This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA

IN COURT OF APPEALS

A14-1269

Dan Delk, III, 

Relator, 

vs. 

Pan-O-Gold Baking Co. (Corp.), 

Respondent, 

Department of Employment and Economic Development, 

Respondent.

Filed April 20, 2015

Affirmed

Halbrooks, Judge

Department of Employment and Economic Development

File No. 32251008-3

Thomas H. Boyd, Matthew C. Robinson, Winthrop & Weinstine, P.A., Minneapolis, 

Minnesota (for relator)

Pan-O-Gold Baking Co. (Corp.), St. Cloud, Minnesota (respondent)

Lee B. Nelson, Munazza Humayun, Minnesota Department of Employment and 

Economic Development, St. Paul, Minnesota (for respondent Department of Employment 

and Economic Development) 

Considered and decided by Larkin, Presiding Judge; Halbrooks, Judge; and 

Johnson, Judge. 
2

U N P U B L I S H E D O P I N I O N

HALBROOKS, Judge

Relator challenges the decision of the unemployment-law judge (ULJ) that he is 

ineligible for unemployment benefits because he was discharged for employment 

misconduct, arguing that he did not commit misconduct by failing to work two scheduled 

shifts after his Family Medical Leave Act (FMLA) leave ended. We affirm.

FACTS

Relator Dan Delk, III was employed by respondent Pan-O-Gold Baking Co. as a 

full-time production divider operator from September 2000 to January 6, 2014, when he 

was discharged after failing to report for scheduled shifts on January 2 and 4. In May 

2013, Pan-O-Gold had approved Delk’s request for a 12-week FMLA leave of absence to 

undergo knee surgery, and after at least one extension, Delk was expected to return to 

work in January 2014. The employer asserted that Delk expressly agreed to return to 

work on January 2 and that he was told to check his schedule. Delk contends that no 

particular return date was set and that he was awaiting a scheduling call from a 

supervisor. 

It is undisputed that Delk saw his nurse practitioner on December 31 and received 

a medical statement clearing him to return to work as of that date. On January 4, a 

supervisor called Delk and told him to report to a meeting with human resources on 

January 6. On January 6, Delk returned to his nurse practitioner, told her that he had 

been having transportation problems, and asked her to add “January 6” to his medical 

clearance statement, which she did. Delk then met with human resources and offered the 
3

medical statement with two return-to-work dates on it. Pan-O-Gold discharged Delk 

after the meeting. Delk’s separation notice provides that Delk “didn’t come back after 

FMLA” and that he “[t]ried to cover up the reason why he didn’t come back.” 

Delk applied for unemployment benefits and was found ineligible because he had 

been discharged for employment misconduct. On appeal, the ULJ held a hearing at 

which Delk and two human resources employees testified. The ULJ found that Delk

agreed to return to work on January 2, knew or should have known that he was scheduled 

to work on January 2 and 4, and failed to return to work due to transportation problems. 

The ULJ determined that Pan-O-Gold “discharged Delk because it believed Delk lied 

about his reasons for not returning to work and because he was a no call/no show on 

January 2 and 4” and that Delk is ineligible for unemployment benefits because he was 

discharged for employment misconduct. Upon reconsideration, the ULJ affirmed the 

decision. This certiorari appeal follows. 

D E C I S I O N

We review a ULJ’s decision to determine whether a party’s substantial rights were 

prejudiced because the findings, inferences, conclusion, or decision are unsupported by 

substantial evidence in view of the record as a whole or affected by an error of law. 

Minn. Stat. § 268.105, subd. 7(d) (2014). An employee who was discharged is eligible 

for unemployment benefits unless the discharge was for employment misconduct. Minn. 

Stat. § 268.095, subd. 4(1) (2014). “Employment misconduct” is “any intentional, 

negligent, or indifferent conduct, on the job or off the job that displays clearly: (1) a 

serious violation of the standards of behavior the employer has the right to reasonably 
4

expect of the employee; or (2) a substantial lack of concern for the employment.” Id., 

subd. 6(a) (2014). Whether an employee engaged in employment misconduct presents a 

mixed question of law and fact. Skarhus v. Davanni’s Inc., 721 N.W.2d 340, 344 (Minn. 

App. 2006). “Whether the employee committed a particular act is a question of fact.” Id. 

