Husen A. Guffe, 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This opinion is nonprecedential except as provided by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
A22-1196

Husen A. Guffe,
Relator,

vs.

Wal-Mart Associates, Inc.,
Respondent,

Department of Employment and Economic Development,
Respondent.

Filed June 26, 2023
Affirmed
Bratvold, Judge

Department of Employment and Economic Development
File No. 48750547-3

Husen A. Guffe, Bloomington, Minnesota (pro se relator)

Wal-Mart Associates, Inc., Burnsville, Minnesota (respondent employer)

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

Considered and decided by Bryan, Presiding Judge; Johnson, Judge; and Bratvold,
Judge.
NONPRECEDENTIAL OPINION
BRATVOLD, Judge
Relator worked stocking shelves for seven years before his employer discharged
him. Relator seeks review of an unemployment-law judge’s (ULJ) decision that the
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employer discharged relator for employment misconduct, and therefore, relator was not
eligible for unemployment benefits. Relator argues that (1) the ULJ’s factual findings were
clearly erroneous, (2) the ULJ should have obtained and considered video evidence
discussed during the hearing, and (3) the interpreter provided inadequate translation
services. Because the record evidence supports the ULJ’s factual findings and relator raises
the second and third issues for the first time on appeal, we affirm.
FACTS
The following summarizes the evidence presented at the hearing before the ULJ.
Relator Husen A. Guffe worked for respondent Wal-Mart Associates Inc. since 2014 as a
packing-team associate in Burnsville. Wal-Mart discharged Guffe on April 13, 2022.
Guffe applied for unemployment benefits, and respondent Minnesota Department
of Employment and Economic Development (DEED) at first determined that Guffe was
eligible. Wal-Mart appealed DEED’s eligibility determination, arguing that Guffe was
discharged for employment misconduct because he threatened a team leader , which
violated the employer’s policy prohibiting any form of violence or threats of violence.
The ULJ conducted a telephone hearing on June 29, 2022 . Guffe was
self-represented, his primary language is Somali, and he was provided with interpreter
services for the hearing. Guffe testified on his own behalf and did not call other witnesses.
Wal-Mart appeared through A.M., whose job title was “coach,” and called no other
witnesses. Wal-Mart introduced five documents into evidence —the initial eligibility
determination, several questionnaires Guffe filled out, and an employment-discharge
packet that included a copy of Wal-Mart’s workplace-violence policy.
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A.M. testified that Guffe was terminated for employment misconduct after
threatening a team leader in “a violent manner.” A.M. testified that on April 12, 2022, two
team leaders, J.S. and R.G., met for a coaching session with Guffe to address Guffe’s job
performance. Guffe a nd J.S. conversed in the Somali language, which R.G. does not
understand. At the end of the conversation, Guffe threatened J.S., who told R.G. in English
that Guffe threatened to stab him with a knife “in the throat.” A.M. testified that Wal-Mart
investigated by speaking with J.S. and viewing video footage from the office where the
coaching session occurred. The recording, which has no audio, showed Guffe gesture with
his hands. A.M. did not see the video recording. A.M. was not at the store on the day of
the incident, and he learned what happened from another coach.
Guffe testified that he met with J.S. and spoke in the Somali language about a
mistake on his timecard. Guffe asked for a correction, and J.S. refused. Guffe
acknowledged that he may have gestured while they talked but denied that he threatened
J.S. Guffe added that during his seven years of employment, he had no conflicts with J.S.
or other Wal-Mart employees. Guffe argued that Wal-Mart could not prove any threat
occurred because J.S. no longer worked there, R.G. did not understand the Somali
language, and the video had no audio. Guffe stated that Wal-Mart never interviewed him
about the incident and did not give him a reason for his discharge.
The ULJ then called R.G. as a witness and placed R.G. under oath. R.G. is employed
at Wal-Mart as a team leader and testified that he was present for the conversation between
Guffe and J.S. about Guffe’s attendance. R.G. confirmed that the conversation was in the
Somali language and that he does not understand Somali. R.G. testified that, during the
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conversation with J.S., Guffe got upset and raised his voice. Guffe “started getting louder
and he started getting animated with his hands.” At the end of the exchange, Guffe “put his
fingers to his throat, and he made a comment to [J.S.] and he stood up.” Guffe pointed to
his own throat and told R.G. and J.S. to “get out of here.” J.S. then told R.G. that Guffe
had threatened him. R.G. tried to calm Guffe down and even “gave Mr. Guffe an
opportunity to go home and relax, to calm down, but he chose not to.” R.G. was familiar
with Guffe because he often gave him tasks when they worked together. R.G. always spoke
English when he gave Guffe assignments, and Guffe complied with the instructions.
The ULJ issued a written decision and determined that Wal-Mart discharged Guffe
“because he made a threat of physical violence against another employee.” The ULJ found
Guffe “not credible” and found R.G. “more credible.” The ULJ determined “[i]t is more
likely than not Guffe threatened [J.S. ] with stabbing [J.S. ] in the throat.” Applying the
definition of “employment misconduct” from Minn. Stat. § 268.095, subd. 6(a) (2022), the
ULJ determined that Guffe was discharged under this statutory provision because “[t]hreats
of physical violence made in the workplace are highly disturbing and disruptive and
inappropriate, for obvious reasons,” and “Wal-Mart had the right to reasonably expect that
Guffe not threaten to stab his team lead in the throat during a conversation involving some
work performance issues.” The ULJ concluded that Guffe was ineligible for unemployment
benefits under Minn. Stat. § 268.095 (2022).
Guffe requested reconsideration of the ULJ’s ineligibility determination. On
August 19, 2022, the ULJ issued an order affirming his prior decision after determining
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that Guffe “makes no new argument and offers no new information or evidence” and that
the prior decision was “factually and legally correct.” Guffe sought certiorari review.
DECISION
Guffe argues that the ULJ erred by determining that Guffe was discharged for
employment misconduct. “In unemployment benefit cases, the appellate court is to review
the ULJ’s factual findings 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.” Stagg v. Vintage Place Inc., 796 N.W.2d 312, 315 (Minn. 2011) (quotation
omitted). “Whether an employee engaged in conduct that disqualifies the employee from
unemployment benefits is a mixed question of fact and law.” Schmidgall v. FilmTec Corp.,
644 N.W.2d 801, 804 (Minn. 2002). An appellate court will not disturb the ULJ’s factual
findings when evidence substantially sustains them. Minn. Stat. § 268.105, subd. 7(d)
(2022). “Determining whether a particular act constitutes disqualifying misconduct is a
question of law that we review de novo.” Stagg, 796 N.W.2d at 315.
An applicant is ineligible for unemployment benefits if they are discharged for
employment misconduct, defined as “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.” Minn. Stat. § 268.095, subd s. 4(1),
6(a). “As a general rule, refusing to abide by an employer’s reasonable policies and requests
amounts to disqualifying misconduct.” Schmidgall, 644 N.W.2d at 804.
Guffe first argues that the ULJ erred by finding that R.G.’s testimony was credible
and that it was “more likely than not” that Guffe threatened to stab J.S. in the throat.
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Specifically, Guffe contends that R.G. could not “give clear context of the argument
without understanding the Somali language.”
We are n ot convinced. There were three participants in the conversation, two of
whom testified before the ULJ. The ULJ’s factual findings turned on credibility
determinations, and a fact -finder is “not bound by witness testimony, even if
uncontradicted.” In re Civ. Commitment of Kenney, 963 N.W.2d 214, 224 (Minn. 2021).
“A factfinder is not required to accept even uncontradicted testimony if improbable or if
surrounding facts and circumstances afford reasonable grounds for doubting its
credibility.” Id. (quotation omitted). When witness credibility significantly affects the
outcome of the decision, the ULJ must give a reason for crediting one witness’s testimony
over another. Minn. Stat. § 268.105, subd. 1a(a) (2022). An appellate court generally defers
to a ULJ’s credibility determinations. Peterson v. Nw. Airlines Inc., 753 N.W.2d 771, 774
(Minn. App. 2008), rev. denied (Minn. Oct. 1, 2008).
The ULJ determined that “Guffe was not credible denying he made a threat of
physical violence.” The ULJ found that R.G. “was much more credible. [R.G.] was not
originally called as a witness but when he was, he gave spontaneous testimony consistent
with Wal-Mart[’s]” witness. The ULJ considered that R.G. did not understand the Somali
language but still found him credible. The ULJ explained that R.G.
had worked with Guffe and had given him work direction in
the past in English, and so, was familiar with Guffe’s manner.
[R.G.] saw Guffe’s gesture in which Guffe put a finger to
Guffe’s own throat when he made an angry expression at
[J.S.] . . . [and] could tell that Guffe was quite angry.

