This opinion will be unpublished and

may not be cited except as provided by

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





Mark S. Muellner,


Cherne Industries, Inc.,


Department of Employment and Economic Development,





Filed December 11, 2007


Randall, Judge


Department of Employment and Economic Development

File No. 798706


Mark S. Muellner, 7840 Dickson Circle, Inver Grove Heights, MN 55076-3439 (pro se respondent)

Thomas E. Marshall, Katherine C. Bischoff, Jackson Lewis LLP, 150 South Fifth Street Towers, Suite 1450, Minneapolis, MN  55402 (for relator)

Lee B. Nelson, Minnesota 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 Dietzen, Presiding Judge; Randall, Judge; and Halbrooks, Judge.


U N P U B L I S H E D   O P I N I O N


            Relator employer challenges the decision by the unemployment law judge (ULJ) that respondent employee was not disqualified from unemployment benefits because he had been discharged for poor performance and not for employment misconduct.  Relator argues that the ULJ (a) ignored evidence of the employee’s repeated refusal to complete his job duties and follow his supervisor’s instructions, and (b) ignored settled law that once an employer makes a reasonable request, the employee’s failure to follow it constitutes employment misconduct.  The evidence and testimony supports the ULJ’s conclusion that the employee was discharged for reasons other than employment misconduct.  We affirm. 


            Relator Cherne Industries, Inc. manufactures plumbing and underground testing and repair equipment.  In March 2005, relator hired respondent Mark Muellner as a lead person for the second shift in relator’s Repetitive Division.  As the lead person, Muellner’s duties included working in the production line, supervising employees, and making sure that the production goals were met.  He was also responsible for quality control inspections, correcting errors, and writing reports in regard to production, employee issues, and quality control issues.   

            During his employment with relator, Muellner had four performance reviews.  These reviews praised Muellner for learning many new things in a short amount of time and complimented him for catching quality errors.  The reviews also acknowledged that Muellner’s quality of work product was “fine.”  But the reviews emphasized that Muellner was having problems keeping the second shift on schedule and that Muellner’s attainment numbers needed to be higher.  The reviews further emphasized that Muellner was having problems learning and completing all of the tasks assigned to him.   

            In mid-March, Muellner’s direct supervisor Heather Schenian worked on the second shift to observe Muellner’s performance.  On March 13, 2006, Muellner did not report for work due to inclimate weather.  That night, Muellner’s shift completed its work schedule long before the end of the shift.  Schenian found this to be evidence that Muellner’s presence must be the reason that the second shift was not efficient on other days.  Schenian also claimed that she was told by second-shift employees that Muellner spent a lot of time working at his computer, and that they did not know that Muellner was supposed to work with them during their shift. 

            On March 20, 2006, Muellner was given a warning stating that there was a history of “productivity concerns, lack of schedule attainment, and work assignments not carried out” during the second shift.  The warning cited four “incidents” that led to the warning, two of which were good performance by second shift on nights when Muellner called in sick or was absent due to the weather.  The other two involved a task that had not been completed, and Schenian’s observation that tasks in general took Muellner too long to complete.  The warning said that Muellner was being “put on notice that he is expected to maintain the same productivity, efficiency, and attainment that was achieved” during the week Schenian worked on second shift.

            Muellner responded by submitting a two-page response to the warning.  Muellner blamed his failure to meet expectations on having additional job duties, having to complete performance reviews, and not having resources available to complete his non-direct labor tasks.  As a possible solution to the problems, Muellner requested that he be allowed to start work 15 minutes earlier and stay 15 minutes later each day in order to prepare for his shift and brief the supervisor of the next shift.  This request was denied.   

            Because Muellner’s performance did not improve, relator hired an independent investigator to observe Muellner for a two-week period.  After the two-week period, the investigator reported that Muellner:

·        Spent an average of only 60% of his time doing direct labor work.  Requirement is 85%.  (Muellner’s non-direct labor time was spent sitting at his desk and leaving the work area for unknown destinations for periods of time.)

·        Delegated training duties of the observer to another hourly associate in the department.  When the observer asked who to go to if he had questions, Muellner told him to “ask anyone.”

·        Committed a safety violation by sitting on a rolling cart.

·        Repeatedly moved a desk chair into the work area and sat down while performing direct labor tasks.  (Associates are not permitted to sit while they perform their job duties.)

·        Was observed leaving the building before the break bell sounded to smoke.  Was observed already outside on break when the break bell rang.  Muellner had been warned about this on previous occasions. 

·        Failed to enforce the manufacturing dress code, allowing the associate to leave his shi[rt] untucked the entire first week (safety issue).


As a result of the report, relator terminated Muellner’s employment. 

