This opinion will be unpublished and

may not be cited except as provided by

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






Bradley P. Hagen,





United Air Lines, Inc.,



Department of Employment and Economic Development,



Filed May 15, 2007


Crippen, Judge*


Department of Employment and Economic Development

File No. 2300 06


Thomas H. Boyd, Matthew D. Spohn, Winthrop & Weinstine, P.A., Suite 3500, 225 South Sixth Street, Minneapolis, MN 55402-4629 (for relator)


United Air Lines, Inc., c/o TALC UCM Services, Inc., P.O. Box 283, St. Louis, MO  63166-0283 (respondent)


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


            Considered and decided by Stoneburner, Presiding Judge; Shumaker, Judge; and Crippen, Judge.

U N P U B L I S H E D   O P I N I O N


            Relator Bradley Hagen challenges the decision of the unemployment law judge that he was disqualified from receiving unemployment benefits because he had been discharged for misconduct.  Because the record fails to address whether relator’s conduct had a significant adverse impact on the employer, we reverse.


            Relator was a customer-service representative for respondent United Air Lines for six years before he was discharged by a hearing officer after an investigation into an incident that occurred on October 6, 2005.  On that day, relator was working past his scheduled hours with acting service manager Anthony Rico to rebook Air Canada passengers whose flight had been cancelled.  A “Premier Executives” customer, who was not one of the Air Canada passengers, cut in front of a number of them and said that he wanted to book a future flight.  Relator, whose first priority was rebooking the passengers, asked him to step aside and wait, but he refused to do so.  Relator then asked Rico, who was working next to him, for assistance, but Rico said that the customer would have to wait.  The customer continued to demand immediate assistance.  The conversation between relator and the customer grew more heated, and each told the other to “shut up.”

            Relator told the customer he would call the police if the customer did not calm down, and it was at this point that Rico stepped in and told the customer he would assist him.  The customer then said something to relator.  According to Rico and a supervisor to whom the customer later complained, relator told the customer to “kiss my ass.”  Relator denied saying this and two other employees working nearby testified they did not hear relator make this statement.

            Rico issued the customer a $100 voucher based on disservice to a customer, and another employee then booked the ticket for him.  Rico also reported the incident to his supervisors.  The customer complained to one of relator’s supervisors and submitted a later complaint.  Respondent United subsequently discharged relator for this incident and he sought unemployment benefits.  The matter ultimately came before the unemployment law judge for an evidentiary hearing.  After the hearing, the ULJ ruled that relator had been discharged for employment misconduct and was disqualified from receiving unemployment benefits.  Relator requested reconsideration and, on reconsideration, the unemployment law judge (ULJ) affirmed her initial decision. 


            We are to affirm the decision of the ULJ absent a showing that “the substantial rights of the petitioner may have been prejudiced because the findings, inferences, conclusion, or decision are . . . affected by . . . error of law . . . [or] unsupported by substantial evidence in view of the entire record as submitted.”  Minn. Stat. § 268.105, subd. 7(d) (2006).  Whether an employee engaged in particular conduct is a question of fact.  Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  But whether the employee’s actions are misconduct for purposes of the unemployment benefits law is a question of law reviewed de novo.  Jenkins v. Am. Express Fin. Corp., 721 N.W.2d 286, 289 (Minn. 2006).

1.  Underlying Finding

            Relator briefly challenges several findings.  He contends that Rico’s testimony that he uttered the vulgarity to the customer was not credible.  We are to give deference to the ULJ’s credibility determinations.  Skarhus v. Davanni’s Inc., 721 N.W.2d 340, 344 (Minn. App. 2006).  There is adequate evidence in the record to sustain this finding. Relator contends that the supervisor’s testimony on this topic was hearsay, but hearsay evidence may be considered in the hearings before the ULJ.  Id. at 345; Minn. R. 3310.2922 (2005).

2.  Misconduct

            An employee who is discharged for employment misconduct as defined in the statute is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4(1) (Supp. 2005).  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) (2004). 

            The ULJ found that United had a right to expect relator to treat customers with respect, especially since he was trained and assigned for work in a customer-service position.  The ULJ found that relator engaged in “highly inappropriate conduct towards a customer” and that his conduct displayed “a serious violation of the standards of behavior an employer has the right to reasonably expect of its employees,” constituting misconduct.

