Helen Brown, Relator,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1831

Helen Brown,
Relator,

vs.

PDR Administrative Services, Inc.,
Respondent,

Department of Employment and Economic Development,
Respondent.

Filed June 5, 2017
Affirmed
Larkin, Judge
Dissenting, Randall, Judge

Department of Employment & Economic Development
File No. 34881080-3

Helen Brown, Minneapolis, Minnesota (pro se relator)

PDR Administrative Services, Inc., Edina, Minnesota (respondent)

Lee B. Nelson, Minnesota Department of Employmen t and Economic Development,
St. Paul, Minnesota (respondent department)

 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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Considered and decided by Connolly, Presiding Judge; Larkin, Judge; and Randall,
Judge.
U N P U B L I S H E D O P I N I O N
LARKIN, Judge
Pro se r elator challenges an unemployment -law judge’s determination that she is
ineligible for unemployment benefits because her employment was terminated for
employment misconduct. We affirm.
FACTS
Relator Helen Brown was employed as a medical receptionist for respondent PDR
Administrative Services (PDR) from September 2015 throu gh August 9, 2016. PDR
terminated Brown’s employment based on her absenteeism.
Respondent Minnesota Department of Employment and Economic Development
(DEED) determined that Brown w as discharged for employment misconduct and denied
Brown’s application for unemployment benefits . Brown appealed the determination. An
unemployment-law judge (ULJ) conducted an evidentiary hearing . Brown testified at the
hearing, but PDR did not participate.
Brown testified that she was sched uled to work 40 hours per week and that PDR
had a strict policy of not allowing employees to take “time off without PTO time.” Brown
further testified that in February 2016, following an unexcused absence, PDR warned her
that her attendance was unacceptable to PDR . Bro wn reported in her unemployment -
insurance-request questionnaire that she was told that she could not have any other
unexcused absences. At the hearing before the ULJ , Brown admitted that , on August 7,
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she was arrested and incarcerated after she hit her husband multiple times following an
argument, and that she was unable to report to work on August 8 because she was in jail.
Brown testified that she did not have PTO time to cover that absence and that her supervisor
told her that she was discharged from her employment based on her absenteeism.
The ULJ found that PDR discharged Brown due to her attendance issues. The ULJ
concluded that her absence from work due to incarceration constituted employment
misconduct, reasoning that “Brown knew that she could be discharged if she had another
unexcused absence from work and she should have known that physically assaulting her
husband could cause her to get arrested and go to jail. ” Brown requested reconsideration,
and the ULJ affirmed his decision. Brown appeals by writ of certiorari.
D E C I S I O N
An employee who is discharged for employment misconduct is ineligible to receive
unemployment benefits. Minn. Stat. § 268.095, subd. 4(1) (2016). “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 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) (2016). “As a general rule, r efusing
to abide by an employer’ s reasonable policies and requests amounts to disqualifying
misconduct.” Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).
“An employer has the right to establish and enforce reasonable rules governing
absences from work.” Wichmann v. Travalia & U.S. Directives, Inc. , 729 N.W.2d 23, 28
(Minn. App. 2007 ). An employee who fails to follow an employ er’s absenteeism and
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tardiness polic ies violates the standards of behavior that an employer has the right to
reasonably expect from an employee, and, therefore commits employment misconduct.
Stagg v. Vintage Place Inc., 796 N.W.2d 312, 317 (Minn. 2011); see also Winkler v. Park
Refuse Serv., Inc., 361 N.W.2d 120, 124 (Minn. App. 1985) (stating that absence from
work under circumstances within the control of the employee can constitute employment
misconduct).
Whether an employee committed employment misc onduct is a mixed question of
fact and law. Schmidgall, 644 N.W.2d at 804. “Whether the employee committed a
particular act is a question of fact.” Skarhus v. Davanni’s Inc. , 721 N.W.2d 340, 344
(Minn. App. 2006). This court views the ULJ’s factual findings in the light most favorable
to the decision and will not disturb those findings when they are supported by substantial
evidence. Id. Whether a particular act constitute s employment misconduct is a question
of law, which this court reviews de novo. Stagg, 796 N.W.2d at 315.
The crux of Brown’s argument for reversal is that her “previous employer provided
signed documents stating that [her] separation from Physician’s Dia gnostics &
Rehabilitation Clinics was not due to misconduct, and they are not contesting
unemployment benefits.” For the reasons that follow, Brown’s reliance on PDR’s opinion
that she was not discharged for employment misconduct is unavailing.
DEED “has the responsibility for the proper payment of unemployment benefits
regardless of the level of interest or participation by an applicant or an employer in any
determination on appeal.” Minn. Stat. § 268.069, subd. 2 (2016). An employer does not
have a burden to submit evidence to show that it terminated an employee for misconduct
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and is not required to participate in a benefits hearing. Minn. Stat. § 268.101, subd. 2(c)
(2016) (providing that “an issue of ineligibility is determined based upon that information
required of an applicant, any information that may be obtained from an applicant or
employer, and information from any source” (emphasis added)); Wilson v. Mortg. Res.
Ctr., Inc., 888 N.W.2d 452, 461 n.12 ( Minn. 2016). And “[a]ny agreement between an
applicant and an employer is not binding on [DEED] in determi ning an applicant’s
entitlement” to unemployment benefits. Minn. Stat. § 268.069, subd. 2. Thus, an
employer’s failure to challenge an employee’s request for unemployment benefits has “no
bearing on whether or not the benefits are paid.” Rasidescu v. Comm’r of Econ. Sec., 644
N.W.2d 504, 506 (Minn. App. 2002), review denied (Minn. July 16, 2002).
In Jenkins v. Am. Express Fin. Grp. , the supreme court held that “[a]bsence from
work due to incarceration is not misconduct that will disqualify an employee on a per se
basis from establishing eligibility for the receipt of unemployment compensation.” 721
N.W.2d 286, 287 (Minn. 2006). 1 In Jenkins, the employee was convicted of assault and
sentenced to 30 days in jail with work-release privileges. Id. at 288. Before the employee
started her sentence, her employer told her that the employer would cooperate with her
work-release privileges and provide verification of her employment to the jail. Id. The
employer did not verify the employee’s employment, despite the employee’s repeated
attempts to contact the employer, and the employee was unable to report to work. Id. The

