Daniel A. Vogel, 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This opinion will be unpublished and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
A19-0108

Daniel A. Vogel,
Relator,

vs.

Order of St. Benedict,
Respondent,

Department of Employment and Economic Development,
Respondent.

Filed October 21, 2019
Affirmed in part and reversed in part
Bratvold, Judge

Department of Employment and Economic Development
File No. 36479582-6

Daniel A. Vogel, Avon, Minnesota (pro se relator)

Order of St. Benedict, Collegeville, Minnesota (respondent employer)

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

Considered and decided by Bjorkman, Presiding Judge; Jesson, Judge; and
Bratvold, Judge.
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U N P U B L I S H E D O P I N I O N
BRATVOLD, Judge
In this certiorari appeal, relator challenges the decision of an unemployment-law
judge (ULJ) that he is ineligible for benefits because he was discharged for aggravated
employment misconduct. Relator asserts that his conduct was not misconduct or
aggravated misconduct because he possessed and used marijuana off the job for religious
purposes. We conclude that the record includes substantial evidence of employment
misconduct. But because we also conclude that relator’s off -duty possession and use of
marijuana was not aggravated employment misconduct, we affirm in part and reverse in
part.
FACTS
The following summary is based on the ULJ’s written findings after an evidentiary
hearing. Relator Daniel A. Vogel worked as a forest technician for respondent-employer
Order of St. Benedict (OSB) from November 17, 1995, until his discharge on April 11,
2018. OSB is an “umbrella organization for a variety of religious sub-organizations,”
including St. John’s Abbey, the Liturgical Press, and St. John’s Preparatory School, which
has 300 students in grades six through twelve. OSB covers 3,000 “acres of grounds” in
Collegeville, Stearns County. As a forest technician, Vogel was responsible for wildlife
and timber management, trail maintenance, snow removal, and other grounds-related
activities. When Vogel was hired in 1995, he disclosed on his application that he had been
convicted in 1985 of selling controlled substances, and had served one year in prison.
3
Vogel has used marijuana “most of his adult life,” is not chemically dependent, and
does not use marijuana for medical purposes. For nearly 30 years, Vogel has lived three
miles from OSB on about 30 acres, and has grown marijuana on his land and in his home.
In August 2016, the National Guard Counter Drug Division flew over Vogel’s property
and “observed probable marijuana grows.” In September 2016, law enforcement obtained
a warrant and searched Vogel’s property and discovered: “a) two outdoor grows of
marijuana totaling 84 plants, b) two indoor grows of marijuana totaling 186 plants,
c) 103.58 ounces (6.47 pounds, or, 2,936 grams) of loose marijuana, d) packing materials,
scales, paraphernalia, and other items associated with the cultivation, manufacturing, and
distribution of marijuana, and e) numerous trays of drying marijuana buds.” While
executing the search warrant, law enforcement “came across” an individual, T.H., who
stated that Vogel “would give him marijuana” in exchange for doing outdoor work related
to the “marijuana grows.”
On January 17, 2017, the state charged Vogel with fifth-degree sale of m arijuana
and fifth-degree possession of marijuana. OSB learned about Vogel’s criminal charges in
March 2017. On March 8, 2017, J.J., OSB’s human-resources manager, and B.L., the OSB
treasurer, met with Vogel, who declined to discuss the criminal charges.
J.J. and B.L. met with an employment lawyer, and discussed OSB’s policy, which
provides that: “The unlawful involvement with alcohol or drugs on or off the job is a serious
conduct breach. Each employee has an obligation to advise the employer of any known

