                          This opinion will be unpublished and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
                                     A14-1269


                                      Dan Delk, III,
                                        Relator,

                                           vs.

                            Pan-O-Gold Baking Co. (Corp.),
                                    Respondent,

                  Department of Employment and Economic Development,
                                      Respondent.


                                  Filed April 20, 2015
                                       Affirmed
                                   Halbrooks, Judge

                  Department of Employment and Economic Development
                                  File No. 32251008-3

Thomas H. Boyd, Matthew C. Robinson, Winthrop & Weinstine, P.A., Minneapolis,
Minnesota (for relator)

Pan-O-Gold Baking Co. (Corp.), St. Cloud, Minnesota (respondent)

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

      Considered and decided by Larkin, Presiding Judge; Halbrooks, Judge; and

Johnson, Judge.
                       UNPUBLISHED OPINION

HALBROOKS, Judge

      Relator challenges the decision of the unemployment-law judge (ULJ) that he is

ineligible for unemployment benefits because he was discharged for employment

misconduct, arguing that he did not commit misconduct by failing to work two scheduled

shifts after his Family Medical Leave Act (FMLA) leave ended. We affirm.

                                       FACTS

      Relator Dan Delk, III was employed by respondent Pan-O-Gold Baking Co. as a

full-time production divider operator from September 2000 to January 6, 2014, when he

was discharged after failing to report for scheduled shifts on January 2 and 4. In May

2013, Pan-O-Gold had approved Delk’s request for a 12-week FMLA leave of absence to

undergo knee surgery, and after at least one extension, Delk was expected to return to

work in January 2014. The employer asserted that Delk expressly agreed to return to

work on January 2 and that he was told to check his schedule. Delk contends that no

particular return date was set and that he was awaiting a scheduling call from a

supervisor.

      It is undisputed that Delk saw his nurse practitioner on December 31 and received

a medical statement clearing him to return to work as of that date. On January 4, a

supervisor called Delk and told him to report to a meeting with human resources on

January 6. On January 6, Delk returned to his nurse practitioner, told her that he had

been having transportation problems, and asked her to add “January 6” to his medical

clearance statement, which she did. Delk then met with human resources and offered the


                                          2
medical statement with two return-to-work dates on it. Pan-O-Gold discharged Delk

after the meeting. Delk’s separation notice provides that Delk “didn’t come back after

FMLA” and that he “[t]ried to cover up the reason why he didn’t come back.”

       Delk applied for unemployment benefits and was found ineligible because he had

been discharged for employment misconduct. On appeal, the ULJ held a hearing at

which Delk and two human resources employees testified. The ULJ found that Delk

agreed to return to work on January 2, knew or should have known that he was scheduled

to work on January 2 and 4, and failed to return to work due to transportation problems.

The ULJ determined that Pan-O-Gold “discharged Delk because it believed Delk lied

about his reasons for not returning to work and because he was a no call/no show on

January 2 and 4” and that Delk is ineligible for unemployment benefits because he was

discharged for employment misconduct. Upon reconsideration, the ULJ affirmed the

decision. This certiorari appeal follows.

                                     DECISION

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

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

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

Minn. Stat. § 268.105, subd. 7(d) (2014). An employee who was discharged is eligible

for unemployment benefits unless the discharge was for employment misconduct. Minn.

Stat. § 268.095, subd. 4(1) (2014).     “Employment misconduct” is “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


                                            3
expect of the employee; or (2) a substantial lack of concern for the employment.” Id.,

subd. 6(a) (2014). Whether an employee engaged in employment misconduct presents a

mixed question of law and fact. Skarhus v. Davanni’s Inc., 721 N.W.2d 340, 344 (Minn.

App. 2006). “Whether the employee committed a particular act is a question of fact.” Id.

Whether that act constitutes employment misconduct is a question of law, which we

review de novo. Stagg v. Vintage Place Inc., 796 N.W.2d 312, 315 (Minn. 2011).

                                             I.

       Delk argues that the ULJ’s factual findings that (1) Delk agreed that he would

return to work from medical leave on January 2, (2) Delk knew or should have known

that he was scheduled to work on January 2 and 4, and (3) transportation problems

hindered Delk’s return are unsupported by substantial evidence. Substantial evidence is

“(1) such relevant evidence as a reasonable mind might accept as adequate to support a

conclusion; (2) more than a scintilla of evidence; (3) more than some evidence; (4) more

than any evidence; or (5) the evidence considered in its entirety.” Minn. Ctr. for Envtl.

