This opinion will be unpublished and

may not be cited except as provided by

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





Lon J. Hoy,


Heartthrob Exhaust Inc.,

Department of Employment and Economic Development,

Filed December 11, 2007


Peterson, Judge


Department of Employment and Economic Development

File No. 14255 06


Lon J. Hoy, 7588 North Shore Drive, Spicer, MN  56288-9665 (pro se relator)

Heartthrob Exhaust Inc., 60819 US Highway 12, Litchfield, MN  55355-5227 (respondent employer)

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


            Considered and decided by Peterson, Presiding Judge; Willis, Judge; and Wright, Judge.

U N P U B L I S H E D   O P I N I O N


This appeal is from a decision of an unemployment law judge (ULJ) that relator is disqualified from receiving unemployment benefits because he was discharged from his employment for misconduct.  We affirm.


            Relator Lon J. Hoy was employed by respondent Heartthrob Exhaust, Inc. as a machine operator and janitor from July 17, 2006, until September 19, 2006.  After being discharged, Hoy sought to establish an unemployment-benefits account with respondent Department of Employment and Economic Development (DEED).  DEED determined that Hoy was disqualified from receiving benefits because he was discharged for employment misconduct. 

            Hoy challenged this determination, and a telephone hearing was held before a ULJ.  At the hearing, John Forbes, an owner of Heartthrob, testified that safety rules were in place that prohibited employees from engaging in conversation while operating machinery and from interrupting coworkers who were operating machinery.  Forbes testified that these safety rules are communicated to employees through training on each machine, safety meetings, and “safety sheets” that employees must sign.  Forbes also testified that employees were instructed when hired that smoking was permitted only during breaks in a designated area behind the building.  Heartthrob’s policy prohibiting smoking in the building or within five feet of the entrance was posted by the front door.

            Forbes testified that on September 18, Hoy was reprimanded for a safety violation because he was talking to someone while he was cutting a pipe.  Forbes stated that halfway through a cut, Hoy looked away from the machine to talk with someone.  Forbes testified that on another occasion, Hoy distracted another employee who was operating a cutting machine.  Delores Forbes, a co-owner of Heartthrob, testified that employees complained to her that Hoy would yell across the room and distract other employees while they were working on equipment. 

            John Forbes testified that on September 19, he saw Hoy smoking while working outside the building.  Hoy was on a ladder cleaning spider webs from the awning over the front door.  Forbes immediately discharged Hoy. 

            Hoy testified that he was not shown any written materials explaining the safety policies and that the policies were not explained to him.  Hoy stated that he could not remember the specific incident when he was engaged in a conversation while he was cutting a pipe, but that he was “able to walk and chew gum at the same time.” He testified that when reprimanded by his supervisor, he told the supervisor that he “thought it was ridiculous because if you don’t have any common sense, logic, and reason, you shouldn’t be on a machine to start with.”   

            Hoy admitted smoking while working outside.  He testified that he knew employees were prohibited from smoking inside the building, but that he believed that they could smoke while working outside. 


The ULJ concluded that

the preponderance of the evidence supports the conclusion Hoy intentionally, negligently, or indifferently committed employment violations on September 18, 2006 and September 19, 2006.  His violations were clear and serious violations of standards of behavior Heartthrob had a right to reasonably expect of him and clearly displayed a substantial lack of concern for his employment so as to amount to employment misconduct and disqualification.


Hoy’s request for reconsideration was denied, and this certiorari appeal followed.



            This court may reverse or modify the decision of a ULJ if the substantial rights of the petitioner may have been prejudiced because the ULJ’s findings, inferences, conclusion, or decision are affected by error of law or unsupported by substantial evidence.  Minn. Stat. § 268.105, subd. 7(d)(4), (5) (2006).  Substantial evidence means “(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).         

            “Whether an employee engaged in conduct that disqualifies the employee from unemployment benefits is a mixed question of fact and law.”  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  Whether an employee committed an act alleged to be misconduct is a fact question.   Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  We defer to the ULJ’s findings of fact.  Ywswf v. Teleplan, 726 N.W.2d 525, 529 (Minn. App. 2007); see also In re Excess Surplus Status of Blue Cross & Blue Shield of Minn., 624 N.W.2d 264, 278 (Minn. 2001) (noting that an appellate court will “defer to an agency’s conclusions regarding conflicts in testimony, the weight given to expert testimony and the inferences to be drawn from testimony”).  But whether a particular act constitutes employment misconduct is a question of law, which this court reviews de novo.  Schmidgall, 644 N.W.2d at 804; Scheunemann, 562 N.W.2d at 34.

            Employees discharged for employment misconduct are disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4(1) (2006).  Employment misconduct is “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) (2006). 

            Hoy disputes the ULJ’s factual finding that he knew about the policy prohibiting smoking while working.  He argues that he did not know that he was not permitted to smoke outside during work hours.  But Forbes testified that when employees started employment, they were instructed that smoking was allowed only in a designated area behind the building during breaks.  The ULJ was entitled to conclude that Forbes’s account is more credible.  See Ywswf, 726 N.W.2d at 529. 

            Hoy also argues that he was not unsafe in his operation of the machines, he has not hurt anyone or had any “near misses,” and “everybody” talks while operating the machines.  Hoy disputes the necessity of the policies prohibiting employees from talking while operating a machine and from talking to a coworker while the coworker is operating a machine, but he does not dispute that he violated the policies.  Thus, the ULJ’s conclusion that Hoy knowingly violated safety policies is supported by the record.  An employer has a right to expect that its employees will abide by reasonable policies and procedures.  McGowan v. Executive Express Transp. Enters., Inc., 420 N.W.2d 592, 596 (Minn. 1988).  Even if Heartthrob could have operated without the policies, the policies are reasonable, and violating the policies is employment misconduct. 

            Because violating these reasonable policies is employment misconduct and the ULJ’s factual determinations that Hoy violated the policies are supported by substantial evidence, the ULJ did not err in concluding that Hoy was discharged for employment misconduct, and, therefore, he is disqualified from receiving unemployment benefits.


            Hoy has submitted to this court several documents that discuss legal matters other than the ULJ’s determination that Hoy is disqualified from receiving unemployment benefits.  These other matters are beyond the scope of our review, and we cannot address them in this unemployment-benefits case.  See Minn. R. Civ. App. P. 103.03(j) (appeal may be taken from decisions as may be appealable by statute); Minn. Stat. § 268.105, subd. 7(a) (2006) (court of appeals shall review unemployment law judge’s decision).

            Also, this court cannot base its decision on matters outside the record.  Rostamkhani v. City of St. Paul, 645 N.W.2d 479, 483 (Minn. App. 2002).  The record in this court consists of the papers filed in the trial court, the exhibits, and the transcript.  Minn. R. Civ. App. P. 110.01.  The documents that Hoy submitted to this court that were not presented to the ULJ are outside the record on appeal, and we cannot consider them.