                         This opinion will be unpublished and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
                                    A14-0728

                                    Timothy J. Fish,
                                       Relator,

                                           vs.

                 Young Men’s Christian Association - YMCA Brainerd,
                                    Respondent,

               Department of Employment and Economic Development,
                                   Respondent

                               Filed December 15, 2014
                                      Affirmed
                                    Worke, Judge

                Department of Employment and Economic Development
                                File No. 31970545-3

Timothy J. Fish, Crosby, Minnesota (pro se relator)

Young Men’s Christian Association – YMCA Brainerd, Brainerd, Minnesota (respondent
employer)

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

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

Judge.*



*
 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                         UNPUBLISHED OPINION

WORKE, Judge

          Relator challenges the unemployment-law judge’s (ULJ) decision that he was

discharged for employment misconduct and ineligible for unemployment benefits. We

affirm.

                                     DECISION

          The ULJ determined that relator Timothy J. Fish was discharged from his

employment as an evening custodian at respondent Young Men’s Christian Association –

YMCA Brainerd for employment misconduct and is ineligible for unemployment

benefits. We review a ULJ’s decision to determine whether substantial rights were

prejudiced because the findings, inferences, conclusions, or decision are unsupported by

substantial evidence in view of the record as a whole or affected by an error of law. 2014

Minn. Laws ch. 271, art. 1, § 1, at 1028-29 (to be codified at Minn. Stat. § 268.105, subd.

7(d) (2014)).

          An employee who is discharged for employment misconduct is ineligible for

unemployment benefits.      Minn. Stat. § 268.095, subd. 4(1) (2012).         Employment

misconduct is “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.” 2014 Minn. Laws ch. 239, art. 2, § 4, at 772 (to be codified at Minn. Stat.

§ 268.095, subd. 6(a) (2014)).




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       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

the employee committed a particular act is a fact question, which we review in the light

most favorable to the decision and will affirm if supported by substantial evidence.”

Dourney v. CMAK Corp., 796 N.W.2d 537, 539 (Minn. App. 2011). But whether that

particular act constitutes disqualifying misconduct is a question of law that we review de

novo. Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).

       The ULJ found that on December 1, 2013, Fish punched in for work and then went

into an empty room, removed his glasses and shoes, and lay on a couch because he was

not feeling well. Another employee found Fish in this position approximately 30 minutes

later. Fish neither explained to this employee that he was ill, nor sought permission to lie

down from a supervisor. While Fish concedes that he committed this act, he argues that

it was not misconduct.

       Fish first argues that the ULJ should not have considered an incident from 2008 in

evaluating whether this current incident was misconduct. The YMCA presented to the

ULJ counseling forms documenting Fish’s work performance. One from 2008 indicated

that Fish was reading a newspaper when he had approximately 40 minutes remaining in

his shift. The form provided: “Since previous warnings have been given, if there are any

additional complaints [the YMCA] will be forced to terminate your employment. Final

warning.” Fish claims that the incident from 2008 was an isolated, unrepeated incident,

and was too stale to be relevant. Contrary to Fish’s assertion, the incident from 2013 was




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the second time that Fish failed to work while punched in. And, despite the first incident

occurring in 2008, Fish received warnings in 2009 and 2010.

      A form from 2009 indicated that: “[Fish] has failed to respond to notes left for him

requesting improved and corrected cleaning in [the lobby and women’s locker room] and

has not demonstrated a consistent cleaning work ethic.” The form served as “warning

that further violation or continued unsatisfactory performance may result in immediate

termination.” And one from 2010 indicated: “Unsatisfactory performance [failure to

adequately clean the women’s locker room] has also been discussed with [Fish] and

documented in previous evaluations, meetings and trainings all signed by [Fish].” The

form served “as a FINAL documented warning that further violation or continued

unsatisfactory performance will result in immediate termination.”

      The incident from 2008 was not an isolated event, but served as the starting point

in tracking Fish’s progressively deficient work performance. See Drellack v. Inter-Cnty.