Advocacy v. Minn. Pollution Control Agency, 644 N.W.2d 457, 466 (Minn. 2002). “We

view the ULJ’s factual findings in the light most favorable to the decision . . . .” Skarhus,

721 N.W.2d at 344.

       Delk and Pan-O-Gold’s human resources director contradicted each other’s

testimony on whether Delk agreed to return to work on January 2 and whether Delk knew

or should have known that he was scheduled to work on January 2 and 4. There was no

other direct evidence on these questions.         The ULJ credited the human resources

director’s testimony, finding that “[i]t is believable that Delk originally agreed to return


                                             4
to work on January 2” and that the employer’s testimony was “credible because it was

persuasive, reasonable, and described a more plausible sequence of events.” The ULJ

found that the employer’s version was consistent with the date change on the nurse

practitioner’s note and with Delk’s testimony about transportation problems.

       Delk testified that although he had asked to return to work in January and was

cleared to return to work as of December 31, he expected a supervisor to call him to

inform him of his schedule. But he also testified that on January 6, he asked his nurse

practitioner to alter his medical clearance statement because he had experienced

transportation problems. The human resources director testified that Delk had told him in

late November or early December that he would return to work on January 2 and that

Delk knew that it was his responsibility to confirm his schedule.        Specifically, he

testified:

             Every . . . employee is to check their own schedule. He was
             told to check when his schedule was. . . . We have 1200
             employees in this company. . . . The policy here is that the
             employee, if they’ve been out of work, they check their own
             schedule. They either call down here or they show up here
             and check that schedule and he was told to do that.

       The ULJ noted that her findings were “based in large part on the employer’s

testimony which was credible.” The ULJ implicitly discredited Delk’s testimony that he

had missed work because no one called to inform him of his schedule. Credibility

therefore had a significant impact on the ULJ’s decision. See Wichmann v. Travalia &

U.S. Directives, Inc., 729 N.W.2d 23, 29 (Minn. App. 2007) (concluding that credibility




                                            5
has a significant effect on the decision when the ULJ’s misconduct determination rests on

disputed testimony).

       We defer to the ULJ’s credibility determinations when (1) the ULJ sets forth a

valid reason for crediting or discrediting testimony that may significantly affect the

ultimate decision and (2) the determinations are supported by substantial evidence.

Ywswf v. Teleplan Wireless Servs., Inc., 726 N.W.2d 525, 531-33 (Minn. App. 2007); see

also Minn. Stat. § 268.105, subd. 1a(a) (2014)1 (providing that the ULJ “must set out the

reason for crediting or discrediting that testimony” when the witness’s credibility “has a

significant effect on the outcome of a decision”). Delk argues that neither prerequisite to

deference is satisfied, and therefore we must reverse, or at least remand. We disagree.

The ULJ credited the human resources director’s testimony by weighing its plausibility in

light of the other evidence presented and evaluating its reasonableness.2 See Ywswf, 726

N.W.2d at 533 (providing that a comparison of testimony to other evidence is a

permissible factor in evaluating credibility). Although we encourage a more thorough

explanation of the reasons for crediting or discrediting a witness’s testimony, in the

context of this record we are satisfied that the ULJ’s explanation is sufficient.



1
  The 2014 legislation recodified subdivision 1a(a) and merely clarified its language and
therefore applies to pending litigation. See Braylock v. Jesson, 819 N.W.2d 585, 588
(Minn. 2012) (“When the Legislature merely clarified preexisting law, the amended
statute applies to all future or pending litigation.”).
2
  Notably, the ULJ did not credit all of the human resources director’s testimony. After
considering documentary exhibits, the ULJ rejected as speculation his testimony that
Delk could have returned to work on December 1, 2013, but was fulfilling other
obligations in December.