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Guffe argues that R.G. “was very good friends with [J.S.] and they both held the
same job position.” Guffe also argues that R.G. did not bring up the hand gesture until the
ULJ inquired, “Did anything else happen?” DEED acknowledges that Guffe’s description
of R.G.’s testimony is accurate but responds that the ULJ’s credibility determinations are
supported by the record because A.M. and R.G. testified to the same relevant facts and
R.G. was called “without prior notice.”
Guffe’s argument essentially asks this court to reweigh the evidence and the
credibility of the witnesses. We decline to do so. An appellate court “cannot reweigh the
evidence to determine where the preponderance lies.” Abbey v. Cont. Programming
Specialists, Inc., 377 N.W.2d 28, 31 (Minn. App. 1985), rev. denied (Minn. Jan. 23, 1986).
We view the evidence in the light most favor able to the decision and defer to the ULJ’s
credibility determinations. Skarhus v. Davanni’s Inc., 721 N.W.2d 340, 344 (Minn. App.
2006).
Guffe also argues that we should reject the ULJ’s findings because the evidence
offered against him was “out of chara cter and untrue. ” Guffe also claims that J.S. was
influenced by his desire to keep his job. We are not persuaded. The ULJ allowed Guffe to
question those testifying against him and to tell his side of the story. The ULJ called R.G.
as a witness without notice to either side. R.G.’s testimony was spontaneous and consistent
with the version of events presented by A.M. Because the ULJ gave reasons for the
credibility determinations and the record evidence supports the ULJ’s factual finding that
Guffe threatened J.S., we reject Guffe’s claim that the evidence was “untrue.”
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In his brief to this court, Guffe raises two other issues that were not raised during
the unemployment proceedings: (1) whether the ULJ erred when he failed to obtain and
consider the video recording to which A.M. referred in his testimony and (2) whether the
Somali interpreter provided inadequate translations and affected the ULJ’s ability to
understand Guffe’s “articulation about the case.” We decline to address either issue for
three reasons.
First, Guffe failed to raise these issues during the unemployment hearing or in his
request for reconsideration. An appellate court generally will not consider issues that were
not presented and considered in the prior proceedings. See Thiele v. Stich, 425 N.W.2d 580,
582 (Minn. 1988) (stating that reviewing courts generally will consider only issues
presented and considered below and that parties may not obtain review by raising a
different theory on appeal); Peterson v. Ne. Bank-Minneapolis, 805 N.W.2d 878, 883
(Minn. App. 2011) (applying Thiele to an unemployment case). Because both issues were
not presented to the ULJ, we decline to consider them.
Second, Guffe fails to cite legal authority that supports his argument that the ULJ
was required to obtain the Wal -Mart video .1 Assertions of error not supported by any
citation to authorities are waived and will not be considered on appeal unless any
prejudicial error is obvious. State by Humphrey v. Mod. Recycling, Inc., 558 N.W.2d 770,