4
violations of these requirements. Violations of these requirements will result in disciplinary
action up to and including termination.” B.L. and J.J. decided not to fire Vogel at that time
and “to wait and see” what happened with Vogel’s criminal charges.
Later in March 2018, Vogel pleaded guilty to fifth -degree felony possession of
marijuana. Vogel received a stay of adjudication, and was placed on probation for five
years. On April 11, 2018, B.L. and J.J. met with Vogel, and discharged him. Vogel applied
for unemployment benefits with respondent Department of Employment and Economic
Development (DEED). DEED determined that Vogel was ineligible and Vogel appealed.
A ULJ conducted an evidentiary hearing and J.J. and Vogel provided testimony. J.J.
testified to the facts described above; in addition, J.J. testified that OSB was concerned that
Vogel was growing and distributing drugs close to campus, where minor students lived
during the school year.
Vogel testified and admitted that he grew marijuana at his home and that he had a
prior criminal conviction for selling controlled substances. But Vog el testified that he did
not sell or distribute the marijuana that he grew; instead, Vogel testified that he used the
marijuana for “religious purposes.” Vogel did not provide details about his religious beliefs
but testified that “the plant was given to us by God.” Vogel also testified that he was a good
employee and had received “favorable” reviews.
In June 2018, the ULJ issued a written decision and concluded that Vogel was
ineligible to receive unemployment benefits because he was discharged for employment
misconduct. The ULJ determined that OSB had “the right to reasonably expect that Vogel
not engage in behavior that constitutes a felony; in this case, marijuana possession
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justifying a fifth-degree felony.” The ULJ concluded that Vogel seriously and intentionally
violated these expectations, but determined that the employment misconduct was not
aggravated.
Vogel requested reconsideration and argued that OSB learned of his criminal
charges in March 2017, but did not fire him until April 2018, which made him “wonder
why it took over a year to discharge [him] if this was a serious violation of standards of
behavior the employer has the right to reasonably expect.” Vogel also asserted that he
believed, based on OSB’s mission and values statements, that his “marijuana possession
for religious purposes was [acceptable] behavior and not a serious violation of their
standards.” Vogel also provided more details about his marijuana use as a “religious
belief,” stating that he believed “God gave us marijuana to use in any way we see fit.” The
ULJ granted Vogel’s request for reconsideration, set aside the June decision and findings
of fact, and scheduled a second evidentiary hearing.
A second evidentiary hearing was conducted and J.J. and B.L. both appeared for
OSB. B.L. testified that OSB decided to discharge Vogel because they operated a school
and it would “not make any sense” to employ someone who “plead[ed] guilty to
significant . . . drug[] possession.” B.L. testified that they did not have any evidence that
Vogel had distributed drugs to students, but that such significant drug possession “close to
campus” affected his ability to trust Vogel. B.L. also testified that Vogel violated OSB’s
drug policy. Vogel testified regarding his marijuana grows and usage, the law enforcement
search, and his criminal proceedings. Vogel also testified regarding his religious beliefs

6
and marijuana usage and argued that his marijuana use was part of his religious beliefs and
practices. Vogel again denied that he had sold or distributed the marijuana he grew at his
home.
In October 2018, the ULJ issued a written decision and again determined that Vogel
was ineligible for benefits. The ULJ found that Vogel did not engage in any religious rituals
relating to marijuana, his distribution and possession of marijuana was “not part of [his]
religious beliefs,” and during his criminal proceedings, Vogel did not argue that “his
activity was protected because it was part of his religious beliefs and practices.” The ULJ
thus rejected Vogel’s constitutional argument for two reasons: (1) the large amount of
marijuana in Vogel’s possession at the time of his arrest and T.H.’s statements to officers
made it “more likely than not” that Vogel was selling or distributing marijuana; and
(2) Vogel did not claim that selling or distributing marijuana was a religious belief or
practice. The ULJ concluded that Vogel was discharged for misconduct, the misconduct
was aggravated, and Vogel was, therefore, ineligible to receive benefits.
Vogel again filed a request for reconsideration. On December 14, 2018, the ULJ
affirmed his prior ineligibility decision, but modified the findings of fact and reasons. The
ULJ specifically found that Vogel distributed marijuana to others based on evidence that
his outdoor marijuana plants could yield “a total of 672 ounces (42 pounds). ” The ULJ
reasoned that, based on the “large amount” of marijuana in Vogel’s possession, he “more
7
likely than not” was selling or distributing marijuana.1 The ULJ found that Vogel was “not
credible” when he denied sale or distribution because the amount of “loose marijuana”
found in Vogel’s home by law enforcement amounted to a two- year’s supply for Vogel
and his wife, and Vogel also had items, such as packing materials and scales, that are used
for distribution.
The ULJ also determined that OSB’s testimony was more credible than Vogel’s
testimony because it was “more logical, detailed, and persuasive than Vogel[’s].” The ULJ
found that OSB discharged Vogel because he violated the employer’s drug policy, Vogel’s
behavior was “a violation of trust between Vogel and OSB,” and OSB was concerned about
“the proximity” between Vogel’s home and OSB and the “possibility ” that Vogel “was
selling or distributing marijuana to OSB’s students.” Accordingly, the ULJ concluded that
Vogel was discharged for aggravated employment miscond uct and was ineligible for
benefits. This certiorari appeal follows.

