                          This opinion will be unpublished and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
                                     A15-0549


                                   Steven R. Schilling,
                                        Relator,

                                            vs.

                               Site Solutions Professionals,
                                       Respondent,

                 Department of Employment and Economic Development,
                                     Respondent.


                                Filed November 2, 2015
                                       Affirmed
                                   Bjorkman, Judge


                 Department of Employment and Economic Development
                                 File No. 33162717-3

Steven R. Schilling, West St. Paul, Minnesota (pro se relator)

Site Solutions Professionals, Bloomington, Minnesota (respondent)

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

         Considered and decided by Kirk, Presiding Judge; Johnson, Judge; and Bjorkman,

Judge.
                          UNPUBLISHED OPINION

BJORKMAN, Judge

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

is ineligible for benefits because he was discharged for employment misconduct. We

affirm.

                                          FACTS

          Relator Steven R. Schilling worked as a design technician for respondent Site

Solution Professionals from early 2013 until December 12, 2014. Schilling was able to

work a flexible schedule, but was repeatedly advised that he needed to arrive by 9:00 a.m.

Following oral warnings for tardiness, Schilling met with the company president and vice

president on December 12, and received a two-page written warning. The warning lists

four infractions—absenteeism, substandard work, tardiness/leaving early, and violation

of company policies (sleeping at work)—and includes an improvement plan.                The

officers asked Schilling to acknowledge receipt of the warning by signing the report.

Schilling refused because he disagreed with the allegation that he had been late for work,

and asked about the consequences of a refusal. The response was, “You’re done then.”

Schilling replied, “OK, I’m done then,” and left the meeting. Schilling did not return to

work.

          Schilling subsequently applied for unemployment benefits.            Respondent

Minnesota Department of Employment and Economic Development (DEED) determined

that he is ineligible for benefits because he quit his employment. Schilling appealed.

After an evidentiary hearing, the ULJ found that Schilling did not quit, but is not eligible


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for unemployment benefits because he was discharged for employment misconduct.

Schilling sought reconsideration, arguing that refusing to sign a document he did not

agree with should not be considered misconduct. The ULJ affirmed, noting that the

employer’s request was reasonable and did not impose an unreasonable burden on

Schilling. Schilling appeals by writ of certiorari.

                                      DECISION

       An employee who is discharged for employment misconduct is ineligible for

unemployment benefits. Minn. Stat. § 268.095, subd. 4(1) (2014). Whether an employee

committed employment misconduct is a mixed question of law and fact. Stagg v. Vintage

Place Inc., 796 N.W.2d 312, 315 (Minn. 2011). Whether an employee committed a

particular act is an issue of fact, which we review for substantial evidence, but whether

the act constitutes employment misconduct is a legal question, which we review de novo.

Id.

       Misconduct is “any intentional, negligent, or indifferent conduct . . . 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.” Minn. Stat. § 268.095, subd. 6(a) (2014). “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). What is

reasonable depends on the circumstances of the case. Sandstrom v. Douglas Mach.

Corp., 372 N.W.2d 89, 91 (Minn. App. 1985). But “conduct an average reasonable

employee would have engaged in under the circumstances” and “good faith errors in


                                              3
judgment if judgment was required” are not employment misconduct.             Minn. Stat.

§ 268.095, subd. 6(b)(4), (6) (2014).

         Schilling does not challenge the ULJ’s factual determinations but argues that his

refusal to sign the written warning is not employment misconduct because it was

unreasonable for his employer to require him to sign a document with which he did not

agree.    We are not persuaded.     The written warning clearly states that signing the

document does not constitute an admission to its allegations: “By signing this form, you

confirm that you understand the information in this warning. You also confirm that you

and your manager have discussed the warning and a plan for improvement. Signing this

form does not necessarily indicate that you agree with this warning.” Rather, the written

warning memorializes the company’s concerns and Schilling’s acknowledgment of what

he must do to improve his performance.           On this record, we conclude that it was

reasonable to require Schilling to acknowledge receipt of the warning in writing. And his

refusal to comply with this reasonable request constitutes employment misconduct.

         Schilling cites to the unpublished case Schneeweiss v. Schwan’s Consumer

Brands, Inc., to support his argument that refusing to sign the report should not be

considered employment misconduct. No. A11-1709, 2012 WL 2505815 (Minn. App.

July 2, 2012).      His reliance is unavailing for two reasons.     First, the opinion is

unpublished and therefore not precedential. Minn. Stat. § 480A.08, subd. 3(c) (2014).

Second, Schneeweiss does not support his argument. This court affirmed the ULJ’s

determination that Schneeweiss’s refusal to sign the warning report as an




                                             4
acknowledgement of receipt constituted employment misconduct. Schneeweiss, 2012

WL 2505815, at *3.

       Finally, Schilling argues that allowing him to receive unemployment benefits

“would be the right and fair decision.” But the law does not permit equitable exceptions

to the statutory requirements for obtaining unemployment benefits.          Minn. Stat.

§ 268.069, subd. 3 (2014). Schilling committed employment misconduct and is therefore

ineligible for benefits.

       Affirmed.




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