Donald Thaemert, Relator,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-1160

Donald Thaemert,
Relator,

vs.

Electrolux Home Appliances,
Respondent,
Department of Employment and Economic Development,
Respondent.

Filed April 8, 2019
Affirmed
Reyes, Judge

Department of Employment and Economic Development
File No. 36341426

Donald Thaemert, Sauk Rapids, Minnesota (pro se relator)

Electrolux Home Product s c/o TALX Employer Services, LLC , St. Louis, Missouri (pro
se employer)

Lee B. Nelson, Anne Froelich, Minnesota Department of Employment and Economic
Development, St. Paul, Minnesota (for respondent department)

Considered and decided by Reyes, Presiding Judge; Hooten, Judge; and Cochran,
Judge.

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U N P U B L I S H E D O P I N I O N
REYES, Judge
Relator challenges the determination by an unemployment-law judge (ULJ) that he
does not qualify for unemployment benefits. Because substantial evidence supports the
ULJ’s determination that relator committed employment misconduct, we affirm.
FACTS
Relator Donald Thaemert began working at Respondent Electrolux Home Products
Inc. (Electrolux) in April 2009. He worked on manufacturing freezers in general
production. Electrolux has a policy prohibiting employees from using, or being under the
influence of, illegal drugs while working.
On January 26, 2018, relator showed signs of being under the influence of drugs
while at work. Electrolux gave him a drug test, wh ich came back positive for marijuana.
Electrolux placed relator on an indefinite suspension that day. On February 7, 2018, relator
signed a “last chance agreement” with Electrolux, in which he agreed that, before he would
be allowed to return to work, he must pass a drug test. The agreement also stipulated that,
if relator were to test positive for drugs again while at work, his employment would end.
Relator retested in March, and the results were negative. A few days after he returned to
work, Electrolux again suspected relator to be under the influence and tested him for drugs.
He tested positive, and Electrolux discharged him.
Relator applied for unemployment benefits. Respondent Minnesota Department of
Employment and Economic Development (DEED), after initially paying benefits, issued a
determination of ineligibility , which resulted in an overpayment of benefits . Relator

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appealed. A ULJ held an evidentiary hearing on April 26, 2018. Relator testified at the
hearing that the reason he continued to use marijuana “ was because of my diabetes and,
like I say, I’ve been trying to reach out for prescription .” He also testified that he did not
understand that he was not eligible for benefits and that “ I should not have, have to pay
that back because, you know, I wasn’t informed that I wasn’t eligible through
unemployment or through the company at all.”
On May 1, 2018, the ULJ held that relator was ineligible for unemployment benefits
because he was suspended without pay for an indefinite period of time and under
Minnesota law, he “is considered to have been discharged from employment at that time.”
The ULJ explained that “[relator] had a safety sensitive production position and was aware
of the employer’s expectations regarding drugs. He knowingly used marijuana without a
prescription. [Relator’s] conduct was intentional and he displayed clearly a serious
violation of the employ er’s reasonable expectations regarding drug use. ” This decision
resulted in “an overpayment of unemployment benefits in the amount of $1,715.00.”
Relator requested recons ideration of that decision, and the ULJ affirmed. This
certiorari appeal follows.
D E C I S I O N
Relator argues that he should not have to pay back the overpaid benefits because
respondents misinformed him about whether he was eligible. Relator’s argument is
misguided.
This court reviews a ULJ’s decision to determine if the findings, inferences,
conclusion, or decision are: “(1) in violation of constitutional provisions, (2) in excess of

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the statutory authority or jurisdiction of the department; (3) made upon unlawful procedure;
(4) affected by other error of law; (5) unsupported by substantial evidence in view of the
entire record as submitted; or (6) arbitrary or capricious.” Minn. Stat. § 268.105, subd.
7(d) (2018).
Unemployment benefits are intended to provide financial assistance to persons who
have been discharged from employment “through no fault of their own.” Stagg v. Vintage
Place, Inc., 796 N.W.2d 312, 315 (Minn. 2011) (quotation omitted). Accordingly, a person
who has been discharged from employment based on “employment misconduct” is
ineligible to receive unemployment benefits. Minn. Stat. § 268.095, subd. 4 (2018); Stagg,
796 N.W.2d at 314.
“Whether an employee committed misconduct is a mixed question of fact and law.”
Skarhus v. Davanni’s Inc. , 721 N.W.2d 340, 344 (Minn. App. 2006). Employment
misconduct is “any intentional, negligent, or indifferent conduct” 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) (2018). Whether the employee committed
a specific act is an issue of fact, which this court views in the light most favorable to the
ULJ’s decision. Stagg, 796 N.W.2d at 314. Whether the “act committed by the employee
constitutes misconduct is a question of law, which we review de novo.” Skarhus, 721
N.W.2d at 344.
Relator here does not dispute that he committed employment misconduct. Instead,
he maintains that he “was misinformed as to whether [he] was eligible.” He asserts that,

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because of this, he should not have to pay back the overpaid benefits. However, there is
nothing in the law to support this argument. Whether Electrolux misinformed relator is
immaterial. Minn. Stat. § 268.069, subd. 2 (2018) , states that “[a]ny agreement between
an applicant and an employer is not binding on the commissio ner in determining an
applicant’s entitlement. There is no presumption of entitlement or nonentitlement to
unemployment benefits .” The law further maintains that “[t] here is no equita ble or
common law denial or allowance of unemployment benefits.” Minn. Stat. § 268.069, subd.
3 (2018).
To the extent that relator argues that he was not discharged, but rather indefinitely
suspended, the law also states that “[a] suspension from employment without pay that is of
an indefinite duration or is for more than 30 calendar days is considered a discharge at the
time the suspension begins .” Minn. Stat. § 268.095, subd. 5 (b) (2018). And relator
admitted that Electrolux suspended him in January 2018 for an indefinite period of time.
Here, the ULJ found that relator continued to use marijuana, in violation of
Electrolux’s drug policy. The ULJ further found th at this conduct was intentional and
displayed a serious violation of the emp loyer’s reasonable expectations. As a result, the
ULJ concluded that relator engaged in employment misconduct. The ULJ’s findings and
conclusion are supported by substantial evidence. Therefore, relator must pay back the
overpaid benefits he received during that period.
Affirmed.