                         This opinion will be unpublished and
                         may not be cited except as provided by
                         Minn. Stat. § 480A.08, subd. 3 (2014).

                              STATE OF MINNESOTA
                              IN COURT OF APPEALS
                                    A15-0430

                                  Kimberly G. Baker,
                                      Relator,

                                          vs.

                            Minnesota State Supreme Court,
                                     Respondent,

                 Department of Employment and Economic Development,
                                     Respondent

                                Filed January 11, 2016
                                       Affirmed
                                    Worke, Judge

                 Department of Employment and Economic Development
                                 File No. 32658231-3

Kimberly G. Baker, South St. Paul, Minnesota (pro se relator)

Carla J. Heyl, State Court Administrator’s Office, St. Paul, Minnesota (for respondent
Minnesota Supreme Court)

Lee B. Nelson, Department of Employment and Economic Development, St. Paul,
Minnesota (for respondent department)

         Considered and decided by Worke, Presiding Judge; Reilly, Judge; and Reyes,

Judge.
                           UNPUBLISHED OPINION

WORKE, Judge

         Relator challenges the determination of an unemployment-law judge (ULJ) that

she committed employment misconduct by violating her employer’s internet and

electronic communication policy. We affirm.

                                         FACTS

         In December 1985, respondent Minnesota State Supreme Court hired relator

Kimberly G. Baker. Baker, an assistant appellate clerk, helped process documentation

submitted for cases filed in the Minnesota Supreme Court and the Minnesota Court of

Appeals. Baker assisted appellate attorneys and law clerks, checked trial court files, and

helped locate missing documents. Baker’s employee email contained a signature block in

which she identified herself as an assistant clerk of courts for the Minnesota Supreme

Court and the Minnesota Court of Appeals.1

         In 1998, the Minnesota Judicial Branch enacted Policy 317, which governs the use

of internet and technology before, during, and after work hours by Judicial Branch

employees. Under that policy, employees must adhere to the highest ethical standards

when using the internet and other electronic communication tools. Employees can access




1
    Baker’s signature block stated:

Kimberly Baker
Assistant Clerk of Courts
Minnesota Supreme Court
Minnesota Court of Appeals

                                             2
Policy 317 anytime by visiting an employee intranet site, and employees receive email

notifications when policies are updated.

       Appropriate use under Policy 317 includes use that does not interfere with work

activities. Inappropriate use includes, but is not limited to, (1) wagering, betting, selling,

(2) commercial activities, e.g. personal for-profit business activities, (3) uses that are

disruptive or harmful to the reputation or business of the Judicial Branch, and

(4) purposes other than Judicial Branch business, except limited and reasonable personal

use.

       In May 2014, AnnMarie O’Neill, the clerk of appellate courts, became concerned

with Baker’s productivity after noticing a large cart containing unopened mail outside

Baker’s work station. O’Neill found court envelopes that contained receipts from the

United States Postal Service for printing labels at Baker’s work station. O’Neill found

appellate shipping labels that were used for personal business. The ink used to print the

labels was paid for by the court. O’Neill previously observed Baker, on numerous

occasions, using the internet while she was supposed to be working. O’Neill verbally

warned Baker approximately 10 times about her excessive internet use.

       O’Neill asked human resources to monitor Baker’s internet usage.                 Sarah

Kujawski, the human resources manager, and the Information Technology Division (IT)

located Baker’s internet history dating back to January 2013. Kujawski and IT monitored

Baker’s internet usage and confirmed that Baker used the internet during work to access

non-work related websites such as eBay, Amazon, PayPal, Quibids, and a website for the

United States Postal Service.


                                              3
         In June 2014, Baker was discharged for violating Policy 317.           Respondent

Minnesota Department of Employment and Economic Development (DEED) determined

Baker ineligible for unemployment benefits because she was discharged for employment

misconduct. Baker appealed and in August 2014, an evidentiary hearing was held before

a ULJ.

