This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2012).
STATE OF MINNESOTA
IN COURT OF APPEALS
A14-0282
Jeremy Tubbs,
Relator,
vs.
Minnesota Department of Human Services,
Respondent,
Department of Employment and Economic Development,
Respondent.
Filed December 1, 2014
Affirmed
Reyes, Judge
Department of Employment and Economic Development
File No. 31625611-3
Jill K. Baker, Anna G. Fisher, Blethen, Gage & Krause, P.L.L.P., Mankato, Minnesota
(for relator)
Minnesota Department of Human Services, St. Paul, Minnesota (respondent employer)
Lee B. Nelson, Munazza A. Humayun, Minnesota Department of Employment and
Economic Development, St. Paul, Minnesota (for respondent department)
Considered and decided by Reyes, Presiding Judge; Peterson, Judge; and
Reilly, Judge.
UNPUBLISHED OPINION
REYES, Judge
Relator Jeremy Tubbs challenges the determination of the unemployment-law
judge (ULJ) that he is ineligible to receive unemployment benefits because he was
discharged for employment misconduct and aggravated employment misconduct. We
affirm.
FACTS
Tubbs was employed with respondent Minnesota Sex Offender Program (MSOP)
as a security counselor from October 27, 2004, to September 5, 2013. In October of
2011, Tubbs received a warning for violating MSOP’s “Tardiness and Failure to Report
to Work Policy” by missing several days of work following his arrest for driving while
intoxicated in September of 2011. Tubbs was also placed on a one-day unpaid
suspension from work. By letter, MSOP advised Tubbs that any “further performance
issues, policy/procedure violations, and/or engagement in misconduct . . . may result in
further disciplinary action up to and including termination.”
On July 19, 2013, Tubbs called into work sick at approximately 1:30 a.m. Tubbs
was scheduled to work that day starting at 6:00 a.m. Sometime after Tubbs made the
phone call to MSOP, he started drinking alcohol. Approximately twelve hours later,
Tubbs called into work again and informed MSOP he would not be reporting to work the
following day. Tubbs indicated that he may need to be taken off the schedule possibly
into the next week. Shortly after making this call, Tubbs was picked up by North
Mankato police officers pursuant to an “Apprehension and Detention” order (A&D
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Order). Tubbs was in violation of his probation condition prohibiting him from
consuming alcohol. Tubbs’s probation officer Agent Neve had requested the assistance
of police officers to bring Tubbs to Blue Earth County Jail after she was notified that he
had been drinking. The result of Tubbs’s preliminary breathalyzer test (PBT) indicated
an alcohol concentration of .243. Tubbs was transferred to Brown County Detox due to
his level of intoxication.
That same day, at approximately 6:00 p.m., Officer Price from the Mankato
Department of Public Safety was dispatched to a harassment complaint reported by
Tubbs’s ex-girlfriend, D.M. D.M. alleged that at around 3:00 a.m. that morning, Tubbs
entered her home without permission. D.M. told the officer that she eventually was able
to get Tubbs to leave but that he began sending her unwanted text messages. Officer
Price reviewed the text messages and noted that none of the messages were threatening.
Officer Price observed that there were between thirty to fifty text messages from Tubbs to
D.M., and D.M.’s responses to those messages in which D.M. repeatedly requested
Tubbs to stop texting her.
Tubbs remained in detox for two days before he was transferred to Blue Earth
County Jail. While in detox, Tubbs called MSOP Human Resources office to report that
there were criminal charges pending against him pursuant to MSOP’s policy. Tubbs
indicated he did not know whether he would be going to jail or remain in detox. Tubbs
requested either sick leave or a personal leave of absence for an unspecified period of
time.
3
On July 21, 2013, a Notice of Judicial Determination of Probable Cause to Detain
Tubbs was signed based on the events involving D.M. Tubbs was charged by complaint
with felony stalking, gross misdemeanor stalking through mail/delivery of
letter/telegram/package, misdemeanor domestic assault, misdemeanor battery, and
misdemeanor trespass. Tubbs was released from jail after posting bail on July 22, 2013.