1 Although Brown does not challenge the ULJ’s findings in support of the eligibility
determination or argue that her actions did not constitute employment misconduct, we
briefly address this issue.

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employer discharged the employee based on absenteeism. Id. The supreme court held that
under those facts, the employee’s absence from work was not misconduct disqualifying her
from receiving unemployment benefits. Id. at 292-93. But the supreme court noted that
“[a]bsence from work under circumstances within the control of the employee, including
incarceration following a conviction for a crime, has been determined to be misconduct
sufficient to deny benefits.” Id. at 290.
This case is distin guishable from Jenkins. As the ULJ reasoned, PDR warned
Brown that she could not have another unexcused absence and Brown should have known
that physically assaulting her husband could cause her to be arrested, go to jail, and miss
work. Brown ’s unexcused absence from work caused by her incarceration was due to
circumstances under her control . It also violated PDR’s reasonable attendance and PTO
policies and demonstrated a substantial lack of concern for employment. The ULJ
therefore did not err by concluding that Brown was discharged for employment misconduct
and that she is ineligible for unemployment benefits.
Affirmed.
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RANDALL, Judge (dissenting)
The majority concludes that the unemployment -law judge (ULJ) did not err by
finding Brown was discharged for misconduct. I disagree for several reasons. First,
Brown’s employer specifically stated in the record that she was not disch arged for
misconduct. Second, the ULJ used faulty reasoning in concluding that Brown, who caught
her cheating spouse and hit him, should have had the presence of mind to anticipate that
the police would arrest her for simple assault, ignore her husband, a nd put her in jail,
causing her to miss work. Third, the ULJ completely ignored the specific wording of the
controlling statute, which provides exceptions to the general definition of employment
misconduct. Minn. Stat. § 268.095, subd. 6(b) (2016).
The unemployment ineligibility statute presumes that an employee who is
discharged from employment is eligible for unemployment benefits unless the discharge
was for employment misconduct. Id., subd. 4(1) (2016) (stating an applicant “is ineligible
for a ll unemployment benefits . . . if: (1) the applicant was discharged because of
employment misconduct as defined in subdivision 6”). As defined in subdivision 6,
employment misconduct, in part, “means any intentional, negligent, or indifferent conduct,
on the job or off the job that displays clearly . . . a substantial lack of concern for the
employment.” Id., subd. 6(a)(2) (2016) (emphasis added). Disqualification provisions are
narrowly construed. Smith v. Emp’rs Overload Co. , 314 N.W.2d 220, 222 (Minn .
1981). Whether the employee committed a particular act is a fact question, but whether
the act constitutes employment misconduct is a question of law we review de novo.
Skarhus v. Davanni’s Inc. , 721 N.W.2d 340, 344 (Minn. App. 2006). I conclude that the
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facts of this case do not show a “substantial lack of concern for the employment.” Minn.
Stat. § 268.095, subd. 6(a)(2).
The facts concerning the reason for Brown’s absence are not disputed. Brown was
employed as a medical receptionist. Brown missed work in February 2016 to take her
daughter to the doctor, for which she received a verbal warning. Brown missed work again
when she was arrested after assaulting her philandering husband. Brown was arrested on
August 7, 2016, and she notified her employ er.2 She missed work on August 8 and 9
because she was in jail.
Her employment was terminated on August 10, 2016. After she was released from
jail on August 9, her employer told her not to come in to work that day, but to wait to gather
her composure . The employer’s response is totally incompatible with intentional
misconduct. The only issue is whether her absence was the result of negligent or indifferent
conduct displaying a substantial lack of concern for the employment.
Brown argues that she should not have been denied benefits because her employer
submitted signed documents stating that Brown was not discharged for employment
misconduct. The majority rejects Brown’s argument, noting that an employer’s failure to
challenge eligibility for ben efits has no bearing on whether benefits are paid, because
unemployment is paid from state funds. Rasidescu v. Comm’r of Econ. Sec., 644 N.W.2d
504, 506 (Minn. App. 2002), review denied (Minn. July 16, 2002).3 In reality, this cannot