         During the hearing, Baker admitted to visiting numerous websites for personal

use. Baker testified that she was not aware of Policy 317, and that using her employee

email for personal business was not prohibited. Baker claimed that other employees used

eBay, printed from court computers, and used court postage for personal reasons. Baker

did not know if court policies were emailed to employees, but she admitted that the court

administrator “sends out some things.” When asked whether she accessed the employee

intranet site to view policies, Baker responded, “I don’t know if I have or not. I’m sure

that I probably have used it but I don’t know exactly what is on there or why I went to it.”

         In December 2014, a ULJ affirmed Baker’s ineligibility and concluded that Baker

committed employment misconduct.         Baker requested reconsideration, and the ULJ

affirmed the findings of fact and decision. This appeal follows.

                                     DECISION

         This court may affirm, remand, or reverse or modify the ULJ’s decision if Baker’s

substantial rights may have been prejudiced because the findings, inferences, conclusion,

or decision are unsupported by substantial evidence in view of the entire record. Minn.

Stat. § 268.105, subd. 7(d)(5) (Supp. 2015). An employee discharged for employment

misconduct is ineligible for unemployment benefits. Minn. Stat. § 268.095, subd. 4(1)


                                             4
(2014).   “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.” Id., subd. 6(a)(1)–(2) (2014).

      “Whether an employee committed employment misconduct is a mixed question of

fact and law.” Peterson v. Nw. Airlines Inc., 753 N.W.2d 771, 774 (Minn. App. 2008),

review denied (Minn. Oct. 1, 2008). Whether an employee committed a particular act is a

question of fact that this court reviews “in the light most favorable to the [ULJ’s]

decision.” Id. Whether that act constitutes employment misconduct is a question of law,

which this court reviews de novo. Id.

Factual findings and decision

      Baker argues that the ULJ’s factual findings and decision are not supported by

substantial evidence. A ULJ’s factual findings shall not be disturbed when the evidence

substantially supports them. Minn. Stat. § 268.105, subd. 7(d)(5). Substantial evidence

means “such relevant evidence as a reasonable mind might accept as adequate to support

a conclusion.” Carter v. Olmsted Cty. Hous. & Redevelopment Auth., 574 N.W.2d 725,

730 (Minn. App. 1998) (quotation omitted). This standard requires “more than a scintilla

of evidence, ‘some’ evidence, or ‘any’ evidence.” Id.

      The ULJ found that: (1) Baker repeatedly used her employer’s telecommunication

system to engage in selling activity and personal business as far back as October 2013;

and (2) Baker spent a substantial amount of time on personal websites outside of

authorized break times. The evidence substantially supports the ULJ’s findings.


                                            5
       Baker used her employee email to engage in selling activities on multiple

occasions. In November 2013, Baker sent numerous emails and offered to sell a product

to D.T. D.T. accepted Baker’s offer and provided his credit card information after Baker

requested it. In January 2014, Baker exchanged numerous emails with a relative and

instructed her to send a product to L.H. Baker’s relative asked whether she should have

the payment sent to Baker, and Baker responded, “Yes, please.” In March 2014, Baker

agreed to sell D.T. another product. Baker requested D.T.’s credit card information and

D.T. complied.

       In September 2013, eBay informed Baker that they were removing a listing that

she created due to concerns that the listing was of poor quality or inauthentic. The email

from eBay identified Baker by her employee email. In November 2013, Baker used her

employee email to communicate with J.L. regarding registration for a potential business

opportunity. Baker stated, “How would you like me to do my coach purses? They are

totally legitimate, and I sell them for half price.”

       Baker also used her employee email to communicate with K.A., an individual to

whom she sold a speaker on eBay. K.A. experienced problems with the speaker, and

Baker instructed her to not tell the manufacturer that she bought the speaker on eBay

because the manufacturer might not honor its warranty.        In December 2013, Baker

repeatedly used her employee email to interact with D.K. about a potential business

opportunity. Therefore, the evidence substantially supports the ULJ’s factual finding that

Baker engaged in selling activity and personal business.




