This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






Holyfield I. James,





Sears Roebuck and Co.,



Department of Employment and Economic Development,



Filed May 8, 2007


Shumaker, Judge


Department of Employment and Economic Development

File No. 1811 06



Holyfield I. James, 624 South 9th Street, Apt. 303, Minneapolis, MN 55404-1176 (pro se relator)


Sears Roebuck and Co., c/o TALX UCM Services, Inc., P.O. Box 283, St. Louis, MO 63166-0283 (respondent-employer)


Lee B. Nelson, Linda A. Holmes, Minnesota Department of Employment and Economic Development, First National Bank Building, 332 Minnesota Street, Ste. E200, St. Paul, MN 55101-1351 (for respondent-department)

            Considered and decided by Willis, Presiding Judge; Klaphake, Judge; and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N


            Relator Holyfield James challenges the decision that he was disqualified from receiving unemployment benefits because he was discharged for misconduct.  He argues that (a) the testimony and the record do not support the decision and (b) even if he engaged in some misconduct, it did not rise to the level to disqualify him from receiving unemployment benefits.  Because his allegations hinge on credibility issues, and because we must give deference to the ULJ’s credibility determinations, we affirm. 



            Holyfield James worked for Sears Roebuck and Company as a merchandise customer-service representative.  In October 2005, a visibly shaken customer approached James’s supervisor, Peggy Omarzu, and complained that James had yelled and threatened to call the police on him and that he had feared for his personal safety.  The event was formally documented.

            In November 2005, a store assistant told Omarzu that James had yelled, sworn, and made gestures at a customer, making her cry.  James became hostile when the assistant tried to speak with him.  Omarzu asked an operations manager, John Owen, to speak with James and tell him to end his shift if he became belligerent.  James began yelling and screaming at Owens and ran through the department and down an escalator, while screaming and pushing customers.  James never contacted Sears or returned to work, and the company discharged him in late November. 

            James applied for, and was initially granted, unemployment benefits.  Sears appealed, and after a hearing the unemployment law judge (ULJ) decided that James was discharged because of misconduct and, therefore, was disqualified from employment benefits.  At the hearing, James testified that he was never rude to customers, that he never yelled, and that he had not returned to work because he was not on the schedule and no one contacted him about his hours.  Consistent with Omarzu’s testimony, Sears produced Omarzu’s written documentation of the October 13 incident, as well as a statement written by the upset customer; documentation of James’s rudeness to a customer on November 22, 2005; and a written account of the November 26 incident.  James filed a request for reconsideration, and the ULJ affirmed the decision.  This appeal followed. 


            James argues that (a) the testimony and the record do not support the decision and (b) even if he engaged in some misconduct, it did not rise to the level to disqualify him from receiving unemployment benefits.        

            This court will reverse a ULJ’s decision when it reflects an error of law, is “arbitrary or capricious,” or the findings are “unsupported by substantial evidence in view of the entire record.”  Minn. Stat. § 268.105, subd. 7(d) (2006).  Minnesota courts have defined “substantial evidence” as “(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).

            This court defers to the ULJ’s determinations regarding witness credibility and conflicting evidence.  Skarhus v. Davanni’s Inc., 721 N.W.2d 340, 344 (Minn. App. 2006).  “When the parties have presented conflicting evidence on the record, this court must defer to the [ULJ’s] ability to weigh the evidence; we may not weigh that evidence on review.”  Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995).  Both of James’s arguments rely on the credibility of witnesses, and we cannot reweigh this testimony on review.

Testimony and Evidence

James argues that the record does not support the ULJ’s conclusion.  Although James testified that he never yelled or insulted customers and did not know why he was sent home as he had done nothing wrong, credibility determinations are the province of the ULJ and are accorded deference on appeal.  Nichols v. Reliant Eng’g & Mfg., Inc., 720 N.W.2d 590, 594 (Minn. App. 2006).  James cites potentially conflicting evidence about the characterization of his interactions with customers and makes numerous references to the hearing transcript to emphasize that his recollection of the events differed from some of the testimony.  The ULJ specifically noted the contradictory evidence and gave credence to the evidence submitted by Sears, including testimony and contemporaneous, written witness statements.  This court does not reweigh conflicting evidence, and the managers’ testimony regarding the incidents is sufficient to support the ULJ’s findings.  Whitehead, 529 N.W.2d at 352. 

Employment Misconduct

An applicant is disqualified from receiving unemployment benefits when the applicant was discharged due to employment misconduct.  Minn. Stat. § 268.095, subd. 4(1) (Supp. 2005).  Employment misconduct is defined as “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.”  Id., subd. 6(a) (2004).  Generally, failure to follow an employer’s reasonable policies and requests amounts to employment misconduct.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  

            Whether an employee committed employment misconduct is a mixed question of fact and law.  Id. 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).  The ULJ’s factual findings are viewed in the light most favorable to the decision, Skarhus, 721 N.W.2d at 344, and will not be disturbed when substantial evidence supports them.  Minn. Stat. § 268.105, subd. 7(d).  Because credibility determinations are the province of the ULJ, they are accorded deference on appeal.  Nichols,720 N.W.2d at 594.  But whether the 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. 

An employer has a right to expect its employees to abide by reasonable instructions and directions.  Vargas v. Nw. Area Found., 673 N.W.2d 200, 206 (Minn. App. 2004), review denied (Minn. Mar. 30, 2004).  A knowing violation of an employer’s directives, policies, or procedures constitutes employment misconduct because it demonstrates a substantial lack of concern for the employer’s interests.  Schmidgall, 644 N.W.2d at 804.

As part of her testimony, Omarzu testified that a workplace-conduct sheet establishing company policy was posted in public areas and that James signed the handbook containing the policies when he was hired.  The sheet indicates examples of unacceptable conduct leading to termination, including “[f]ailing to conduct yourself in a reasonable and businesslike manner with customers, fellow associates, supervisors and management” and “[d]isorderly conduct, including fighting with or assaulting other associates or customers.”  The ULJ held, and the facts show, that James was aware of the Sears workplace-conduct policy, and that there were at least two documented incidents of James violating these policies by yelling and exhibiting threatening behavior towards customers and Sears employees.  James’s inappropriate behavior on these occasions constitutes misconduct, and he was discharged accordingly.  Since this sort of conduct is clearly prohibited by Sears, and witnesses testified that James violated the policy, we hold that the ULJ’s determination is supported by the evidence.