            Following his termination, Muellner established a benefit account with the Minnesota Department of Employment and Economic Development (department).  A department adjudicator initially determined that Muellner was discharged from employment for reasons other than employment misconduct and was not disqualified from receiving benefits.  Relator appealed that determination.  Following a de novo hearing, a department unemployment law judge (ULJ) affirmed the initial determination.  Relator sought reconsideration of the ULJ’s decision, but the ULJ issued an order affirming the initial determination.  This certiorari appeal followed.       


            Relator argues that the ULJ erred in concluding that Muellner was not discharged because of employment misconduct.  This court may affirm, remand, reverse, or modify the ULJ’s decision “if 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)(4), (5) (Supp. 2005).

            Whether an employee has engaged in conduct disqualifying her from unemployment benefits is a mixed question of fact and law.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  The question of whether an employee actually engaged in acts, actions, or a pattern of conduct are questions of fact.  Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  But whether those actions constitute employment misconduct is a question of law, which this court reviews de novo.  Id.

            An applicant who is discharged from employment is disqualified from benefits only if the conduct for which the applicant was discharged amounts to employment misconduct.  Minn. Stat. § 268.095, subd. 4 (Supp. 2005).  Minnesota law defines “employment misconduct” as:

[A]ny 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.


            Inefficiency, inadvertence, simple unsatisfactory conduct, a single incident that does not have a significant adverse impact on the employer, conduct an average reasonable employee would have engaged in under the circumstances, poor performance because of inability or incapacity, good faith errors in judgment if judgment was required, or absence because of illness or injury with proper notice to the employer, are not employment misconduct. 


Id., subd. 6 (2004).  This definition of employment misconduct is “exclusive and no other definition . . . appl[ies].”  Id., subd. 6(e).

            Relator argues that the ULJ’s decision is erroneous because the ULJ ignored evidence of Muellner’s repeated refusal to complete his job duties and to follow his supervisor’s instructions.  We disagree.  The ULJ found that “Muellner was discharged mainly because he did not meet [relator’s] goals and expectations in regard to efficiency and attainment percentages.”  The record supports this conclusion.  Muellner received four employee reviews while he was employed by relator.  These reviews provided employees with feedback regarding performance of their employment duties.  The reviews acknowledged that Muellner was doing well in certain areas, but also informed Muellner that he needed to improve in other areas.  Although Muellner apparently failed to improve his performance in the areas cited in some of the reviews, this conduct, standing alone, does not constitute employment misconduct.  See id., subd. 6(a) (stating that “simple unsatisfactory conduct” and “poor performance because of inability or incapacity” does not constitute employment misconduct).   

            Relator argues that the ULJ’s decision “misses the point” because Muellner was terminated for “not perform[ing] his job,” not for doing “a poor job.”  The record reflects that Muellner communicated to his employer that he believed the time he was given to perform the required tasks was inadequate.  Relator’s position that Muellner was “not performing his job,” may have been attributable to Muellner’s inability to do the job.  As the department points out, to show employment misconduct, relator must demonstrate that Muellner was actually capable of performing his employment duties, that he had a history of performing his duties, and that later Muellner’s job performance declined.       The ULJ concluded that relator failed to meet its burden.  The ULJ found, based on Muellner’s testimony, that Muellner “sometimes did not meet the goals because of a shortage of parts or supplies.  Sometimes employees called in sick or took time off.”  The ULJ found that Muellner regularly sent emails to his supervisor when there were questions about production or other issues, indicating that Muellner was “doing his best to meet [relator’s] expectations.”  The ULJ further noted that “Muellner credibly testified that he did his best.”  It is settled that appellate review defers to a ULJ’s determinations regarding witness credibility and conflicting evidence.  See Skarhus v. Davanni’s Inc., 721 N.W.2d 340, 344 (Minn. App. 2006) (deferring to ULJ’s determinations regarding witness credibility and conflicting evidence); see also Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995) (stating that this court defers to the decision-maker’s ability to weigh the evidence, and that “we may not weigh . . . evidence on review”).  The evidence and testimony support the conclusion that Muellner was discharged for reasons other than employment misconduct.  The ULJ properly concluded that Muellner was entitled to receive unemployment benefits.

            Finally, relator cites a litany of cases claiming that the ULJ’s decision ignores settled law.  Specifically, relator argues that the ULJ’s decision conflicts with cases holding that once an employer makes a reasonable request, the employer may reasonably expect the employee to follow that request.  See, e.g., McGowan v. Executive Express Transp. Enters., Inc., 420 N.W.2d 592, 596 (Minn. 1988) (holding that employee’s deliberate, calculated and intentional refusal to follow the employer’s reasonable order constituted misconduct).  Relator correctly states the law, but misapplies the law to the facts.  Muellner’s failure to meet relator’s performance expectations does not mean he was “refusing” to meet the expectations. Rather, Muellner may have been unable to meet relator’s expectations, a conclusion that would not amount to employment misconduct.  As noted above, the ULJ found that Muellner credibly testified that he was “doing his best” to meet relator’s expectations.  Muellner’s conduct does not amount to employment misconduct.