            The disposition of this appeal rests on examining the statutory exceptions to the definition of misconduct.  See id. (setting out exceptions).  Although the ULJ made specific credibility determinations to support the conclusion that relator uttered a vulgarity to the customer, the findings were deficient in failing to address the central issue of misconduct exceptions.

            The ULJ is expected to “assist unrepresented parties in the presentation of evidence” and “ensure that relevant facts are clearly and fully developed.”  Minn. R. 3310.2921 (2005).  The ULJ also must help “to recognize and interpret the parties’ claims.”  Ntamere v. Decisionone Corp., 673 N.W.2d 179, 180 (Minn. App. 2003) (citation and quotation omitted).  This is especially true because the hearings are conducted “without regard to any common law burden of proof as an evidence gathering inquiry and not an adversarial proceeding.”  Minn. Stat. § 268.105, subd. 1(b) (Supp. 2005).  In addition to the absence of helpful findings, the record here is not developed to include evidence on the significance of the October 2005 incident.

            On the record that was made, we first examine whether the conduct constituted “a single incident that does not have a significant adverse impact on the employer.”  Minn. Stat. § 268.095, subd. 6(a).[1]  There is no dispute that relator’s discharge resulted from a “single incident,” and we focus on whether the incident had a “significant adverse impact on the employer.”  Id.

            We are not to base the significance of the incident on the limited dollar amount of its impact.  Skarhus, 721 N.W.2d at 344 (upholding misconduct decision premised on petty theft that showed the employer could no longer entrust its cashier with responsibility for the essential functions of her job).  But absent theft or a breach of trust, a single act violating an employer’s policy will not in itself show that the act had a significant adverse impact on the employer.  Pierce v. DiMa Corp., 721 N.W.2d 627, 630 (Minn. App. 2006).  It is not contended that a technical violation of an employer’s policy could in each instance constitute a significant adverse impact that defied the employee’s training and stated duties.

            As in Pierce, there is no evidence in this record of the significance of the incident to the employer.  See id.  Unlike Skarhus, there is no evidence of theft or dishonesty; instead, the facts show that relator was subjected to remarkable provocation by a hostile customer.  Indeed, the evidence shows, if anything, that the customer, who received a $100 voucher, was pacified; in his later complaint to the employer, the moderating customer sought more training, not discharge, for relator.  Where there was no evidence that the conduct had a “significant adverse impact” on the employer, relator’s act does not constitute misconduct under this exception.

            The undisputed evidence also showed that relator had worked for this employer for six years with no record of prior difficulties.  The acting service manager initially denied relator’s request for help, despite the circumstances in which the employee was being subjected to unwarranted provocation by the customer, to the point that relator was ready to call the police for assistance.  There was no suggestion relator engaged in a calculated act of misconduct toward the employer or customer.  These facts suggest issues regarding other exceptions, which we need not review in light of our foregoing holding on the exception for a single incident:  whether relator engaged in “conduct an average reasonable employee would have engaged in under the circumstances,” or “good faith errors in judgment if judgment was required”—exceptions that are directly implicated by the ULJ’s finding that relator’s conduct was both “highly inappropriate” and a “serious” violation of reasonable expectations.  Minn. Stat. § 268.095, subd. 6(a).[2] 

            On this record, the facts arouse the need to address the exceptions to misconduct.  The record at hand will not sustain finding against the exception for a single incident without significant adverse impact on the employer.  Consequently, we reverse the holding of misconduct; relator was qualified for unemployment benefits.


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

[1]  The parties address the applicability of the former common-law exception for “hotheaded incidents.”  See Isse v. Alamo Rent-A-Car, 590 N.W.2d 137, 140 (Minn. App. 1999), review denied (Minn. Apr. 20, 1999).  We are constrained to limit our review to statutory exceptions because the legislature has deemed the statutory definition exclusive.  Minn. Stat. § 268.095, subd. 6(e) (2004).

[2]  It is unlikely that the exception for inadvertence would apply.  Minn. Stat. § 268.095, subd. 6(a).