                         This opinion will be unpublished and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
                                    A14-1075

                                  Michael McCalister,
                                       Relator,

                                           vs.

                      The Fresh Group Ltd. - Maglio & Company,
                                    Respondent,

                Department of Employment and Economic Development,
                                    Respondent.

                                Filed February 23, 2015
                                       Affirmed
                                    Chutich, Judge

                Department of Employment and Economic Development
                                File No. 32407048-4

Michael McCalister, St. Paul, Minnesota (pro se relator)

The Fresh Group Ltd. - Maglio & Company, Gurnee, Illinois (respondent employer)

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


      Considered and decided by Rodenberg, Presiding Judge; Chutich, Judge; and

Toussaint, Judge.




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                           UNPUBLISHED OPINION

CHUTICH, Judge

       Relator Michael McCalister challenges the denial of his claim for unemployment

benefits, arguing that the unemployment-law judge erred in determining that he was

discharged for employment misconduct. Because sufficient evidence exists to support

the decision, we affirm.

                                        FACTS

       In March 2014, the Fresh Group Ltd. – Maglio & Company, a produce wholesaler,

discharged relator Michael McCalister from his position as line leader. While McCalister

was working on filling orders that day, a supervisor asked him for a count of a tomato

order. Rather than answer the question, McCalister instead yelled that he needed water

and began walking off the production floor. As he neared the door, the operations

manager told McCalister to tell the supervisor the count before getting water. McCalister

did not respond and walked out.

       After McCalister returned, the operations manager found him talking on his cell

phone, which is not permitted on the production floor. The operations manager told

McCalister not to talk on the phone and to get back to work. Shortly thereafter, the

operations manager again saw McCalister talking on his cell phone. Later that day, the

operations manager discharged McCalister.

       McCalister applied for unemployment benefits, and the Minnesota Department of

Employment and Economic Development (the department) determined that he was

ineligible for benefits because his insubordination and actions were employment


                                            2
misconduct. McCalister appealed this decision, and an evidentiary hearing was held in

May 2014 via telephone conference.

       The unemployment-law judge affirmed the denial of benefits.                        The

unemployment-law judge also found that McCalister ignored the instructions of his

supervisors, violated the policy against cell phone use on the production floor, and then

repeated that same violation less than an hour after being admonished for that behavior.

The unemployment-law judge found that this disregard for the rules demonstrated a

substantial lack of concern for McCalister’s employment, meeting the definition of

misconduct and making him ineligible for unemployment benefits.

       McCalister requested reconsideration, arguing that extenuating circumstances

existed because he was talking on the phone to his wife about dinner plans and to his

brother about their sick father. The unemployment-law judge affirmed the decision. This

appeal by a writ of certiorari follows.

                                      DECISION

       On review, this court may affirm the unemployment-law judge’s decision, remand

it for further proceedings, or reverse or modify the decision if the substantial rights of the

relator have been prejudiced because the findings, inferences, conclusion, or decision is

“(1) in violation of constitutional provisions; (2) in excess of the statutory authority or

jurisdiction of the department; (3) made upon unlawful procedure; (4) affected by other

error of law; (5) unsupported by substantial evidence in view of the entire record as

submitted; or (6) arbitrary or capricious.” Minn. Stat. § 268.105, subd. 7(d) (2014). This

chapter is remedial in nature and we apply it in favor of awarding unemployment


                                              3
benefits, narrowly construing any provision that would preclude an applicant from

receiving them. Minn. Stat. § 268.031, subd. 2 (2014).

       An employee who is discharged for misconduct is ineligible for unemployment

benefits. Minn. Stat. § 268.095, subd. 4(1) (2014). Employment misconduct is defined

as “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.” Id.,

subd. 6(a) (2014). An employee’s refusal to abide by an employer’s reasonable policies

and requests amounts to disqualifying misconduct. Schmidgall v. FilmTec Corp., 644

N.W.2d 801, 806 (Minn. 2002). “This is particularly true when there are multiple

violations of the same rule involving warnings or progressive discipline.” Id. at 806-07.

       Employment misconduct presents a mixed question of fact and law: whether an

employee committed a particular act is a question of fact, and whether that act arises to

employment misconduct is a question of law. Skarhus v. Davanni’s Inc., 721 N.W.2d

340, 344 (Minn. App. 2006). An unemployment-law judge’s findings of fact are viewed

in the light most favorable to the decision, and those findings will not be disturbed so

long as substantial evidence supports them. Id.; see also Minn. Stat. § 268.105, subd.

7(d)(5) (stating that this court may reverse or modify an unemployment-law judge’s

decision if the facts are unsupported by substantial evidence). An unemployment-law

judge’s determination that an applicant is ineligible for employment benefits is subject to

de novo review. Stassen v. Lone Mountain Truck Leasing, LLC, 814 N.W.2d 25, 30

(Minn. App. 2012).


                                            4
      McCalister first argues that his actions were not misconduct because he was

permitted to have his phone with him, and designated areas existed where cell phones

could be used. The operations manager, however, testified that cell phones were not

permitted on the floor.    He also testified that the company had no policy about a

designated cell phone area, and that employees mistakenly thought that “they could walk

away from other employees so they wouldn’t see them on the phones so that they could

use the phones.”

      The unemployment-law judge found that McCalister violated the company’s

policy by having his phone on the production line and that the operations manager

reminded McCalister of this policy after his first warning. Although McCalister testified

that the operations manager said that it was “okay” that he used his phone the first time,

the operations manager clarified that he also told McCalister that he was not to use his

phone again. Because substantial evidence exists to support this finding, we will not

disturb it. See Skarhus, 721 N.W.2d at 344.

      We also agree with the department that McCalister’s actions were misconduct. An

employee’s “refus[al] to abide by an employer’s reasonable policies and requests

amounts to disqualifying misconduct.” Schmidgall, 644 N.W.2d at 804. Here, even

though specifically asked, McCalister would not tell either his supervisor or the

operations manager what the count of tomatoes was. He also used his cell phone despite

the Fresh Group’s policy that phones are not to be used on the production floor. These

actions demonstrate a refusal to abide by the Fresh Group’s reasonable policies and

requests. After he was told not to use his phone, McCalister violated this policy again


                                              5
roughly thirty minutes later.    Because knowingly violating a reasonable policy is

misconduct, particularly when there are multiple violations of the same rule after a

warning, the unemployment-law judge did not err in determining that McCalister’s

actions represented misconduct. See id. at 806.

      McCalister also claims that he was discharged because the operations manager

chose to take out his bad day on McCalister. No evidence exists to support this claim,

and substantial evidence supports the unemployment-law judge’s findings. We therefore

will not disturb those findings. See Skarhus, 721 N.W.2d at 344.

      Affirmed.




                                            6
