This opinion will be unpublished and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

A15-1380

Mikel Thorstenson,

Respondent,

vs.

Waterford Oil Co., Inc.,

Relator,

Department of Employment and Economic Development,

Respondent.

Filed April 11, 2016

Affirmed

Smith, Tracy, Judge

Department of Employment and Economic Development

File No. 33575864-3

Jason S. Raether, John J. Steffenhagen, Hellmuth & Johnson, PLLC, Edina, Minnesota (for 

relator)

Lee B. Nelson, St. Paul, Minnesota (for respondent Department)

Mikel Thorstenson, Spring Valley, Minnesota (pro se respondent)

Considered and decided by Reyes, Presiding Judge; Ross, Judge; and Smith, Tracy, 

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

SMITH, TRACY, Judge

Relator Waterford Oil Company (Waterford) appeals an unemployment-law judge’s

(ULJ) decision that respondent Mikel Thorstenson did not engage in employment 

misconduct rendering him ineligible for unemployment benefits. Because we conclude 

that the ULJ’s findings are substantially supported by the evidence, the ULJ did not err as 

a matter of law in determining eligibility, and the ULJ conducted a fair hearing, we affirm. 

FACTS

Waterford hired Thorstenson on March 10, 2015, as a fuel-delivery driver. During 

the pre-hire interview, Waterford’s vice president, Mike Lynch, told Thorstenson several 

times that the position required him to drive a nine-speed manual-transmission truck. 

Thorstenson stated that he would have no problem driving the truck because he had driven 

a nine-speed manual at a previous job in early 2015. Thorstenson had the appropriate 

driver’s license and endorsements to drive the truck, but he would have to pass a mandatory 

driver’s safety test for hazardous-material carriers.

After he was hired, Thorstenson underwent training at Waterford. During the 

training period, and while he was a passenger in the truck, Thorstenson fell asleep on a 

number of occasions. He did not fall asleep when he was behind the wheel. Thorstenson 

drove the truck approximately 100 miles during training. 

Alex Wiese, Waterford’s lead driver, rode with Thorstenson during his training and 

came to the conclusion that Thorstenson was not acceptably adept at driving the truck. 

Thorstenson was able to drive the truck but had problems changing gears and driving in 
3

reverse. He also stalled the truck. Waterford believed that Thorstenson would be unable 

to pass the mandatory driver’s safety test for hazardous-material carriers and discharged 

Thorstenson on March 31, 2015. 

Thorstenson then applied and was determined eligible for unemployment benefits. 

Waterford appealed that determination to respondent Minnesota Department of 

Employment and Economic Development (DEED). A ULJ held an evidentiary hearing on 

the issue of whether Thorstenson was discharged for disqualifying misconduct. 

Thorstenson and Waterford appeared without counsel. Waterford maintained that 

Thorstenson made material misrepresentations during his interview and that he slept on the 

job. The ULJ questioned both parties and gave the parties opportunities to question each 

other. 

On June 1, 2015, the ULJ issued a decision, determining that Thorstenson was not 

discharged for misconduct and was therefore eligible for benefits. The ULJ found that 

Thorstenson did not lie about his driving ability but thought that, based on his previous 

experience, he possessed sufficient driving skills. The ULJ further found that Thorstenson 

could drive the truck, just not to Waterford’s expectations. The ULJ found Thorstenson 

credible because his testimony was “consistent, seemed more likely under the 

circumstances and followed a more logical chain of events.” 

Waterford requested reconsideration of the ULJ’s decision, challenging the ULJ’s 

credibility determinations and arguing that the ULJ should have considered Thorstenson’s 

sleeping on the job as a basis for termination. After reconsideration, the ULJ found that 
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Thorstenson’s driving, not his sleeping on the job, was the actual reason for termination 

and affirmed the earlier decision that Thorstenson did not lie about his driving ability. 

Waterford appeals.

