Noo Vang, 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This opinion is nonprecedential except as provided by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
A22-1253

Noo Vang,
Relator,

vs.

Mo’s Tropical Market,
Respondent,

Department of Employment and Economic Development,
Respondent.

Filed September 5, 2023
Affirmed
Wheelock, Judge

Department of Employment and Economic Development
File No. 48617698-3

Noo Vang, St. Paul, Minnesota (pro se relator)

Mo’s Tropical Market, North St. Paul, Minnesota (respondent employer)

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

Considered and decided by Wheelock, Presiding Judge; Cochran, Judge; and Frisch,
Judge.
NONPRECEDENTIAL OPINION
WHEELOCK, Judge
Relator appeals from the determination of an unemployment-law judge that he was
ineligible for unemployment benefits because he was discharged for employment
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misconduct. We affirm the determination of ineligibility because substantial evidence
supports the unemployment-law judge’s factual findings and the relator’s conduct
constituted employment misconduct under the law.
FACTS
Relator Noo Vang worked as a warehouse manager for respondent Mo’s Tropical
Market. Mo Chang, the owner of Mo’s Tropical, discharged Vang on February 20, 2022.
Vang applied for unemployment benefits through respondent Minnesota Department of
Employment and Economic Development (DEED). In March 2022, DEED issued an
initial determination that Vang was eligible for unemployment benefits because the
conduct for which he was discharged was not employment misconduct. Mo’s Tropical
appealed the determination.
In May 2022, an unemployment-law judge (ULJ) held an evidentiary hearing on the
matter. Vang and Chang both participated in the hearing. X.H., a Mo’s Tropical employee,
participated as a witness on behalf of Vang.
Chang testified that she discharged Vang for a series of behavioral incidents that
occurred between August 2021 and February 2022. Vang’s conduct included making
inappropriate comments to female customers, engaging in a verbal altercation with a
warehouse employee, bringing a female customer into an employees-only produce cooler,
confronting and threatening another employee for speaking to Chang about Vang’s
behavior, and leaving work early on a busy holiday when he was scheduled to work until
close. Chang spoke to Vang about his behavior several times.
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Chang also described the final behavioral incident immediately preceding Vang’s
discharge. Chang testified that while she was assisting customers and other employees
were closing and cleaning the store on February 19, 2022, Vang turned the lights off in the
store. Chang turned the lights back on and asked Vang not to turn the lights off while she
was still assisting customers. Instead, Vang turned the lights off again and left the store,
refusing to turn them back on when Chang asked him to do so. The following day, Chang
notified Vang that he was discharged.
Vang admitted to several of the incidents that Chang described in her testimony and
denied others. He conceded that he turned the lights off in the store while Chang was
helping customers on February 19, 2022. He testified that he did this to “protest” what he
believed to be unfair working conditions. He testified that the store was supposed to close
at 6:00 p.m., but Chang continued to allow customers into the store and helped them until
7:15 p.m. He testified that Chang allowed the teenaged employees to go home at 7:00 p.m.
that night, but she required the older employees to stay late and continue to clean without
prior notice that they would be working late.
X.H. testified that he was present in the store on February 19 and witnessed Vang
turn the lights off in the store. He testified that Vang turned the lights off again after Chang
asked Vang to keep the lights on.
The ULJ determined that Vang was discharged due to employment misconduct and
was not eligible to receive unemployment benefits, resulting in an overpayment of
unemployment benefits in the amount of $4,232.
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Vang requested reconsideration of the ULJ’s decision, and the ULJ affirmed the
decision. Vang filed a petition for a writ of certiorari.
DECISION
On appeal, Vang argues that Chang’s testimony “went beyond what really
happened” during the February 19 incident that preceded his termination. He requests that
this court “disregard all personal attacks outside of this specific incident” because Chang
lacked evidentiary support for the assertions she made at the hearing. However, we are not
persuaded that the ULJ erred in crediting Chang’s testimony, finding facts, or determining
that Vang was discharged for employment misconduct.
An applicant is ineligible to receive unemployment benefits if the applicant was
discharged for employment misconduct. Minn. Stat. § 268.095, subd. 4(1) (2022).
Employment misconduct is 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.” Id., subd. 6(a) (2022).
“Whether an employee committed employment misconduct is a mixed question of
fact and law. Whether the employee committed a particular act is a question of fact.”
Skarhus v. Davanni’s Inc., 721 N.W.2d 340, 344 (Minn. App. 2006) (citation omitted).
This court reviews a ULJ’s findings of fact “in the light most favorable to the
decision . . . giving deference to the credibility determinations made by the ULJ.” Id.
(citation omitted). This court will not disturb the findings of fact “when the evidence
substantially sustains them.” Id.; see Minn. Stat. § 268.105, subd. 7(d)(5) (2022) (stating
that this court “may reverse or modify the [ULJ’s] decision if the substantial rights of the
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petitioner may have been prejudiced because the findings, inferences, conclusion, or
decision are . . . unsupported by substantial evidence in view of the hearing record as
submitted”). We review de novo “whether the act committed by the employee constitutes
employment misconduct.” Skarhus, 721 N.W.2d at 344.
I. The evidence substantially supports the ULJ’s findings of fact.
Vang appears to challenge the evidence supporting the ULJ’s factual findings. He
argues that Chang’s claims lacked support, and he states that he supplied a witness to
support his claims, whereas Chang did not.
The ULJ’s decision included the following findings of fact that describe the acts
Vang committed that led to his discharge:
• In August 2021, “Chang spoke to Vang about some
performance concerns and his inappropriate comments
towards female customers.” Also in August, “Vang confronted
a warehouse worker in front of other employees and both Vang
and the warehouse worker were swearing at each other.”