On the day that Tubbs was released from jail, Human Resources Director Melissa
Gresczyk sent Tubbs a letter informing him that he was placed on an unauthorized leave
of absence. The letter explained that Tubbs’s July 19 request for sick leave through July
25 was denied because Tubbs’s absence was due to his incarceration and was not
necessitated by virtue of illness as set out in their policy. Tubbs was also informed that
his request for a personal leave of absence was denied for the same reason. Two days
later, MSOP received a fax from a Dr. Leah Breit of the Mankato Clinic indicating Tubbs
needed a medical leave of absence from July 19, 2013 to August 10, 2013. Tubbs was
notified that a tentative medical leave of absence was granted for those dates pending the
outcome of MSOP’s review.
A few weeks later, Tubbs received another letter from MSOP advising him that he
would be placed on an unpaid leave of absence immediately. MSOP explained that on
July 26, the Minnesota Department of Human Services (DHS) notified MSOP that Tubbs
did not pass his background study in accordance with the Minnesota Department of
Human Services Background Study Act, Minn. Stat. §§ 245.01–.34. Specifically, in
order to continue his employment at MSOP, Tubbs was required to pass DHS’s
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background check and retain licensing. Tubbs was placed on this unpaid leave of
absence pending the timeframe for DHS appeals.
On September 5, 2013, Tubbs received a letter of termination of employment. The
letter explained that the reasons for his termination included the unexcused absences on
July 19 and 20, 2013, and his continued absence from work since July 19, 2013. The
letter stated there were “serious criminal charges” pending against Tubbs making him
unable to perform his job as a direct result. MSOP indicated that the violation in 2011
was taken into account when it made its decision.
Following his termination, Tubbs applied for unemployment benefits. The
Minnesota Department of Employment and Economic Development (DEED) issued a
determination of ineligibility and found that Tubbs was discharged for employment
misconduct. Tubbs appealed the determination, and a ULJ conducted an evidentiary
hearing.
On November 6, 2013, the ULJ issued a decision finding that Tubbs’s conduct on
July 19, 2013 “interfered with his ability to perform his job duties and to report to work
on July 20.” The ULJ noted MSOP’s policy prohibiting employees from engaging in any
illegal activities and found that there was sufficient evidence in the record to support the
conclusion that Tubbs had engaged in illegal activity. Moreover, the ULJ found that
Tubbs’s absence on July 20 was a result of him violating his probation conditions. The
ULJ determined that Tubbs was ineligible for unemployment benefits due to employment
misconduct.
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Tubbs filed a request for reconsideration. The ULJ issued an order on January 9,
2014, affirming her decision. The ULJ modified her findings of fact, noting Tubbs’s
diagnosis of chemical dependency in 2010 and Tubbs’s outpatient treatment from June
2013 through August 2013. Nonetheless, the ULJ concluded that Tubbs’s “alcoholism
did not cause him to trespass onto D.M.’s property,” and therefore the exception for
conduct as a consequence of chemical dependency was not applicable. However, the
ULJ did make a finding that Tubbs “did not indicate he was requesting a leave of absence
because he was sick” when he made his second call to MSOP on July 19. The ULJ
modified her decision to additionally find that Tubbs was discharged because of
aggravated employment misconduct. This certiorari appeal followed.
DECISION
When reviewing an unemployment-insurance-benefits decision, this court may
affirm, remand the case for further proceedings, or reverse and modify the decision if the
substantial rights of the relator have been prejudiced because, among other things, the
decision is unsupported by substantial evidence in view of the entire record as submitted.
2014 Minn. Laws, ch. 271, art. 1, § 1, at 1028-29 (to be codified at Minn. Stat. § 268.105,
subd. 7(d) (2014)).1 “Substantial evidence” is the relevant evidence that “a reasonable
mind might accept as adequate to support a conclusion.” Moore Assoc. v. Comm’r of
Econ. Sec., 545 N.W.2d 389, 392 (Minn. App. 1996).
1
See Braylock v. Jesson, 819 N.W.2d 585, 588 (Minn. 2012) (“When the Legislature
merely clarifies preexisting law, the amended statute applies to all future or pending
litigation.”).
6
The purpose of unemployment benefits is to assist those who are unemployed
through no fault of their own. Minn. Stat. § 268.03, subd. 1 (2012). The statute is
remedial in nature and must be applied in favor of awarding benefits, and any provision
precluding receipt of the benefits must be narrowly construed. Minn. Stat. § 268.031,
subd. 2 (2012).