2 According to Brown’s testimony, she has not been charged with any crime for her
conduct.
3 That is not true. It should not be used as an argument to ignore t he employer’s view of
what happened. Once eligibility for unemployment compensation has been determined,
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be taken literally. The appellate courts do not take it literally. The average case that comes
to our court, and sometimes goes to the supreme court, involves an appeal of a denial of
benefits when the employer objects to the payment of benefits and produces evidence that
the employee committed willful misconduct. If that evidence is credible, the ULJ relies on
it and cites it in the opinion to deny benefits. If that evidence is found credible by the
Minnesota Court of Appeals, that evidence is cited to support an affirman ce of the ULJ,
and the same thing happens if our supreme court brings it up. Both courts rely on “the
credible evidence” and detail it to support the finding of misconduct. Therefore, you have
a total lack of due process, and a total lack of common sense , when you do not weigh as
credible evidence a signed unequivocal statement by the employer that the employee was
not discharged for misconduct. The employer affirmatively stated in two documents that
Brown was not discharged for misconduct. In my view, that determination should count
for something.
Instead, the ULJ concluded that Brown was ineligible for unemployment benefits
because her conduct in assaulting her husband “displayed clearly a substantial lack of
concern for the employment.” The ULJ dete rmined that Brown knew that she could be
discharged for another unexcused absence from work and “should have known that

