This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






Faith N. Nelson,





SMSC Gaming Enterprises,



Department of Employment and

Economic Development,



Filed December 19, 2006

Klaphake, Judge


Department of Employment and Economic Development

File No. 15565 05


Faith N. Nelson, General Delivery, Minneapolis, MN  55440 (pro se relator)


SMSC Gaming Enterprises, Attn: Divisional HR, 2400 Mystic Lake Boulevard N.W., Prior Lake, MN  55372-9004 (respondent)


Linda A. Holmes, Department of Employment and Economic Development, E200 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101 (for respondent Department)


            Considered and decided by Klaphake, Presiding Judge, Ross, Judge, and Huspeni, Judge.*

U N P U B L I S H E D   O P I N I O N


            Relator Faith Nelson challenges the decision of an unemployment law judge (ULJ), who determined that relator was disqualified from receiving unemployment benefits because she committed employment misconduct.  Relator’s employer, respondent SMSC Gaming Enterprises, claimed that it discharged her for insubordination and for using profanity in violation of the employer’s rules.  Because the ULJ was entitled to find the employer’s witnesses more credible than relator, and because the ULJ could reasonably conclude that relator’s conduct demonstrated a serious disregard of her employer’s interests, we affirm.


            Relator was hired as a concession attendant by respondent SMSC Gaming on November 16, 2004.  She generally worked the graveyard shift, from 10:15 p.m. until 6:45 a.m., from Thursday through Tuesday.

            At the time she was hired, relator went through an orientation in which company policies were explained to her.  One of those policies prohibited the use of obscene language and any rude, discourteous, or offensive behavior toward coworkers, supervisors, or guests.

            Approximately one month after she was hired, on December 17, 2004, relator met with her immediate supervisor, Mary Rolbiecki, and with restaurant manager Judy Theis.  Rolbiecki and Theis testified that during the meeting, relator was warned about her rude and discourteous behavior toward coworkers.  Relator denied that she was given any warning and claimed that she was merely reminded of the employer’s policies at the meeting.

            During relator’s shift on either January 11 or January 12, 2005, relator repeatedly called a coworker lazy and clapped her hands in front of his face.  Rolbiecki testified that she warned relator to stop but claimed that relator continued her behavior.  Rolbiecki reported the incident to Theis, who prepared a written warning for Rolbiecki to deliver to relator.

            Rolbiecki testified that when she called relator into her office to discuss the warning, relator listened for a moment, uttered a profanity, and then walked out.  Relator could be heard yelling on the floor of the restaurant that she was being treated unfairly.  Rolbiecki told relator that she should leave, but relator wandered the halls for approximately one hour before punching out.  When relator reported for her next scheduled shift, she was discharged for insubordination and using inappropriate language.

            At the telephone hearing before the ULJ, relator denied that she had received a warning on December 17, 2004, denied that she had called any coworkers lazy, denied that Rolbiecki had tried to present her with the written warning, denied uttering a profanity, and denied walking out.  Relator claimed that she was discharged for another, prior incident in which she had complained that another coworker had called her a derogatory name.

            At the end of the hearing, relator requested that the employer produce her time records to prove that the employer’s witnesses were lying because she was not working on the days in question.  The ULJ interpreted her request as one for a continuance and a subpoena, and asked the witnesses several additional questions.  The ULJ denied relator’s requests, concluding that relator’s own testimony contradicted her claims of fabrication.

            Finding the employer’s witnesses to be more credible, regardless of the exact dates of the incidents, the ULJ determined that relator had committed employment misconduct and that she was therefore disqualified from receiving benefits.


            On review, we may affirm the ULJ’s decision, remand for further proceedings, or reverse or modify if the substantial rights of the petitioner have been prejudiced because the findings, inferences, conclusion, or decision are “(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) (Supp. 2005).


            Employment misconduct is defined as “any intentional, negligent or indifferent conduct, on the job or off the job (1) that displays clearly a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee, or (2) that displays clearly a substantial lack of concern for the employment.”  Minn. Stat. § 268.095, subd. 6(a) (2004).  An employee who is discharged for employment misconduct is disqualified from receiving unemployment benefits.  Id., subd. 4(1) (2004).

            Whether an employee has committed employment misconduct is a mixed question of fact and law.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  Whether the employee committed a particular act is a question of fact.  Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  We view the ULJ’s factual findings in the light most favorable to the decision.  Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996).  But whether an act committed by the employee constitutes employment misconduct is a question of law, which we review de novo.  Scheunemann, 562 N.W.2d at 34.

            Relator asserts that her discharge was based on false accusations and insists that the employer’s witnesses were lying about the incidents that led to her discharge.  But the ULJ specifically found that the employer’s witnesses were more credible than relator.  This court must defer to the ULJ’s credibility determinations and to the weight given to various evidence; we cannot reevaluate credibility or reweigh the evidence on appeal.  Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995).  The ULJ acted within her discretion in accepting the testimony of the employer’s witnesses, who testified that relator was discharged after she had received a verbal warning about her behavior, refused to accept a written warning, used foul language, and walked out of a meeting with her supervisor.

            A knowing violation of an employer’s directives, policies, or procedures may constitute employment misconduct because it may demonstrate a substantial lack of concern for the employer’s interests.  Schmidgall, 644 N.W.2d at 804; see Vargas v. Nw. Area Found., 673 N.W.2d 200, 206 (Minn. App. 2004) (employer has right to expect employees to abide by reasonable requests), review denied (Minn. Mar. 30, 2004).  Relator’s conduct was intentional and represented a serious violation of her employer’s stated policies and of the standards of behavior that her employer had a right to expect of her.  Thus, the ULJ did not err in concluding that relator committed employment misconduct and is therefore disqualified from receiving unemployment benefits.


            At the end of the hearing before the ULJ, relator requested that her employer be required to produce her time records.  She claimed that her time records would prove that the employer’s witnesses were lying about the events leading up to her discharge.

            Relator could have requested this evidence by subpoena prior to the hearing, but she failed to do so.  See Minn. R. 3310.2914, subp. 1 (2005) (providing that subpoenas are available to compel production of documents and may be obtained by “calling or writing the appellate office sufficiently in advance of the scheduled hearing to allow for the service of the subpoenas”).  The ULJ does have some responsibility to “assist unrepresented parties in the presentation of evidence” and to “ensure that relevant facts are clearly and fully developed.”  Minn. R. 3310.2921 (2005).  And, when a request for a subpoena has been denied, a party may renew that request at the hearing; if the ULJ grants the request, he or she “may adjourn the hearing to allow a sufficient time for service and compliance with the subpoena.”  Minn. R. 3310.2914, subp. 1.  The ULJ may deny a request for a subpoena, however, if the “documents sought would be irrelevant, immaterial, or unduly cumulative or repetitious.”  Id.

            Here, the ULJ denied relator’s request for a continuance and subpoena only after more fully developing the facts and attempting to understand relator’s arguments on the issues.  The ULJ essentially concluded that the documents requested by relator were unnecessary because even if some of the dates were incorrect, the testimony of the employer’s three witnesses was still more credible than relator’s testimony.  Based on our review of the record, we conclude that the ULJ’s denial of relator’s request was not an abuse of discretion.


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