                        This opinion will be unpublished and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
                                   A13-1951

                                  Andrew R. Patson,
                                      Relator,

                                          vs.

                                Skaff Apartments, Inc.,
                                     Respondent,

               Department of Employment and Economic Development,
                                   Respondent.

                                  Filed July 21, 2014
                                       Affirmed
                                   Schellhas, Judge

               Department of Employment and Economic Development
                               File No. 31331026-3

Andrew Patson, Detroit Lakes, Minnesota (pro se relator)

Skaff Apartments, Inc., Moorhead, Minnesota (respondent)

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

      Considered and decided by Schellhas, Presiding Judge; Peterson, Judge; and

Connolly, Judge.
                        UNPUBLISHED OPINION

SCHELLHAS, Judge

      Relator challenges an unemployment-law judge’s determination that he is

ineligible for unemployment benefits because he misrepresented his criminal record

during his employment interview. We affirm.

                                        FACTS

      Respondent Skaff Apartments Inc. employed relator Andrew Patson as a

maintenance technician. During his employment interview, Skaff’s president asked

Patson whether he had a criminal record and Patson said no, that he was “totally clean.”

After less than one week of employment, during Patson’s 90-day probationary period,

Skaff learned through a background check on Patson that he had three criminal

convictions—a Minnesota conviction for driving while under the influence (DWI) and

two North Dakota misdemeanor convictions. Skaff discharged Patson for lying about his

criminal history. Patson sought unemployment benefits, and respondent Minnesota

Department of Employment and Economic Development determined that he was

ineligible because he was discharged for employment misconduct. Patson appealed the

determination.

      An unemployment-law judge (ULJ) conducted an evidentiary hearing and heard

testimony from Skaff’s president, its office manager, and Patson. Skaff’s office manager

testified that she ran the background check on Patson, and the DWI conviction was a

misdemeanor. The president testified that he interviewed Patson on or shortly before

October 4, 2012, and hired him based in part on his assurance that he had a clean criminal


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record. Skaff discharged Patson after learning from a background check that Patson had

an October 2010 DWI conviction, as well as two other misdemeanor convictions; Skaff’s

insurance company would not cover the company if one of its employees operated a

company vehicle and had a DWI conviction from the past five years. Skaff’s president

testified that losing the insurance coverage would have effectively “shut [Skaff] down.”

The president testified that he discharged Patson for lying.

       Patson admitted that he had the DWI conviction but stated, “I didn’t really

consider my D[W]I to be, you know, criminal” and the conviction “didn’t even cross my

mind.” He also testified that the president never asked him generally, during the

interview, whether he had a criminal record but only specifically whether he had been

convicted of assault or theft. But, on cross-examination, Patson admitted that the

president’s reference to assault or theft was “more as an examples instead of direct

questions.”

       On rebuttal, the president testified,

              I made it very clear and what I said is, do you have any
              criminal history, and he said no. And I said, anything. And he
              said, no. And then I said, well, anything, theft, . . . or drugs,
              or whatever. . . . [I said] I’m going to run this [background
              check] but, you know, and nothing can show up. And he said,
              it won’t, it’s clean. I said, I’m trusting you . . . .

       The ULJ found that Patson “intentionally provided false information about his

criminal history in order to be hired” and “had three prior criminal convictions, including

a . . . DWI . . . conviction in 2010.” The ULJ also found that Skaff’s insurance company

would not insure Patson to operate the company’s vehicles and equipment due to his



                                               3
DWI conviction. The ULJ concluded that the intentional misrepresentation seriously

violated Skaff’s reasonable expectations because it “betrayed Skaff Apartments’s trust,”

and the ULJ decided that Patson was ineligible for unemployment benefits because he

committed employment misconduct. Patson requested reconsideration, arguing that the

ULJ erred by not listening to what Patson had to say and finding that he intentionally

lied. The ULJ affirmed his decision, explaining that “[the president]’s testimony was

more credible because it was very specific and seemed more plausible under the

circumstances.”

       This certiorari appeal follows.

                                     DECISION

       Appellate courts “will narrowly construe the disqualification provisions of the

[unemployment-benefits] statute in light of their remedial nature, as well as the policy

that unemployment compensation is paid only to those persons unemployed through no

fault of their own.” Stagg v. Vintage Place Inc., 796 N.W.2d 312, 315 (Minn. 2011)

(quotations omitted); see also Minn. Stat. §§ 268.03, subd. 1 (no fault of their own), .031,

subd. 2 (remedial nature) (2012). “Whether an employee engaged in conduct that

disqualifies the employee from unemployment benefits is a mixed question of fact and

law.” Stagg, 796 N.W.2d at 315 (quotation omitted). Appellate courts review de novo as

a question of law “whether a particular act constitutes disqualifying misconduct,” id., but

“[w]hether the employee committed a particular act is an issue of fact,” Cunningham v.

Wal–Mart Assocs., 809 N.W.2d 231, 235 (Minn. App. 2011). We “review the ULJ’s

factual findings in the light most favorable to the decision,” Stagg, 796 N.W.2d at 315


                                             4
(quotation omitted), and “give deference to the ULJ’s credibility determinations,” Van de

Werken v. Bell & Howell, LLC, 834 N.W.2d 220, 221 (Minn. App. 2013).

       Patson challenges the ULJ’s determination that he is ineligible for unemployment

benefits based on the ULJ’s finding that he lied during his interview. An employee is

ineligible for unemployment benefits if the employee is discharged for employment

misconduct. 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.” Minn. Stat. § 268.095, subd. 6(a) (2012). “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). “If the

conduct for which the applicant was discharged involved only a single incident, that is an

important fact that must be considered in deciding whether the conduct rises to the level

of employment misconduct . . . .” Minn. Stat. § 268.095, subd. 6(d) (2012). “[A] material

misrepresentation during the hiring process . . . fit[s] within the statutory definition of

employment misconduct.” Santillana v. Cent. Minn. Council on Aging, 791 N.W.2d 303,

307 (Minn. App. 2010).

       Patson’s statement that he had no prior convictions—that his record was clean—

was an undisputed misrepresentation. The misrepresentation was material because it

caused Skaff’s president to distrust Patson and Skaff’s employment of Patson jeopardized

Skaff’s insurance coverage and therefore its viability. Patson appears to focus his


                                            5
challenge on the ULJ’s finding that he “intentionally provided false information about his

criminal history,” apparently arguing that his misrepresentation was inadvertent and the

result of the interview questions being insufficiently clear. (Emphasis added.) We are not

persuaded. Employment misconduct includes “negligent . . . conduct,” although it does

not include “conduct that was a consequence of the applicant’s . . . inadvertence.” Minn.

Stat. § 268.095, subd. 6(a), (b)(2) (2012). “Inadvertent conduct, even if negligent, is not

employment misconduct.” Dourney v. CMAK Corp., 796 N.W.2d 537, 538, 540 (Minn.

App. 2011) (“A person is negligent when she fails to do something that a reasonable

person would do. . . . Inadvertence is . . . an oversight or a slip.” (quotation omitted)).

       In light of our deference to ULJ findings, Stagg, 796 N.W.2d at 315, including

credibility findings, Van de Werken, 834 N.W.2d at 221, we conclude that substantial

evidence supports the ULJ’s determination that Patson committed employment

misconduct because his misrepresentation was either intentional or negligent and was not

inadvertent. The ULJ did not err by deciding that Patson is ineligible for unemployment

benefits.

       Affirmed.




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