D E C I S I O N

Waterford appeals, by petition for a writ of certiorari, the ULJ’s determination that 

Thorstenson did not engage in disqualifying misconduct. We may reverse or modify a 

ULJ’s decision if the relator’s substantial rights may have been prejudiced because, among 

other things, the ULJ’s decision is affected by an error of law or unsupported by substantial 

evidence in view of the entire record. Minn. Stat. § 268.105, subd. 7(d) (Supp. 2015). 

An employee discharged for employment misconduct is ineligible for 

unemployment benefits. Minn. Stat. § 268.095, subd. 4(1) (2014). Whether an employee 

committed employment misconduct presents a mixed question of fact and law. 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. We review a ULJ’s factual findings

“in the light most favorable to the decision” and will not disturb findings that are 

substantially supported by the record. Id. Whether a particular act constitutes disqualifying 

misconduct is a question of law, which we review de novo. Id. We defer to a ULJ’s 

credibility determinations. Id. 

I.

Waterford argues that the ULJ erred in not finding employment misconduct. 

“Employment misconduct means 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 
5

the employer has the right to reasonably expect of the employee; or (2) a substantial lack 

of concern for the employment.” Minn. Stat. § 268.095, subd. 6(a) (2014). Waterford 

argues that Thorstenson engaged in two types of misconduct—sleeping on the job and prehire misrepresentation. 

A. Sleeping on the Job

Waterford argues that the factual finding on reconsideration that Thorstenson fell 

asleep on the job required the legal conclusion of disqualifying misconduct. Misconduct 

that is not the basis for termination, however, is not disqualifying misconduct. See 

Harringer v. AA Portable Truck & Trailer Repair, Inc., 379 N.W.2d 222, 224 (Minn. App. 

1985) (noting that “an employee’s misconduct is irrelevant to a determination of 

unemployment compensation benefits if that conduct was not in fact the reason for the 

employee’s discharge”). 

Here, the ULJ originally found that Thorstenson’s poor driving was the reason for 

discharge. In the order of affirmation, the ULJ acknowledged that Thorstenson fell asleep 

during training but rejected Waterford’s request to consider Thorstenson’s sleeping as the

reason for discharge. “The cause of an employee’s separation is a question of fact.” 

Meehan v. Lull Corp., 466 N.W.2d 14, 16 (Minn. App. 1991), review denied (Minn. 

Apr. 18, 1991). Accordingly, we will not disturb the ULJ’s determination that 

Thorstenson’s driving led to his discharge if the finding is substantially supported by the 

record. See Skarhus, 721 N.W.2d at 344 “Substantial evidence is such relevant evidence 

as a reasonable mind might accept as adequate to support a conclusion, or more than a 
6

scintilla of evidence.” Moore Assocs., LLC v. Comm’r of Econ. Sec., 545 N.W.2d 389, 392 

(Minn. App. 1996) (quotation omitted). 

The ULJ questioned Waterford’s vice president, Lynch, about the reason for 

Thorstenson’s termination:

[ULJ]: In a brief sentence or sentences will you state the reason 

or reasons for the discharge and then we’ll get to testimony 

about that specifically. 

[LYNCH]: Okay, there’s a bunch of different things but the 

primary reason [is] when he was hired he was basically on a 

probationary that he had to pass a federal driver[’]s exam 

before he’s allowed to transport hazardous materials. And 

therefore he could not drive, and therefore I could not pass him 

on the exam and that is why he lost his job. 

. . . .

[LYNCH]: The primary reason, forget about anything else, the 

primary reason for loss of employment [is because] there’s a 

Minnesota statute that I have, he has to pass the driver 

certificate and he can’t do it. 

[ULJ]: I see, so that’s the real reason he was discharged, is that 

correct? 

[Lynch]: Yeah, just stick with that. 

[ULJ]: Okay, then we won’t go into any other reasons, we’ve 

clarified that. 

The timing of the discharge supports the finding that Thorstenson’s driving, not 

sleeping on the job, was the actual reason. The evidence shows that Waterford did not 

immediately discharge Thorstenson when he fell asleep while a passenger during training. 

