Jeremy Tubbs, Relator v. Minnesota Department of Human Services, Department of Employment and Economic Development

This opinion will be unpublished and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 UNPUBLISHED OPINION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.

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 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.”).

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 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.

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 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.

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 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.

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 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,

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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.

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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.

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