I. The ULJ did not err by determining that Tubbs is ineligible for
unemployment benefits because he was discharged for misconduct.
An employee who was discharged is eligible for unemployment benefits unless the
discharge was for employment misconduct. Minn. Stat. § 268.095, subd. 4(1) (2012).
“Employment misconduct” is defined as “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 expect of the employee; or
(2) a substantial lack of concern for the employment.” 2014 Minn. Laws, ch. 239, art. 2,
§ 5, at 772-73 (to be codified at Minn. Stat. § 268.095, subd. 6(a) (2014)). “Whether an
employee committed employment misconduct is a mixed question of fact and law.”
Skarhus v. Davanni’s Inc., 721 N.W.2d 340, 344 (Minn. App. 2006). Appellate courts
review whether a particular act constitutes disqualifying misconduct de novo. Stagg v.
Vintage Place Inc., 796 N.W.2d 312, 315 (Minn. 2011). But whether the employee
committed misconduct is a fact question. Peterson v. Nw. Airlines Inc., 753 N.W2d 771,
774 (Minn. App. 2008), review denied (Minn. Oct. 1, 2008). This court reviews the
ULJ’s factual findings in the light most favorable to the decision. Stagg, 796 N.W.2d at
315.
7
Tubbs argues that the ULJ erred by denying him unemployment benefits for
reasons other than ones forming the basis for his termination as stated by MSOP. We
disagree. The ULJ’s finding that Tubbs was terminated because of pending criminal
charges, unexcused absences, and the inability to perform his duties as a direct result of
the charges is supported by substantial evidence in the record. Moreover, MSOP
specifically referred to his pending criminal charges and his inability to perform his work
duties as a direct result of those charges in its termination letter to Tubbs.
Tubbs also challenges the ULJ’s finding that he trespassed on the premises of
D.M.’s property. Tubbs argues that the ULJ erroneously relied on hearsay evidence. The
evidentiary standard in an unemployment hearing need not conform to the rules of
evidence, and a ULJ may consider hearsay statements if they are deemed reliable. 2014
Minn. Laws, ch. 251, art. 2, § 15, at 862 (to be codified at Minn. Stat. § 268.105, subd.
1(b) (2014)); 39 Minn. Reg. 147,151,154 (Aug. 4, 2014) (to be codified at Minn. R.
3310.2922 (Supp. 2014)). Moreover, unlike criminal proceedings, a ULJ is permitted to
make factual determinations based on a preponderance of the evidence. Minn. Stat.
§ 268.031, subd. 1 (2012) (stating“[a]ll issues of fact under the Minnesota
Unemployment Insurance Law are determined by a preponderance of the evidence”).
Here, the ULJ relied on charging documents and police reports in making her finding.
The police report and statement of probable cause were based on an interview with a
witness and enumerated observations made by the officer at the scene. The ULJ found
these documents reliable.
8
Additionally, Tubbs did not dispute the allegations against him at the
unemployment hearing. As such, faced with the complaint on one hand and silence on
the other, the ULJ could reasonably infer that the allegations in the complaint were likely
true and that Tubbs likely trespassed on his ex-girlfriend’s property. See 39 Minn. Reg.,
at 154 (to be codified at Minn. R. 3310.2922) (permitting the ULJ to “draw adverse
inferences from the refusal of a witness to testify on the basis of any privilege”). The
ULJ’s finding that Tubbs trespassed on D.M’s property, thereby engaging in illegal
conduct, is supported by substantial evidence in view of the entire record.
As previously stated, “misconduct” includes conduct that displays “a serious
violation of the standards of behavior the employer has the right to reasonably expect of
the employee.” 2014 Minn. Laws, ch. 239, art. 2, § 5, at 772-73 (to be codified at Minn.
Stat. § 268.095, subd. 6(a)(1)). This definition requires an objective determination:
“[W]as the employer’s expectation for the employee reasonable under the
circumstances?” Jenkins v. Am. Exp. Fin. Corp., 721 N.W.2d 286, 290 (Minn. 2006).
The ULJ concluded that MSOP had a reasonable right to expect its employees to refrain
from engaging in criminal activity, and Tubbs’s illegal conduct was a serious violation
constituting misconduct. We agree.