• “In September 2021, Vang brought a customer to the reefer,
which is a large cooler and for employees only. Vang knew
the reefer was intended for only employees of Mo’s Tropical
Market. Vang also confronted . . . the facility manager about
his reason for submitting a resignation notice. Vang was upset
with [the facility manager] because [he] told Chang that part of
the reason he was quitting was due to Vang’s management
style.”

• “Vang received a verbal warning from Chang about his
behavior towards [the facility manager].”

• “On January 1, 2022, Vang left work early without permission.
Chang told Vang that she wanted him to work until the store
closed, but Vang left work several hours before closing.”

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• “On February 19, 2022, Chang asked Vang to stay and help
staff clean up the store. Vang refused to stay and help. Vang
turned off the lights in the store while staff were cleaning, and
Chang was assisting customers. Chang told Vang to turn the
lights back on, but he refused and walked out.”

• “On February 20, 2022, Vang was discharged due to
insubordination.”

The decision stated that these findings of fact were based on the documents and testimony
in the record, and “[t]o the extent the parties did not agree” in their testimony, the ULJ
“relied on Chang’s testimony because it was detailed, consistent, and provided a more
likely sequence of events.”
When viewing the evidence in the light most favorable to the decision and giving
deference to the ULJ’s credibility determination regarding Chang’s testimony, see Skarhus,
721 N.W.2d at 344, it is clear that substantial evidence supports the ULJ’s factual findings
that Vang committed each of the acts that led to his discharge.
Throughout her testimony, Chang described Vang’s conduct as “unacceptable,”
“hostile,” “inappropriate,” “unprofessional, ” “embarrassing,” and “disrespectful.” She
testified in detail about each of the incidents leading to Vang’s discharge and submitted
written documentation describing the incidents as well. Chang and Vang both testified that
Chang talked to Vang about his conduct at least twice before he was discharged; thus, Vang
was aware that his conduct was inappropriate and could lead to his discharge.
Furthermore, Vang admitted to several of the incidents in his testimony, including
the two August incidents in which he made inappropriate comments to female customers
as well as fought with and swore at a warehouse employee, the September incident in which
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he brought a customer into the reefer, the January incident in which he left before closing,
and the February incident in which he turned the lights off and walked out. Vang’s witness,
X.H., confirmed that Vang turned the store lights off after being asked to leave them on
during the February incident.
Therefore, we conclude that the record substantially supports the ULJ’s findings of
fact regarding the acts that led to Vang’s discharge.
II. The ULJ did not err by determining that Vang’s conduct constituted
employment misconduct.

Our de novo review confirms that the district court did not err in concluding that
Vang committed employment misconduct. See Skarhus, 721 N.W.2d at 344. The ULJ
found that “Vang’s conduct was a serious violation of the standards of behavior that Mo’s
Tropical Market had a right to reasonably expect from its employees,” and therefore,
Vang’s conduct constituted employment misconduct.
The supreme court has held that “refusing to abide by an employer’s reasonable
policies and requests amounts to disqualifying [employment] misconduct.” Schmidgall v.
FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002). We have similarly concluded that a
“pattern of failing to follow policies and procedures and ignoring [an employer’s]
directions and requests” constitutes employment misconduct. Gilkeson v. Indus. Parts &
Serv., Inc., 383 N.W.2d 448, 452 (Minn. App. 1986).
We have also concluded that an employee’s rude behavior toward customers, fellow
employees, and supervisors constitutes employment misconduct. Montgomery v. F & M
Marquette Nat’l Bank, 384 N.W.2d 602, 605 (Minn. App. 1986), rev. denied (Minn.
8
June 13, 1986); see also Pitzel v. Packaged Furniture & Carpet, 362 N.W.2d 357, 357-58
(Minn. App. 1985) (concluding that “aggressive and offensive” behavior with customers
is employment misconduct).
Here, the law supports the ULJ’s determination that Vang’s conduct constituted
employment misconduct. The incidents, spanning August 2021 to February 2022,
demonstrate that Vang refused “to abide by [his] employer’s reasonable policies and
requests.” Schmidgall, 644 N.W.2d at 804 . Vang’s inappropriate comments to female
customers and his hostility toward fellow employees is further evidence of employment
misconduct. See Montgomery, 384 N.W.2d at 605. The repetition of his conduct over
several months of his employment shows a “pattern of failing to follow policies and
procedures and ignoring [his employer’s] directions and requests.” Gilkeson, 383 N.W.2d
at 452.
Even if we were to disregard the earlier incidents and assume that Vang was
discharged solely for the February 19 incident, our conclusion would remain the same. The
supreme court has held that “[a] single incident can constitute misconduct when an
employee deliberately chooses a course of conduct that is adverse to the employer.”
Schmidgall, 644 N.W.2d at 806.
The February 19 incident involved Vang’s deliberate choice to turn the lights off in
the store— while several customers and employees were still inside —and walk out on his
shift. This conduct was adverse to Vang’s employer because it showed disrespect to the
customers and employees and disrupted the customer-service, cleaning, and closing tasks
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that the employees were performing. Mo’s Tropical Market had a right to reasonably
expect that Vang would not engage in this type of behavior.
In sum, we conclude that the ULJ did not err as a matter of law in its determination
that Vang was discharged for employment misconduct.
Affirmed.