Rather, Waterford continued Thorstenson’s training, and it was not until after Thorstenson 

was behind the wheel that Waterford decided to terminate his employment.

The record substantially supports the ULJ’s finding that Thorstenson’s driving, not 

sleeping, constituted the reason for discharge. We will not disturb the ULJ’s wellsupported finding. See Skarhus, 721 N.W.2d at 344. Because sleeping on the job was not 
7

the actual reason for termination, we do not address Waterford’s argument that 

Thorstenson’s sleeping as a matter of law would constitute disqualifying misconduct. See 

Harringer, 379 N.W.2d at 224.

B. Pre-Hire Misrepresentation

Waterford contends that Thorstenson made disqualifying material 

misrepresentations during his interview. “A person making a material misrepresentation 

during the hiring process is . . . ineligible for unemployment benefits if he or she is later 

discharged because of the misrepresentation.” Santillana v. Cent. Minn. Council on Aging, 

791 N.W.2d 303, 307 (Minn. App. 2010). Waterford’s argument questions the ULJ’s 

credibility determinations, factual findings about Thorstenson’s pre-hire interview, and 

legal conclusion that Thorstenson’s interview statements did not constitute employment 

misconduct. 

Waterford argues that we should reverse the ULJ’s determination that Thorstenson 

was more credible than Waterford’s representatives. “When the credibility of a witness 

testifying in a hearing has a significant effect on the outcome of a decision, the [ULJ] must 

set out the reason for crediting or discrediting that testimony.” Minn. Stat. § 268.105, subd. 

1a(a) (2014). We defer to a ULJ’s credibility determinations, Skarhus, 721 N.W.2d at 344, 

and will affirm if the ULJ “provide[s] the statutorily required reason for [his] credibility 

determination,” see Ywswf v. Teleplan Wireless Servs., Inc., 726 N.W.2d 525, 533 (Minn. 

App. 2007).

The ULJ found that Thorstenson’s testimony was “consistent, seemed more likely 

under the circumstances and followed a more logical chain of events.” In contrast, the ULJ 
8

found that Waterford’s representatives’ testimony was “inconsistent and appeared to be 

exaggerated and overly misleading.” Accordingly, the ULJ concluded that Waterford’s 

claim that Thorstenson lied during his pre-hire interview was “not credible.” 

Determining credibility in the face of conflicting testimony is “the exclusive 

province of the ULJ.” Skarhus, 721 N.W.2d at 345. We have thoroughly reviewed the 

transcript. The ULJ heard testimony from both parties and noted the inconsistencies and 

exaggerations in the testimony from Waterford’s representatives. We see no reason to 

disturb the ULJ’s credibility determination. See Ywswf, 726 N.W.2d at 533.

Waterford also argues that the ULJ’s factual findings were unsupported by the 

evidence. The ULJ found that Waterford explained several times to Thorstenson that he 

would be driving a nine-speed manual-transmission truck, that Thorstenson “indicated 

[this] . . . would not be an issue for him,” and that Thorstenson “believed that his prior 

[driving experience] was sufficient.” 

As noted above, the ULJ exercised his discretion to discredit Waterford’s claim that 

Thorstenson lied during the pre-hire interview. Moreover, the record substantially supports 

the ULJ’s findings on Thorstenson’s statements. Lynch testified that he asked Thorstenson 

multiple times if Thorstenson could drive a nine-speed manual-transmission truck. 

Thorstenson testified that he told Lynch that he could drive the truck based on his previous 

experience. Lynch felt that Thorstenson had “lied” to him and that Thorstenson “just 

couldn’t drive.” But Wiese later clarified that Thorstenson had driven the truck 

approximately 100 miles during training and had “[s]ome sort” of experience, but that 
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Thorstenson lacked the degree of driving expertise that Waterford expected. We see no 

reason to disturb the ULJ’s findings. See Skarhus, 721 N.W.2d at 344. 