Whether that act constitutes employment misconduct is a question of law, which we 

review de novo. Stagg v. Vintage Place Inc., 796 N.W.2d 312, 315 (Minn. 2011).

I.

Delk argues that the ULJ’s factual findings that (1) Delk agreed that he would 

return to work from medical leave on January 2, (2) Delk knew or should have known 

that he was scheduled to work on January 2 and 4, and (3) transportation problems 

hindered Delk’s return are unsupported by substantial evidence. Substantial evidence is 

“(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). “We 

view the ULJ’s factual findings in the light most favorable to the decision . . . .” Skarhus, 

721 N.W.2d at 344. 

Delk and Pan-O-Gold’s human resources director contradicted each other’s 

testimony on whether Delk agreed to return to work on January 2 and whether Delk knew 

or should have known that he was scheduled to work on January 2 and 4. There was no 

other direct evidence on these questions. The ULJ credited the human resources 

director’s testimony, finding that “[i]t is believable that Delk originally agreed to return 
5

to work on January 2” and that the employer’s testimony was “credible because it was 

persuasive, reasonable, and described a more plausible sequence of events.” The ULJ 

found that the employer’s version was consistent with the date change on the nurse 

practitioner’s note and with Delk’s testimony about transportation problems.

Delk testified that although he had asked to return to work in January and was 

cleared to return to work as of December 31, he expected a supervisor to call him to 

inform him of his schedule. But he also testified that on January 6, he asked his nurse 

practitioner to alter his medical clearance statement because he had experienced 

transportation problems. The human resources director testified that Delk had told him in 

late November or early December that he would return to work on January 2 and that 

Delk knew that it was his responsibility to confirm his schedule. Specifically, he 

testified:

Every . . . employee is to check their own schedule. He was 

told to check when his schedule was. . . . We have 1200 

employees in this company. . . . The policy here is that the 

employee, if they’ve been out of work, they check their own 

schedule. They either call down here or they show up here 

and check that schedule and he was told to do that. 

The ULJ noted that her findings were “based in large part on the employer’s 

testimony which was credible.” The ULJ implicitly discredited Delk’s testimony that he 

had missed work because no one called to inform him of his schedule. Credibility 

therefore had a significant impact on the ULJ’s decision. See Wichmann v. Travalia & 

U.S. Directives, Inc., 729 N.W.2d 23, 29 (Minn. App. 2007) (concluding that credibility 
6

has a significant effect on the decision when the ULJ’s misconduct determination rests on 

disputed testimony).

We defer to the ULJ’s credibility determinations when (1) the ULJ sets forth a 

valid reason for crediting or discrediting testimony that may significantly affect the 

ultimate decision and (2) the determinations are supported by substantial evidence. 

Ywswf v. Teleplan Wireless Servs., Inc., 726 N.W.2d 525, 531-33 (Minn. App. 2007); see 

also Minn. Stat. § 268.105, subd. 1a(a) (2014)1(providing that the ULJ “must set out the 

reason for crediting or discrediting that testimony” when the witness’s credibility “has a 

significant effect on the outcome of a decision”). Delk argues that neither prerequisite to 

deference is satisfied, and therefore we must reverse, or at least remand. We disagree.

The ULJ credited the human resources director’s testimony by weighing its plausibility in 

light of the other evidence presented and evaluating its reasonableness.2 See Ywswf, 726 

N.W.2d at 533 (providing that a comparison of testimony to other evidence is a 

permissible factor in evaluating credibility). Although we encourage a more thorough 

explanation of the reasons for crediting or discrediting a witness’s testimony, in the 

context of this record we are satisfied that the ULJ’s explanation is sufficient. 

 

1

The 2014 legislation recodified subdivision 1a(a) and merely clarified its language and 

therefore applies to pending litigation. See Braylock v. Jesson, 819 N.W.2d 585, 588

(Minn. 2012) (“When the Legislature merely clarified preexisting law, the amended

statute applies to all future or pending litigation.”). 

2

 Notably, the ULJ did not credit all of the human resources director’s testimony. After 

considering documentary exhibits, the ULJ rejected as speculation his testimony that 

Delk could have returned to work on December 1, 2013, but was fulfilling other 

obligations in December. 
7

Based on the testimony of the human resources director, Delk’s acknowledgment 

that he had asked to come back to work in January and was cleared to return as of

December 31, his testimony that he told his nurse practitioner that he was experiencing 

transportation problems—which was at odds with his testimony that he had missed shifts 

due to lack of notice—and his effort to alter the medical clearance date on the statement, 

we conclude that the ULJ’s reasons for her credibility determinations are supported by 

the record. Because the ULJ gave reasons for her credibility determinations and they are 

supported by the record, there is no basis to overturn the credibility determinations.