1 We note that the ULJ has a duty to assist the parties during proceedings. See Minn. R.
3310.2921 (2021) (“The unemployment law judge must assist all parties in the presentation
of evidence.”). Here, the ULJ informed the parties at the outset of the hearing that “[b]oth
parties have the right to ask that the hearing be rescheduled so that documents or witnesses
can be subpoenaed.” Neither party asked to reschedule or continue the hearing for any
reason, such as obtaining the video recording.
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772 (Minn. App. 1997) (quoting Schoepke v. Alexander Smith & Sons Carpet Co.,
187 N.W.2d 133, 135 (Minn. 1971)); Yusuf v. Masterson Pers., Inc., 880 N.W.2d 600, 605
(Minn. App. 2016) (applying Modern Recycling to an unemployment case). Thus, we also
decline to consider the video-recording argument because Guffe inadequately briefed the
issue.2
Third, our review of the hearing transcript does not support Guffe’s claim that the
interpreter services were inadequate. Guffe’s argument is vague, alleging “grammatical
errors” generally. While grammatical errors are reflected in the transcript, nothing suggests
the translation was inaccurate. More importantly, the ULJ understood Guffe’s testimony.
Following Guffe’s testimony, the ULJ stated that “Guffe denies making any type of threat”
to J.S. As a result, even if we assume that Guffe is correct and grammatical errors occurred
during interpretation, these errors did not prejudice Guffe’s substantial rights. See Lamah
v. Doherty Emp. Grp., Inc., 737 N.W.2d 595, 603 (Minn. App. 2007) (concluding relator’s
substantial rights were not prejudiced where communication problems were immaterial and
did not lead to erroneous fact findings).

2 Even if we were to consider the merits of the video-recording argument, we would reject
it because Guffe does not argue—and the record does not establish—that he was prejudiced
by the absence of the video recording. Guffe and R.G. offered direct and conflicting
testimony about what was said, although both testified that Guffe made gestures. The video
recording did not include audio and therefore would have been cumulative of the other
testimony about Guffe’s gestures. See Ywswf v. Teleplan Wireless Servs., Inc., 726 N.W.2d
525, 530 (Minn. App. 2007) (holding relator was not entitled to relief where ULJ’s failure
to admit a document was harmless error).
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Thus, the ULJ did not err when it determined that Wal -Mart discharged Guffe for
employment misconduct.
Affirmed.