Cmty. Council, Inc., 366 N.W.2d 671, 674 (Minn. App. 1985) (stating that employee’s

behavior “as a whole” may be considered in determining the propriety of the discharge

and qualification for unemployment benefits); Flahave v. Lang Meat Packing, 343

N.W.2d 683, 686-87 (Minn. App. 1984) (adopting a last-straw doctrine in concluding that

repeated infractions of employer’s rules demonstrate substantial disregard of employer’s

interest and the duties and obligations owed to the employer).

      Fish also argues that his work performance was merely unsatisfactory. Simple

unsatisfactory conduct is not employment misconduct. 2014 Minn. Laws ch. 239, art. 2,

§ 5, at 772 (to be codified at Minn. Stat. § 268.095, subd. 6(b)(3) (2014)). But “[a]n


                                            4
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); see Evenson v. Omnetic’s, 344 N.W.2d 881, 883

(Minn. App. 1984) (stating that an employer has the right to reasonably expect an

employee to work scheduled hours). “[A]n employee’s decision to violate knowingly a

reasonable policy of the employer is misconduct” and “[t]his is particularly true when

there are multiple violations of the same rule involving warnings or progressive

discipline.” Schmidgall, 644 N.W.2d at 806. Despite being warned after the incident in

2008 that he was expected to work when he was punched in, Fish failed to follow this

reasonable directive.

       Fish further argues that his conduct was reasonable under the circumstances and

had no negative impact on the YMCA. In Auger v. Gillette Co., the supreme court

determined that two night janitors were not entitled to unemployment benefits after they

were terminated for sleeping on the job. 303 N.W.2d 255, 256-57 (Minn. 1981). In

Auger, the employees were found sleeping on cardboard, with pillows, a blanket, and an

alarm clock. Id. at 257. Relevant in the court’s analysis was the fact that the employees

worked at night with little supervision and accountability.     Id. Also relevant were

“complaints of other employees indicat[ing] morale was in danger of being adversely

affected.” Id.

       Similar to Auger, Fish was an evening custodian with little supervision and

accountability. Also similar is that Fish was comfortably settled with his shoes and

glasses removed.        While Fish claims that he was not feeling well, it was quite


                                            5
coincidental that he was well enough to work at the moment the other employee entered

the room. See Krantz v. Larco Div., 363 N.W.2d 833, 834 (Minn. App. 1985) (stating

that deliberate work avoidance may support a determination of employment misconduct).

Additionally, Fish’s conduct negatively impacted the YMCA because he challenged his

employer’s ability to trust that he would perform his job duties.          See Skarhus v.

Davanni’s Inc., 721 N.W.2d 340, 344 (Minn. App. 2006) (concluding that cashier’s

single theft, in the context of her job responsibilities, had a significant adverse impact

because the employer could no longer trust the employee).           The YMCA was also

negatively impacted because, like Auger, an employee complained about Fish’s conduct.

         Fish lastly argues that he used his best discretion and committed an error in good

faith.    Good-faith errors in judgment if judgment is required are not employment

misconduct. 2014 Minn. Laws ch. 239, art. 2, § 5, at 773 (to be codified at Minn. Stat.

§ 268.095, subd. 6(b)(6) (2014)). When a directive is clear, no judgment is required.

Potter v. N. Empire Pizza, Inc., 805 N.W.2d 872, 877 (Minn. App. 2011), review denied

(Minn. Nov. 15, 2011). Judgment was not required. Fish punched in to work, not to lie

down. He was not in a position to judge whether he should work or lie down. Even if

judgment was required, Fish’s conduct was unreasonable. If Fish were not feeling well

when he punched in, it would have been reasonable for him to either (1) punch out, rest,

and punch in again when he was feeling well, or (2) call his supervisor and seek

permission to lie down. The ULJ appropriately determined that Fish engaged in

employment misconduct that resulted in him being ineligible for unemployment benefits.

         Affirmed.


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