1 The ULJ rejected Vogel’s argument that OSB’s alcohol and drug policy infringed on
Vogel’s religious liberty and found that Vogel’s “sincerely held religious beliefs are not at
issue here.” The ULJ stated that:

The amount Vogel possessed (along with other factors, such as
Vogel’s prior criminal distribution, and [T.H.’s] statement to
police), made it more likely than not Vogel was selling or
distributing marijuana. Vogel did not argue that selling or
distributing marijuana was part of his religious belief.
Likewise, Vogel did not argue that the amount he possessed
was part of his religious beliefs. Vogel provided no evidence
establishing a connection between the practice of his religion
and the substantial amount of marijuana he possessed. Vogel’s
ineligibility for unemployment benefits is based on the
criminal amount of marijuana he possessed, and not his
religious belief.
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D E C I S I O N
I. Substantial evidence supports the ULJ’s decision that Vogel was discharged
for employment misconduct.

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, an
employee generally is ineligible for unemployment benefits if they were “discharged
because of employment misconduct.” Minn. S tat. § 268.095, subd. 4(1) (2018).
Employment misconduct is defined, in part, 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.” Id., subd. 6(a) (2018). This court has
held that “[a]n employee’s refusal to abide by the employer’s reasonable policies ordinarily
constitutes employment misconduct.” Cunningham v. Wal-Mart Assocs., Inc., 809 N.W.2d
231, 235 (Minn. App. 2011).
This court may reverse or modify the ULJ’s decision “if the substantial rights of the
petitioner may have been prejudiced because the findings, inferences , conclusion, or
decision are . . . unsupported by substantial evidence in view of the entire record as
submitted.” See Minn. Stat. § 268.105, subd. 7(d)(5) (2018). “Whether an employee
engaged in employment misconduct presents a mixed question of fact and law.”
Cunningham, 809 N.W.2d at 235. Whether an employee committed a particular act is a
question of fact. Id. We review the ULJ’s findings of fact in the light most favorable to the
9
decision and will not disturb the findings if “there is evidence in the record that reasonably
tends to sustain them.” Stagg, 796 N.W.2d at 315. Whether the factual findings establish
employee misconduct is a question of law, which is reviewed de novo. Cunningham,
809 N.W.2d at 235.
We defer to the ULJ’s credibility determinations when they are supported by
substantial evidence, and when the ULJ sets forth a valid reason for crediting or
discrediting the witness. See Ywswf v. Teleplan Wireless Servs., Inc., 726 N.W.2d 525,
532-33 (Minn. App. 2007); see also Minn. Stat. § 268.105, subd. 1a(a) (2018) (“When the
credibility of a witness testifying in a hearing has a significant effect on the outcome of a
decision, the unemployment law judge must set out the reason for crediting or discrediting
that testimony.”).
On appeal, Vogel asserts the ULJ’s determination that he committed employment
misconduct was not supported by the evidence, and that the denial of unemployment
benefits is a violation of the “freedom-of-conscience clause” in the Minnesota Constitution
because he was discharged for using marijuana in accordance with his religious beliefs.
The Minnesota and United States Constitutions protect the right to free exercise
of religion. U.S. Const. amend. I; Minn. Const. art. I, § 16. “The free exercise of religion
means, first and foremost, the right to believe and profess whatever religious doctrine
one desires.” Emp’t Div., Dep’t of Human Res. of Oregon v. Smith, 494 U.S. 872, 877,
110 S. Ct. 1595, 1599 (1990). 2 The United States Supreme Court has held that a state

2 Smith has been superseded by statute as stated in Holt v. Hobbs, 574 U.S. 352, 135 S. Ct.
853, 859 (2015). While Holt is correct that Congress passed the Religion Freedom
10
cannot deny unemployment benefits to an applicant who is forced to choose between
religious beliefs and employment; such a denial would violate the Free Exercise Clause of
the First Amendment to the United States Constitution. See, e.g., Frazee v. Ill. Dep’t of
Emp’t Sec., 489 U.S. 829, 834-35, 109 S. Ct. 1514, 1517-18 (1989) (holding that applicant
could not be disqualified from receiving unemployment benefits for refusing a position that
would require him to work on Sundays, which was contrary to his religious beliefs).
Additionally, the Minnesota Supreme Court has interpreted the freedom -of-conscience
clause of the Minnesota Constitution to afford even greater protection than the Free
Exercise Clause of the United States Constitution. See State v. Hershberger, 462 N.W.2d
393, 397-98 (Minn. 1990); Minn. Const. art. I, § 16. Generally, an unemployment-benefits
applicant must demonstrate sincerely held religious beliefs to succeed on a free-exercise
theory. See Hill-Murray Fed’n of Teachers v. Hill-Murray High Sch., 487 N.W.2d 857,
865 (Minn. 1992) (providing that a successful free-exercise challenge under the Minnesota
Constitution requires a party to establish, among other things, that state action violated
sincerely held religious beliefs).
Here, the ULJ determined, and DEED argues on appeal, that we need not consider
whether Vogel’s religious beliefs regarding marijuana use were “sincerely held” because
his distribution of marijuana alone supports the misconduct finding. We agree . Vogel
specifically testified that distributing marijuana was not part of his religious belief s or