the state does send out regular checks until the benefits are exhausted or the recipient goes
back to work. But unemployment benefits are paid from a fund that is funded by
employers. Employers pay a percentage of their payroll in unemployment-insurance taxes
and their loss history affects the amount of tax they pay. See Minn. Stat. §§ 268.051, .047
(2016). That is why employers who terminate an emp loyee and who feel it was for
misconduct come into court, present evidence, and fight the payment of benefits, so they
can avoid the increase in their tax rate. See Minn. Stat. § 268.047, subd. 1 (discussing use
of past unemployment benefits paid to compute an employer’s future tax rate).
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physically assaulting her husband could cause her to get arrested and go to jail,” and,
therefore, miss work. This is a total stretch a nd defies the reality of couples. When one
spouse catches another cheating, the wronged spouse does not sit down and have the
following rational discussion in his or her mind: “Before I whale on this jerk, I have to
understand that he or someone might call the police, and that the police will come, and that
they will ignore him, but arrest me and take me to jail and confine me for two days, and
thus I will miss work!” The facts of this case indicate that Brown “was not thinking about”
the impact her acti ons would have on her employment when she reacted to seeing her
husband cheating on her with another woman. See State v. Boyce , 284 Minn. 242, 254,
170 N.W.2d 104, 112 (1969) (discussing heat of passion provoked by conduct which
“would provoke a person of ordinary self-control under like circumstances”).
The ULJ appears to rely solely on the fact that Brown was in jail for an assault as
evidence of misconduct. Again, that is not the law. The supreme court has held that a
criminal act resulting in jail ti me is not misconduct as a matter of law under subdivision
6(a)(2). Jenkins v. Am. Express Fin. Grp. , 721 N.W.2d 286, 291 (Minn. 2006). Instead,
this is a fact-based inquiry, requiring the ULJ to “focus on the facts in this particular case
as to whether [an appellant’s] misconduct was established by evidence that demonstrates a
substantial lack of concern for her employment.” Id. Committing a crime resulting in
incarceration may be evidence that an employee lacked concern for her employment, but
where the record establishes the employee “made diligent efforts to report to work,”
including informing her employer of her conviction a nd attempting to arrange work -
release, the “conduct does not demonstrate a substantial lack of concern for her
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employment.” Id. at 292. The facts here are only slightly different from Jenkins, as noted
by the majority. Like Jenkins, Brown was forthcomin g about her arrest and notified her
employer that she was in jail and would have to miss work. The record shows that not only
did the employer not find misconduct nor terminate her on the spot, but told her to take a
day off and compose herself. That is not compatible in any way with the employer
terminating her for misconduct. Brown’s efforts to notify her employer of the reason for
her absence show a concern for her employment, not a substantial lack of concern as the
ULJ determined.
Most importantly, the ULJ failed to consider the applicable statutory exceptions to
the definitions of misconduct. Some such exceptions include “ simple unsatisfactory
conduct,” and “absence, with proper notice to the employer, in order to provide necessary
care because of the illness, injury, or disability of an immediate family member of the
applicant.” Minn. Stat. § 268.095, subd. 6(b)(3), (8) (2016). Brown’s conduct fits both of
these exceptions, particularly subdivision 6(b)(3).
This is what I suspect happened. B rown was a marginal employee. Her employer
continued to employ her, but with the appropriate warnings about absenteeism. When this
incident with her husband happened, they deliberately did not fire her on the spot for
misconduct, but simply told her to take a day off to compose herself. During that time, the
employer and human resources staffed Brown’s history of employment. They made a
decision that they were not going to carry her any farther. They terminated her. Brown
was an at -will employee, and employers do not need any reason to terminate an at -will
employee. The employer not only gave no reason on the record as to why Brown was
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terminated, but rather made it a point to say she was not terminated for misconduct. Her
employer understood that sh e likely needed a job and her paycheck, and that her spouse
was not a reliable provider. They knew by letting her go, as an at-will employee, she could
collect unemployment benefits and at least have rent and food money between jobs. Thus,
she was let go for her unsatisfactory conduct.
There was absolutely no reason for the ULJ to manufacture out of whole cloth an
indefensible reasoning, to me, meaning, “Brown should have anticipated the entire chain
of events when she first found her husband cheating!” This is not a case where the judiciary
should step in and take benefits away from an employee.
The statute also provides that “[i]f the conduct for which the applicant was
discharged involved only a single incident, that is an important fact that must be considered
in deciding whether the conduct rises to the level of employment misconduct[.]” Id., subd.
6(d). Brown’s first absence was to care for an ill family member, so that absence does not
count against her. Id., subd. 6(b)(8). Brown’s absence for being in jail is, therefore, a
single incident. “A single incident can constitute misconduct when an employee
deliberately chooses a course of conduct that is adverse to the employer.” Schmidgall v.
FilmTec Corp., 644 N.W.2d 801, 806 (Minn. 2002) (emphasis added). There was nothing
deliberate about Brown’s emotional response to catching her husband of ten years cheating
on her.
The ULJ’s finding of misconduct is not reasonably supported by the record. The
ULJ ignored the controlling fact that Brown’s absence from work was a single incident that
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was not the result of deliberate conduct, and that “simple unsatisfactory conduct” is not
employment misconduct as a matter of law. Id., subd. 6(b)(3).
I would reverse and grant appellant her unemployment