting Skarhus v. Davanni’s Inc., 721 N.W.2d 340, 344
(Minn. App. 2006)); see also Wichmann v. Travalia & U.S. Directives, Inc., 729 N.W.2d
23, 29 (Minn. App. 2007) (remanding “[b]ecause the ULJ did not make findings addressing
credibility and the ULJ’s finding of employment misconduct relies on a credibility
assessment”).
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The ULJ determined “that Shackelford was discharged because of ‘persistent off
task behavior’ and violating the February 4 letter of expectations on February 23.” This
determination was based on testimony from Shackelford’s supervisor, whom the ULJ
found credible.
Shackelford argues that his actions do not constitute employment misconduct, ar e
not a serious violation of the university’s reasonable expectations, and fit within at least
one exception to employment misconduct. We are not persuaded.
Employment Misconduct
The statutory “definition of ‘employment misconduct’ is ‘exclusive and no other
definition applies.’” Wilson v. Mortg. Res. Ctr., Inc., 888 N.W.2d 452, 458 (Minn. 2016)
(quoting Minn. Stat. § 268.095, subd. 6(e) (2016)). “Because the statutory definition is
exclusive, a prior common law standard that is incompatible with the statutory language is
inapplicable.” Id. The statutory definition of employment misconduct encompasses “any
intentional, negligent, or indifferent conduct.” Minn. Stat. § 268.095, subd. 6(a).
Shackelford relies on the definition of employment misconduct from In re Tilseth’s
Claim, which limited employment misconduct to conduct evincing “wilful or wanton
disregard of an employer’s interests . . . carelessness or negligence to such degree or
recurrence as to manifest equal culpability, wrongful intent or evil design,
or . . . intentional and substantial disregard of the employer’s interests or the employee’s
duties and obligations.” 204 N.W.2d 644, 646-47 (Minn. 1973) (quoting Boynton Cab.
Co. v. Neubeck, 296 N.W.2d 636, 640 (Wis. 1941)). The common-law definition considers
the employee’s intent, which the exclusive statutory definition does not and, thus, the
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common-law definition in Tilseth “no longer applies in light of statutory amendments.”
Hanson v. Crestliner Inc., 772 N.W.2d 539, 543 (Minn. App. 2009); see also Wilson, 888
N.W.2d at 458
The ULJ relied on the statutory definition of employment misconduct and, thus, did
not err.
Serious Violation
Shackelford argues that his conduct was not a serious violation of the university’s
reasonable expectations because the university failed to follow its own disciplinary
procedures.
The statutory definition of employment misconduct focuses on “the employee’s
conduct, not that of the employer,” so considering the actions of the employer “fails to
comport with the exclusive definition of employment misconduct set forth in Minn. Stat.
§ 268.095, subd. 6(e).” Stagg, 796 N.W.2d at 316 (quotation omitted). Shackelford relies
on Hoemberg v. Watco Publishers, Inc., 343 N.W.2d 676, 679 (Minn. App. 1984),
overruled by Stagg, 796 N.W.2d at 316, to support his argument that employer misconduct
affects whether an employee engaged in misconduct to preclude unemployment benefits,
but Hoemberg was explicitly overruled by Stagg and is no longer good law.
Therefore, the ULJ did not err by declining to consider the university’s conduct.
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Statutory Exceptions
Shackelford argues that, even if his actions constituted employment misconduct,
they fit within five of the ten statutory exceptions to employment misconduct. See Minn.
Stat. § 268.095, subd. 6(b)(2) (inefficiency or inadvertence), (3) (unsatisfactory conduct),
(4) (conduct an average reasonable employee would have engaged in under the
circumstances), (6) ( good faith errors in judgment), (10) (conduct that was the result of
harassment or stalking) (2022).
These arguments were not presented to the ULJ, and we generally do not consider
issues not first presented to a fact-finder. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn.
1988). But even if we were to consider each, we would not be persuaded.
The ULJ found Shackelford’s supervisor credible and determined, based on that
credible testimony, that Shackelford was discharged for failing to abide by the university’s
reasonable request that he not conduct his lawsuits on work time. Bangtson, 766 N.W.2d
at 332. Shackelford’s actions were a direct violation of that reasonable request, not
inefficiency, inadvertence, or simply unsatisfactory conduct, and an average reasonable
employee would have taken steps to follow up on his time-off request when he did not
receive a response. Meeting this clearly communicated expectation did not require an
exercise in judgment. Potter v. N. Empire Pizza, Inc., 805 N.W.2d 872, 877 (Minn. App.
2011) (noting an employee need not exercise judgment in deciding whether to comply with
a known policy but is “to simply follow the policy without having any discretion to choose
otherwise”). The definition of harassment or stalking exempts conduct performed “to carry
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out a specific lawful commercial purpose or employment duty.” Minn. Stat. §§ 609.749,
subd. 7, 268.095, subds. 6(b)(10), 1(9)(iii) (2022).
Finally, Shackelford argues that there is a single-incident exception, which the ULJ
should have applied. If the conduct alleged to support discharge was a single incident, the
ULJ is required to consider that fact in determining if the conduct rose to the level of
employment misconduct, but this is a fact the ULJ must consider, not an exception. Minn.
Stat. § 268.095, subd. 6(d) (2022); Potter, 805 N.W.2d at 875. The ULJ inquired about
whether there were multiple instances of misconduct, and, thus, properly considered
whether it was a single incident.1
Affirmed.

1 Shackelford also argues that the ULJ misapplied the burden of proof by crediting his
supervisor’s testimony over his “hard evidence” and not construing the evidence in favor
of awarding benefits. The ULJ found Shackelford’s supervisor cr edible, and we will not
overturn that determination. Bangtson, 766 N.W.2d at 332. And, as discussed, the record
read in the light most favorable to the ULJ’s decision reasonably tends to support the
decision. Wilson, 888 N.W.2d at 460.