This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2012).
STATE OF MINNESOTA
IN COURT OF APPEALS
A14-0850
David K. Beckwith,
Relator,
vs.
Duluth Lawn & Sport, Inc.,
Respondent,
Department of Employment and Economic Development,
Respondent.
Filed December 8, 2014
Affirmed
Toussaint, Judge*
Department of Employment and Economic Development
File No. 32137393-3
David Beckwith, Duluth, Minnesota (pro se relator)
Duluth Lawn & Sport, Inc., Duluth, Minnesota (respondent)
Lee B. Nelson, Minnesota Department of Employment and Economic Development,
St. Paul, Minnesota (for respondent department)
Considered and decided by Connolly, Presiding Judge; Bjorkman, Judge; and
Toussaint, Judge.
*
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
UNPUBLISHED OPINION
TOUSSAINT, Judge
Relator challenges the decision by an unemployment law judge (ULJ) that he was
discharged for employment misconduct and is ineligible for unemployment benefits.
Because substantial evidence supports the ULJ’s decision, we affirm.
DECISION
Relator David Beckwith asserts that he is entitled to unemployment benefits
because he was not given warnings by his employer, Duluth Lawn & Sport, that his
behavior was inappropriate, other employees who were not terminated exhibited similar
inappropriate behavior, and the ULJ made factual errors to support her decision. The
Minnesota Department of Employment and Economic Development (DEED) responds,
and we agree, that substantial evidence exists in the record to support the ULJ’s
determination that Beckwith is ineligible for unemployment benefits because he
committed multiple acts of employment misconduct.
Whether Beckwith engaged in conduct that disqualifies him from unemployment
benefits is a mixed question of fact and law. See Schmidgall v. FilmTec Corp., 644
N.W.2d 801, 804 (Minn. 2002). Whether a particular act constitutes employment
misconduct is a question of law, which this court reviews de novo. Scheunemann v.
Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997). But whether Beckwith
committed the particular act is a question of fact. Id. This court reviews the ULJ’s
factual findings “in the light most favorable to the decision” and defers to the ULJ’s
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credibility determinations. Skarhus v. Davanni’s Inc., 721 N.W.2d 340, 344 (Minn. App.
2006).
An employee who is discharged from employment for misconduct is ineligible to
receive unemployment benefits. Minn. Stat. § 268.095, subd. 4(1) (2012). Employment
misconduct means “any intentional, negligent, or indifferent conduct, on the job or off the
job that displays clearly: (1) a serious violation of the standards of behavior the employer
has the right to reasonably expect of the employee; or (2) a substantial lack of concern for
the employment.” 2014 Minn. Laws ch. 239, § 5, at 772 (to be codified at Minn. Stat.
§ 268.095, subd. 6(a) (2014)). As a general rule, an employee’s refusal to abide by an
employer’s reasonable policies and requests amounts to disqualifying misconduct.
Schmidgall, 644 N.W.2d at 804.
Beckwith’s immediate supervisor and the owner of Duluth Lawn & Sport testified
at an evidentiary hearing that Beckwith was terminated based on his cumulative conduct
of using his cell phone at work after being told to stop, not punching out for lunch after
being told to punch out for lunch, throwing a shovel at a customer’s snowmobile, leaving
work early and missing a day of work without prior approval, and making derogatory
remarks in front of a customer. The ULJ found that Beckwith “had multiple violations of
policy on cell phone use, punching out for lunch, and being absent or leaving early
without permission, and he had incidents of recklessness and a final incident of swearing
in front of customers.” The ULJ explained that “Beckwith acted with intentional,
negligent, or indifferent conduct that displayed clearly a serious violation of the standards
of behavior that Duluth Lawn & Sport had a right to reasonably expect of him.” With
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regard to conflicting testimony from Beckwith, his supervisor, and the Duluth Lawn &
Sport owner, the ULJ found that the supervisor and owner were “more credible” than
Beckwith because they gave a “believable” and “plausible” explanation of the events that
“partly corroborate each other.”
Beckwith first contends that the ULJ erred by finding him ineligible for benefits
because (1) he was only terminated for the last incident involving the derogatory remark
in front of a customer, (2) he should have been issued a warning prior to being
terminated, and (3) other employees also exhibited similar behavior without being
terminated. Minnesota law explains that an employee’s conduct may be considered as a
whole in determining whether the employee was discharged because of employment
misconduct, and the record is clear that Beckwith was not terminated solely for making
the derogatory remark in front of a customer. See Gilkeson v. Indus. Parts & Serv., Inc.,
383 N.W.2d 448, 450–52 (Minn. App. 1986) (concluding that employee was discharged
for employment misconduct because he engaged in a pattern of failing to follow policies
and procedures and ignoring directions and requests” when he was repeatedly tardy,
failed to carry his pager, spoke to the manager in a profane manner, argued with the
president, and refused to obey directives); Drellack v. Inter-Cnty. Cmty. Council, Inc.,
366 N.W.2d 671, 674 (Minn. App. 1985). In addition, an employer is not required to
give a warning before discharging an employee for employment misconduct, see Auger v.
Gillette Co., 303 N.W.2d 255, 257 (Minn. 1981), and similar conduct by co-workers “is
not a valid defense to a claim of misconduct.” Dean v. Allied Aviation Fueling Co., 381
N.W.2d 80, 83 (Minn. App. 1986). For these reasons, Beckwith’s initial arguments fail.
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Beckwith next asserts that the ULJ made her determination of ineligibility based
on incorrect facts because the ULJ erred in her findings on whether he received warnings
about his behavior, whether he left work early on December 16, 2013, and whether he
showed up to work on January 3, 2014. This court reviews the ULJ’s factual findings “in
the light most favorable to the decision” and defers to the ULJ’s credibility
determinations. Skarhus, 721 N.W.2d at 344. Beckwith’s supervisor testified at the
hearing that Beckwith received warnings and reprimands about cell phone use, punching
out for lunch, leaving work without permission, and throwing the shovel at a customer’s
snowmobile. The supervisor also explained that Beckwith also missed work on January
3, 2014, without getting approval to go to a second job. An exhibit the ULJ admitted into
evidence shows that Beckwith left work early on another day to go to his second job, and
Beckwith’s supervisor testified at the hearing that the events described in the exhibit
happened on “approximately December 15, 16.” Because the record substantially
supports the ULJ’s factual determinations, we affirm the ULJ’s determination that
Beckwith is ineligible for unemployment benefits.
Affirmed.
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