                                               6
       Baker also spent a substantial amount of time accessing personal websites during

work hours. Baker visited PayPal for personal banking. Baker visited the Amazon

website and received notifications relating to selling items on the website. Baker spent a

substantial amount of time on Quibids, eBay, and USPS. Baker often spent over an hour

on personal websites during work. O’Neill and Kujawski testified that Baker received

numerous warnings about excessive internet use during work. Therefore, the ULJ’s

factual finding that Baker spent a substantial amount of time on personal websites outside

of authorized break times is supported by substantial evidence.

Employment misconduct

       Baker argues that she did not commit employment misconduct. “An employer has

a right to expect that its employees will abide by reasonable instructions and directions.”

Vargas v. Nw. Area Found., 673 N.W.2d 200, 206 (Minn. App. 2004), review

denied (Minn. Mar. 30, 2004).       “[W]hat is reasonable will vary according to the

circumstances of each case.”      Id. (quotation omitted).   A knowing violation of an

employer’s policies is employment misconduct because it demonstrates a willful

disregard of the employer’s interests. Schmidgall v. FilmTec Corp., 644 N.W.2d 801,

806–07 (Minn. 2002).

       Baker spent a considerable amount of time during work on websites for personal

business. Baker engaged in selling activities and gathered credit card information on

multiple occasions while using her employee email. Baker also used her employee email

to instruct K.A. to lie to a speaker manufacturer. Finally, Baker provided eBay and

Amazon with her employee email, resulting in numerous notifications that related to


                                            7
selling activities. Policy 317 specifically prohibits employees from engaging in “selling,”

“personal for-profit business activities,” and personal use that is not “limited and

reasonable.” Therefore, the ULJ’s factual findings support the conclusion that Baker

committed employment misconduct.

       Baker argues that she did not commit employment misconduct because she did not

know of Policy 317. This argument presents a question of credibility. “Credibility

determinations are the exclusive province of the ULJ and will not be disturbed on

appeal.” Skarhus v. Davanni’s Inc., 721 N.W.2d 340, 345 (Minn. App. 2006). The ULJ

found that Baker’s claim was not credible because of inconsistencies in her testimony and

the evidence and because she appeared evasive in response to certain questions. Further,

O’Neill testified that employees may access Policy 317 on the employee intranet site and

that employees receive emails alerting them to policy updates.

       Separate from the ULJ’s credibility determination (to which we defer), Minn. Stat.

§ 268.095, subd. 6(a)(1)–(2), defines “employment misconduct” as “any intentional,

negligent, or indifferent conduct, on the job or off the job that displays clearly . . . a

serious violation of the standards of behavior the employer has the right to reasonably

expect of the employee; or . . . a substantial lack of concern for the employment.”

Misconduct need not be deliberate. See Barstow v. Honeywell, Inc., 396 N.W.2d 714,

716 (Minn. App. 1986) (stating that misconduct need not be deliberate). Thus, Baker’s

argument that she did not commit employment misconduct because she did not know of

Policy 317 is unpersuasive.




                                            8
       Baker also argues that she should have received a written warning about her

internet and email use. We are not persuaded. Prior receipt of a written warning is not

required to conclude that an employee committed employment misconduct. See Auger v.

Gillette Co., 303 N.W.2d 255, 257 (Minn. 1981) (stating that a warning was not essential

to demonstrate that employees acted in willful disregard of employer’s interest).

Moreover, Baker received approximately 10 verbal warnings on her excessive internet

use.

       Baker finally argues that she did not commit misconduct because other employees

used the internet and employee email for personal business.          Again, we are not

persuaded. Baker’s argument does not create a valid defense to a claim of employment

misconduct. See Sivertson v. Sims Sec., Inc., 390 N.W.2d 868, 871 (Minn. App. 1986)

(“Whether or not other employees violated those same rules and were disciplined or

discharged is not relevant here.”), review denied (Minn. Aug. 20, 1986); Dean v. Allied

Aviation Fueling Co., 381 N.W.2d 80, 83 (Minn. App. 1986) (“Violation of an

employer’s rules by other employees is not a valid defense to a claim of misconduct.”).

       Therefore, the ULJ did not err in concluding that Baker is ineligible for

unemployment benefits because she committed employment misconduct.

       Affirmed.




                                            9