Restoration Act three years after Smith was decided, Smith nonetheless accurately states
the fundamental principles of free exercise of religion. See In re Kemp, 894 F.3d 900, 907
(8th Cir. 2018) (citing and relying on Smith in its analysis of a free exercise of religion
claim).
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practices. And substantial evidence supports the ULJ’s finding that Vogel had distributed
marijuana. The ULJ expressly found Vogel’s testimony not credible on this point and
we will defer to the ULJ’s credibility determination. See Skarhus v. Davanni’s Inc.,
721 N.W.2d 340, 344 (Minn. App. 2006). Thus, even assuming the sincerity of Vogel’s
testimony that his religious beliefs include using marijuana, the record supports the ULJ’s
determination that Vogel violated state law and OSB’s drug policy by distributing
marijuana, unrelated to his religious practices. Cunningham, 809 N.W.2d at 235 (“An
employee’s refusal to abide by the employer’ s reasonable policies ordinarily constitutes
employment misconduct.”). Accordingly, we affirm the ULJ’s determination that Vogel
was discharged for employment misconduct and is ineligible for unemployment benefits.
Still, Vogel argues that his misconduct did not occur during working hours or at
work, and did not interfere “in any way with his employment” or his “commitment to his
job duties and responsibilities,” thus, it was not employment misconduct. But whether
or not the criminal conduct occurred during working hours is immaterial. Minn.
Stat. § 268.095, subd. 6(a), specifically states “[e]mployment misconduct means any
intentional, negligent, or indifferent conduct, on the job or off the job.” (Emphasis added.)
This statutory language is clear and unambiguous, thus the plain language controls. See
Wilson v. Mortg. Res. Ctr., Inc., 888 N.W.2d 452, 460 (Minn. 2016). Because Vogel
violated OSB’s reasonable expectations when he distributed marijuana in violation of state
law and the employer’s policy , he committed employment misconduct. See Cunningham,
809 N.W.2d at 235.
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II. Substantial evidence does not support the ULJ’s decision that Vogel was
discharged for aggravated employment misconduct.

Vogel also argues that his conduct did not constitute aggravated employment
misconduct. An employee who is discharged because of either “employment misconduct”
or “aggravated employment misconduct” is not eligible for unemployment benefits. Minn.
Stat. § 268.095, subd. 4(1)-(2) (2018). Aggravated employment misconduct is defined as
“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)
(2018). Here, Vogel pleaded guilty to felony fifth-degree possession of marijuana and
received a stay of adjudication.3
We disagree that substantial evidence establishes that Vogel’s misconduct
“substantially interfered with the employment” or had “a significant adverse effect on the
employment.” Id. In its reconsideration decision, the ULJ found that “Vogel’s off the job
illegal acts, and the relatively close proximity of these acts to a vulnerable population that
OSB has responsibility [of] caring for and ensuring the safety of . . . had a significant
adverse impact on the employment.” But the ULJ cites to no record evidence and we can
find no evidence supporting this determination. To the contrary, the record establishes that
Vogel did not use marijuana at work and did not bring marijuana to the work place. In fact,

3 A stay of adjudication “is a procedure whereby the district court, upon a defendant’s
guilty plea or a fact-finder’s determination of guilt, does not adjudicate the defendant guilty
but imposes conditions of probation.” State v. Martin, 849 N.W.2d 99, 102 (Minn. App.
2014) (quotation omitted), review denied (Minn. Sept. 24, 2014). If Vogel successfully
completes probation, he “avoids a criminal conviction.” Id.
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B.L. specifically testified that they did not have any evidence that Vogel had distributed
drugs to students or on campus. B.L. and J.J. also testified that OSB did not have any
issues with Vogel’s conduct at work.
Accordingly, substantial evidence does not support the ULJ’s finding on
reconsideration that Vogel committed aggravated employment misconduct. Thus, we
reverse the ULJ’s determination of aggravated employment misconduct. We nonetheless
affirm the ineligibility determination on the grounds of employment misconduct because
Vogel was discharged for distributing marijuana in violation of OSB’s reasonable policy
and state laws. See Minn. Stat. § 268.095, subd. 4(1) (stating that an employee who is
discharged for employment misconduct is ineligible for all unemployment benefits).
Affirmed in part and reversed in part.