Giving deference to the ULJ’s credibility determinations, there is substantial 

evidence in the record to support the findings that Delk agreed to return to work on 

January 2, that he knew or should have known that he was scheduled to work on January 

2 and 4, and that Delk did not return to work due to transportation problems. Viewing 

the factual findings in the light most favorable to the decision, the factual findings are 

supported by substantial evidence in view of the record as a whole. “[T]his court will not 

disturb the ULJ’s factual findings when the evidence substantially sustains them.” 

Peterson v. Nw. Airlines Inc., 753 N.W.2d 771, 774 (Minn. App. 2008), review denied

(Minn. Oct. 1, 2008). Thus, the ULJ’s factual findings will not be disturbed. 

II.

Delk argues that the ULJ erred in determining that his conduct constituted 

employment misconduct because his absences were the result of good-faith error, 

miscommunication, and confusion regarding the FMLA policy. But because we uphold 

the ULJ’s findings that Delk agreed to return to work on January 2, knew or should have 
8

known that he was scheduled to work on January 2 and 4, and missed work due to 

transportation problems, we cannot conclude that his absences were the result of goodfaith error, miscommunication, or confusion regarding the FMLA policy. 

Delk also argues that his two absences should be viewed as a single incident. If 

the basis for the discharge “involved only a single incident, that is an important fact that 

must be considered.” Minn. Stat. § 268.095, subd. 6(d) (2014). But Delk cites no 

authority in support of his argument that missing work twice is a single incident. And 

generally, a single unexcused absence from work may constitute a serious violation of the 

standards an employer has the right to reasonably expect, unless the absence was “beyond 

the employee’s control and did not display a disregard for employment.” Hanson v. 

Crestliner Inc., 772 N.W.2d 539, 542-43 (Minn. App. 2009); see also Del Dee Foods, 

Inc. v. Miller, 390 N.W.2d 415, 417-18 (Minn. App. 1986) (discussing several Minnesota 

cases that have held that a single absence may constitute misconduct). 

Even if Delk’s absences were characterized as a single incident, under the facts 

found by the ULJ, this single incident would qualify as misconduct. See Hanson, 772 

N.W.2d at 543; see also Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 806 (Minn. 

2002) (“A single incident can constitute misconduct when an employee deliberately 

chooses a course of conduct that is adverse to the employer.”). The ULJ’s factual 

findings do not support a conclusion that Delk’s absences were beyond his control or that 

he did not display a disregard for employment. 

Failure to return to work after a medical leave ends may also demonstrate an 

employee’s “substantial lack of concern” for the job and be characterized as disqualifying 
9

misconduct. See Fresonke v. St. Mary’s Hosp., 363 N.W.2d 328, 330 (Minn. App. 1985)

(interpreting 1983 version of the statute). And “[d]ishonesty that is connected with 

employment may constitute misconduct.” Baron v. Lens Crafters, Inc., 514 N.W.2d 305, 

307-08 (Minn. App. 1994); see also Skarhus, 721 N.W.2d at 342, 344 (concluding that 

employee’s theft of an order of cheese bread and extra meat constituted disqualifying 

misconduct because it undermined the employer’s ability to assign essential job functions 

to her). The ULJ found that Pan-O-Gold discharged Delk in part because human 

resources personnel believed he had lied about the reasons for failing to return after his 

leave ended, and the record supports this finding. 

“A good faith misunderstanding of the employer’s rules or policies does not 

constitute misconduct.” Tuckerman Optical Corp. v. Thoeny, 407 N.W.2d 491, 493 

(Minn. App. 1987). But the ULJ found that Delk knew or should have known that he was 

supposed to be at work and did not report due to transportation problems. There was no 

misunderstanding. We conclude that the ULJ did not err in determining that “Delk’s 

conduct was a serious violation of standards of behavior the employer had a right to 

reasonably expect and showed a substantial lack of concern for his employment,” and 

that he is ineligible for unemployment benefits because he committed employment 

misconduct. 

Affirmed.