                                              6
       Based on the testimony of the human resources director, Delk’s acknowledgment

that he had asked to come back to work in January and was cleared to return as of

December 31, his testimony that he told his nurse practitioner that he was experiencing

transportation problems—which was at odds with his testimony that he had missed shifts

due to lack of notice—and his effort to alter the medical clearance date on the statement,

we conclude that the ULJ’s reasons for her credibility determinations are supported by

the record. Because the ULJ gave reasons for her credibility determinations and they are

supported by the record, there is no basis to overturn the credibility determinations.

       Giving deference to the ULJ’s credibility determinations, there is substantial

evidence in the record to support the findings that Delk agreed to return to work on

January 2, that he knew or should have known that he was scheduled to work on January

2 and 4, and that Delk did not return to work due to transportation problems. Viewing

the factual findings in the light most favorable to the decision, the factual findings are

supported by substantial evidence in view of the record as a whole. “[T]his court will not

disturb the ULJ’s factual findings when the evidence substantially sustains them.”

Peterson v. Nw. Airlines Inc., 753 N.W.2d 771, 774 (Minn. App. 2008), review denied

(Minn. Oct. 1, 2008). Thus, the ULJ’s factual findings will not be disturbed.

                                             II.

       Delk argues that the ULJ erred in determining that his conduct constituted

employment misconduct because his absences were the result of good-faith error,

miscommunication, and confusion regarding the FMLA policy. But because we uphold

the ULJ’s findings that Delk agreed to return to work on January 2, knew or should have


                                             7
known that he was scheduled to work on January 2 and 4, and missed work due to

transportation problems, we cannot conclude that his absences were the result of good-

faith error, miscommunication, or confusion regarding the FMLA policy.

       Delk also argues that his two absences should be viewed as a single incident. If

the basis for the discharge “involved only a single incident, that is an important fact that

must be considered.” Minn. Stat. § 268.095, subd. 6(d) (2014). But Delk cites no

authority in support of his argument that missing work twice is a single incident. And

generally, a single unexcused absence from work may constitute a serious violation of the

standards an employer has the right to reasonably expect, unless the absence was “beyond

the employee’s control and did not display a disregard for employment.” Hanson v.

Crestliner Inc., 772 N.W.2d 539, 542-43 (Minn. App. 2009); see also Del Dee Foods,

Inc. v. Miller, 390 N.W.2d 415, 417-18 (Minn. App. 1986) (discussing several Minnesota

cases that have held that a single absence may constitute misconduct).

       Even if Delk’s absences were characterized as a single incident, under the facts

found by the ULJ, this single incident would qualify as misconduct. See Hanson, 772

N.W.2d at 543; see also Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 806 (Minn.

2002) (“A single incident can constitute misconduct when an employee deliberately

chooses a course of conduct that is adverse to the employer.”). The ULJ’s factual

findings do not support a conclusion that Delk’s absences were beyond his control or that

he did not display a disregard for employment.

       Failure to return to work after a medical leave ends may also demonstrate an

employee’s “substantial lack of concern” for the job and be characterized as disqualifying


                                             8
misconduct. See Fresonke v. St. Mary’s Hosp., 363 N.W.2d 328, 330 (Minn. App. 1985)

(interpreting 1983 version of the statute). And “[d]ishonesty that is connected with

employment may constitute misconduct.” Baron v. Lens Crafters, Inc., 514 N.W.2d 305,

307-08 (Minn. App. 1994); see also Skarhus, 721 N.W.2d at 342, 344 (concluding that

employee’s theft of an order of cheese bread and extra meat constituted disqualifying

misconduct because it undermined the employer’s ability to assign essential job functions

to her).   The ULJ found that Pan-O-Gold discharged Delk in part because human

resources personnel believed he had lied about the reasons for failing to return after his

leave ended, and the record supports this finding.

       “A good faith misunderstanding of the employer’s rules or policies does not

constitute misconduct.” Tuckerman Optical Corp. v. Thoeny, 407 N.W.2d 491, 493

(Minn. App. 1987). But the ULJ found that Delk knew or should have known that he was

supposed to be at work and did not report due to transportation problems. There was no

misunderstanding. We conclude that the ULJ did not err in determining that “Delk’s

conduct was a serious violation of standards of behavior the employer had a right to

reasonably expect and showed a substantial lack of concern for his employment,” and

that he is ineligible for unemployment benefits because he committed employment

misconduct.

       Affirmed.




                                             9
