Sheffel v. Gavilon Grain, LLC, A18-0099

Robert Sheffel, Relator, v. Gavilon Grain, LLC, Respondent,Department of Employment and Economic Development, Respondent.

A18-0099

STATE OF MINNESOTA IN COURT OF APPEALS

August 27, 2018

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2016).

Affirmed

Schellhas, Judge

Department of Employment and Economic Development

File No. 35827618-3

Robert Sheffel, Cannon Falls, Minnesota (pro se relator)

Gavilon Grain LLC, c/o TALX UCM Services, Inc., St. Louis, Missouri (respondent employer)

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

Considered and decided by Peterson, Presiding Judge; Cleary, Chief Judge; and Schellhas, Judge.

UNPUBLISHED OPINION

SCHELLHAS, Judge

Relator challenges an unemployment-law judge's decision that he is ineligible for unemployment benefits. We affirm.

FACTS

Relator Robert Sheffel began working as a union laborer for respondent Gavilon Grain LLC (Gavilon) in March 2004. Gavilon's code of conduct and harassment policy prohibited harassing or threatening a fellow employee or retaliating against a fellow employee for reporting violations of Gavilon's policies. Gavilon also reserved the right to terminate any employee who engaged in retaliatory conduct toward another employee. In late 2012 or early 2013, Gavilon discharged Sheffel for harassing and intimidating other employees, including "threats directed towards other employees." But Gavilon offered reemployment to Sheffel, and in April 2013, he signed a "last-chance agreement," which provided that "any violation of any company policy . . . will result in the immediate termination of his employment," and accepted reemployment with Gavilon.

On July 28, 2017, Sheffel participated in a dispute between two coworkers, T.K. and C.L., regarding C.L.'s report of a safety concern to Gavilon. C.L. claims that Sheffel threatened him by stating, "If you want to argue about this, we can [go] outside the gates . . . when we get off tonight at 7." Multiple witnesses claimed to have heard this statement or some variation of it. After investigating the incident, Gavilon terminated Sheffel's employment for violating its code of conduct, harassment policy, and the last-chance agreement.

Respondent Minnesota Department of Employment and Economic Development (DEED) determined that Sheffel was ineligible for unemployment benefits because Gavilon discharged him for misconduct. Sheffel appealed the determination and an unemployment-law judge (ULJ) conducted a hearing. Gavilon's human-resources manager, R.R., and plant manager, R.K., represented Gavilon at the hearing. Sheffel did not deny that the dispute occurred but denied that he threatened C.L. Sheffel testified that he told C.L. that they could talk at any time because Sheffel was a "union steward." The ULJ found Sheffel's testimony not credible and the testimony of Gavilon's representatives credible. The ULJ therefore found that it was "more likely than not that Sheffel made the comment to [C.L.] and intended the comment as a threat of physical harm," and that Sheffel's conduct was a serious violation of the standards of behavior that Gavilon had a right to reasonably expect. The ULJ concluded that Sheffel committed employment misconduct and therefore was ineligible for unemployment benefits. Sheffel subsequently requested reconsideration, and the same ULJ affirmed.

This certiorari appeal follows.

DECISION

This court may reverse the decision of a ULJ "if the substantial rights of the petitioner may have been prejudiced because the findings, inferences, conclusion, or decision are . . . unsupported by substantial evidence in view of the entire record as submitted." Minn. Stat. § 268.105, subd. 7(d)(5) (Supp. 2017). Whether an employee engaged in employment misconduct is "a mixed question of fact and law." Wilson v. Mortg. Res. Ctr., 888 N.W.2d 452, 460 (Minn. 2016). Whether a particular act constitutesemployment misconduct is a question of law, which appellate courts review de novo. Id. Whether an employee committed a particular act is solely a question of fact. Lawrence v. Ratzlaff Motor Express Inc., 785 N.W.2d 819, 822 (Minn. App. 2010), review denied (Minn. Sept. 29, 2010).

An employee is ineligible for unemployment benefits if the employee is discharged due to employment misconduct. Minn. Stat. § 268.095, subd. 4 (2016). "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." Id., subd. 6(a) (Supp. 2017).

Sheffel challenges the ULJ's determination that he engaged in employment misconduct. He first argues that the ULJ based its decision on "false statements made against [him]," noting that some of the witnesses mentioned "nothing to the effect of a threat." But the ULJ reviewed multiple witness statements about the incident. Three of the statements, including C.L.'s, mentioned hearing Sheffel's threat. In affirming the...