Waterford argues that, as a matter of law, the ULJ should have found a disqualifying 

misrepresentation since the ULJ found that Thorstenson was not able to drive the truck to 

Waterford’s expectations despite his having represented in his interview that he would not 

have an issue driving the truck. Thorstenson may have overestimated the driving skills he 

had developed with his previous employer. His overestimation, however, does not amount 

to a disqualifying misrepresentation of material fact. “[S]imple unsatisfactory conduct” or 

“conduct that was a consequence of the applicant’s inability or incapacity” does not amount 

to disqualifying misconduct. Minn. Stat. § 268.095, subd. 6(b)(3), (5) (2014). The ULJ 

did not err in concluding that, while Thorstenson’s driving failed to live up to Waterford’s 

expectations, he did not engage in disqualifying misconduct in the interview. See id.

II.

Waterford also argues that the ULJ failed to conduct a fair hearing and requests that 

we remand for further proceedings. A ULJ must conduct the hearing “as an evidencegathering inquiry.” Minn. R. 3310.2921 (2015). The ULJ must assist parties with 

presenting their evidence and “must ensure that all relevant facts are clearly and fully 

developed.” Id. But “like all judicial and quasi-judicial fact-gathering endeavors, [the 

hearing] is still adversarial and requires the [ULJ] to maintain neutrality to assure fairness 

to all parties.” Stassen v. Lone Mountain Truck Leasing, LLC, 814 N.W.2d 25, 32 (Minn. 

App. 2012). 
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Waterford contends that the ULJ failed to adequately develop the record about the 

expectations it expressed during Thorstenson’s interview. The ULJ questioned Lynch

about Thorstenson’s pre-hire interview five times, heard Lynch testify that he repeatedly 

explained the importance of driving a nine-speed manual-transmission truck, and made no 

attempt to stop testimony about Thorstenson’s pre-hire interview. Furthermore, the ULJ 

questioned Thorstenson about the interview two times. Based on this questioning, the ULJ 

found that Lynch explained several times to Thorstenson that the job required driving a 

nine-speed manual-transmission truck. Waterford had multiple opportunities to bring any 

of its other expectations to the ULJ’s attention but did not do so. The ULJ adequately 

developed the record on Waterford’s expectations. 

Waterford also argues that the ULJ failed to develop the record on Thorstenson’s 

understanding of his driving ability in relation to Waterford’s expectations. Waterford’s 

argument rests on an incomplete portrayal of the hearing. The ULJ inquired about 

Thorstenson’s previous driving experience and gave Waterford an opportunity to question 

Thorstenson on this point. The ULJ also elicited specific facts and made corresponding 

findings about Thorstenson’s previous driving experience including its length of time, 

temporal proximity, location, that it had been Thorstenson’s first experience driving a ninespeed manual-transmission truck, and that he was able to drive well enough to make 

deliveries for his previous employer. We see no failure to develop the record on 

Thorstenson’s understanding of his driving ability. 

Waterford’s final contention is that the ULJ failed to develop the record regarding 

whether Thorstenson’s sleeping was a factor in Waterford’s termination decision. The ULJ 
11

thoroughly questioned Lynch before concluding that Thorstenson’s driving was the reason

for his termination. Additionally, the ULJ heard testimony from Waterford’s 

representatives and Thorstenson about his sleeping during training, and allowed Waterford 

to question Thorstenson on that point. In the order of affirmation, the ULJ explained that, 

in light of the entire record, sleeping was not the reason for Thorstenson’s termination. The 

ULJ did not fail to develop the record on Thorstenson’s sleeping. 

In sum, the ULJ questioned both parties regarding the relevant issues, gave 

Waterford the opportunity to question Thorstenson, and did not limit the testimony of 

Waterford’s representatives. “The ULJ met [his] obligation to assist [Waterford] without 

losing sight of the neutrality of [his] role.” See id. 

Affirmed.