                        This opinion will be unpublished and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                        UNPUBLISHED OPINION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.


                                           4
      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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