MSOP’s employment policy explicitly states that, “[e]mployees will not engage in
any illegal activities.” This written policy was made known to all of its employees,
including Tubbs. Tubbs was made further aware of this policy in 2011 following his
arrest and conviction. At that time, MSOP could have terminated his employment.
Instead, Tubbs was given another opportunity and a warning that similar conduct could
9
result in his discharge. Moreover, given the nature of Tubbs’s job as a security
counselor, it was reasonable to expect that Tubbs refrain from illegal activities. Tubbs
violated MSOP’s policy when he trespassed on D.M.’s property, which led to the
criminal charges against him.
Tubbs also challenges the ULJ’s finding that his absence on July 20 was a result of
violation of his probation conditions. “Whether an employee’s absenteeism and tardiness
amounts to a serious violation of the standards of behavior an employer has a right to
expect depends on the circumstances of each case.” Stagg, 796 N.W.2d at 316. An
employer has the right to create and enforce reasonable attendance policies, and an
employee’s refusal to abide by these policies is generally employment misconduct.
Wichmann v. Travalia & U.S. Directives, Inc., 729 N.W.2d 23, 28 (Minn. App. 2007).
Here, MSOP had a right to reasonably expect Tubbs to remain law abiding. Tubbs
was taken to detox after he came into contact with police officers pursuant to an A&D
order. The A&D order was issued by Tubbs’s probation officer because Tubbs violated
his probation conditions. Tubbs was unable to report to work on July 20 as a result. The
record supports the ULJ’s finding that Tubbs’s absence on July 20 constitutes
employment misconduct.
Tubbs further argues that he was not “incarcerated” on July 20 within the meaning
of the word in MSOP’s policy. Tubbs’s argument focuses on challenging MSOP’s
contention that Tubbs requested sick leave even though he was incarcerated, in violation
of MSOP’s policy. Tubbs’s argument, focusing on the MSOP policy, is misplaced.
10
The issue in unemployment-benefits proceedings is whether Tubbs’s conduct
constitutes employment misconduct for the purpose of unemployment benefits, not
whether the employer was justified in terminating the employment under its policy.
Brown v. Nat’l Am. Univ., 686 N.W.2d 329, 333 (Minn. App. 2004), review denied
(Minn. Nov. 16, 2004). A former employee may be denied benefits for engaging in
employment misconduct even if the conduct did not warrant termination under the
employer’s policies. Stagg, 796 N.W.2d at 313. Here, it is undeniable that Tubbs made
commendable efforts to remain in contact with MSOP and to comply with their reporting
policies and expectations. However, for purposes of unemployment benefits, Tubbs’s
conduct leading to his inability to report to work on July 20 constituted a violation of the
standards of behavior MSOP had a right to reasonably expect. Specifically, MSOP had a
right to expect that Tubbs would not be absent from work because he was in detox and in
violation of his probation conditions. Tubbs’s absence on July 20 constituted
employment misconduct.
Tubbs asserts that his absence on July 20 was a consequence of his chemical
dependency. See 2014 Minn. Laws, ch. 239, art. 2, § 5, at 772-73 (to be codified at
Minn. Stat. § 268.095, subd. 6(b)(9) (2014)) (stating that employment misconduct does
not include “conduct that was a consequence of the applicant’s chemical dependency,
unless the applicant was previously diagnosed chemically dependent or had treatment for
chemical dependency, and since that diagnosis or treatment has failed to make consistent
efforts to control the chemical dependency”). Tubbs argues that, contrary to the ULJ’s
finding that he was absent on that date because he violated his probation conditions,
11
Tubbs was actually housed in a detoxification facility because of his chemical
dependency.
But adopting Tubbs’s argument that his behavior of missing work was a
“consequence of . . . chemical dependency” would result in an attenuated application of
that statutory provision. Tubbs’s conduct of missing work stemmed from his unexcused
absence, which in turn, stemmed from his act of violating his probation by consuming
alcohol. In addition, the unemployment statutes make clear that behavior relating to DWI
convictions that interferes with a person’s employment does not qualify under the
chemical-dependency exception. See id. (to be codified at Minn. Stat. § 268.095, subd.
6(c) (2014)) (“[R]egardless of [the above subsection], conduct in violation of sections
169A.20, 169A.31, or 169A.50 to 169A.53 that interferes with or adversely affects the
employment is employment misconduct.”). Tubbs’s conduct resulted from a probation
violation following his conviction of DWI under Minn. Stat. § 169A.20 (2012). The
ULJ’s finding is supported by the record.
Tubbs also argues that his absence on July 20 was due to his illness. See id. (to be
codified at Minn. Stat. § 268.095, subd. 6(b)(7) (2014)) (stating that employment
misconduct does not include “absence because of illness or injury of the applicant, with
proper notice to the employer”). Tubbs argues that his level of intoxication presented a
danger to his health and well-being. We find this argument without merit. There is no
precedent supporting an argument that having an alcohol concentration at a level
requiring detoxification constitutes an “illness” under the statute.
12
II. The ULJ did not err by determining that Tubbs is ineligible for
unemployment benefits because he was discharged for aggravated
misconduct.
On reconsideration, the ULJ issued an order modifying her earlier decision to
additionally find that Tubbs was discharged for aggravated employment misconduct. An
employee who is discharged for aggravated employment misconduct is ineligible to
receive unemployment benefits. Minn. Stat. § 268.095, subd. 4(2) (2012). “Aggravated
employment misconduct” is “the commission of any act, on the job or off the job that
would amount to a gross misdemeanor or felony if the act substantially interfered with
the employment or had a significant adverse effect on the employment.” Minn. Stat.
§ 268.095, subd. 6a(a)(1) (2012). Tubbs argues that (1) there is insufficient information
in the record to support the ULJ’s finding that Tubbs engaged in conduct amounting to a
gross misdemeanor or felony; (2) the criminal charges against him did not substantially
interfere with his employment or have a significant adverse effect on the employment;
and (3) the record should be reopened to provide evidence of the ultimate dismissal of the
felony and gross-misdemeanor charges against Tubbs.
The ULJ’s finding that Tubbs was discharged as a result of aggravated
employment misconduct is supported by the record. Unlike the standard of proof in a
criminal proceeding, a ULJ may assess whether the record shows by a preponderance of
the evidence that Tubbs engaged in the commission of an act that amounted to a gross
misdemeanor or felony. Minn. Stat. § 268.031 (2012). Here, the charging documents
and police reports note Officer Price’s observation that Tubbs sent between thirty to fifty
text messages to D.M. in which D.M. repeatedly requested Tubbs to stop texting her. As
13
we discussed earlier, the ULJ found these documents reliable. Thus, there is sufficient
evidence in the record to substantiate the ULJ’s determination that Tubbs engaged in
conduct amounting to a gross misdemeanor or felony.
Tubbs also challenges the ULJ’s finding that his conduct substantially interfered
with his employment or had a significant adverse effect on the employment. Here, it is
undisputed that Tubbs’s conduct resulted in DHS disqualifying him from continuing his
employment at MSOP. MSOP has a right to reasonably expect that its employees would
not be disqualified from their position of employment at MSOP. DHS required Tubbs to
be licensed by DHS in order to perform essential job functions as a security counselor at
MSOP. Tubbs’s conduct directly interfered with this requirement, causing him to
become disqualified by DHS. The ULJ correctly determined that Tubbs was terminated
for aggravated employment misconduct.
Finally, Tubbs requests that the record be supplemented with evidence of the
ultimate dismissal of the felony and gross-misdemeanor charges against him. However,
as discussed above, there is sufficient evidence to support the ULJ’s determination by a
preponderance of the evidence that Tubbs engaged in conduct amounting to a gross
misdemeanor or felony that substantially interfered with his employment. Thus, it is
unlikely that evidence of the dismissal of the criminal charges would change the outcome
of the ULJ’s decision as to a finding of aggravated misconduct. Moreover, Tubbs did not
properly file a motion before this court to do so pursuant to Minnesota Rules of Civil
Appellate Procedure 127. See also Stephens v. Bd. of Regents of Univ. of Minn., 614
N.W.2d 764, 769–70 (Minn. App. 2000), review denied (Minn. Sept. 26, 2000) (denying
14
appellant’s request to supplement the record by brief rather than filing a motion pursuant
to Minn. R. Civ. App. P. 127). We therefore deny Tubbs’s request to supplement the
record.
Affirmed.
15