Todd Leuze, 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This opinion will be unpublished and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
A20-0031

Todd Leuze,
Relator,

vs.

Minnesota Valley Alfalfa Producers,
Respondent,

Department of Employment and Economic Development,
Respondent.

Filed August 17, 2020
Affirmed in part and reversed in part
Bratvold, Judge

Department of Employment and Economic Development
File No. 37461274-3

Todd C. Leuze, Watkins, Minnesota (pro se relator)

Minnesota Valley Alfalfa Producers, Raymond, Minnesota (respondent employer)

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

Considered and decided by Bratvold, Presiding Judge; Segal, Chief Judge; and
Bjorkman, 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 determination by an
unemployment-law judge (ULJ) that he is ineligible for benefits because his employer
discharged him for aggravated employment misconduct. Relator argues that the ULJ erred
because the determination lacks substantial evidence, his employer failed to follow its own
discipline policies, and he is protected by a chemical-dependency exception to ineligibility.
Based on substantial evidence in the record supporting the ULJ’s determination that relator
missed two days of work while he was in jail, we conclude that the ULJ did not err in its
determination that relator was discharged for employment misconduct. But because relator
was discharged for absenteeism, we also conclude that he was not discharged for
aggravated employment misconduct. We thus affirm in part and reverse in part.
FACTS
The following summary of the facts is based on the evidence received during the
evidentiary hearing and the ULJ’s written factual findings.
In August 2010, respondent-employer Minnesota Valley Alfalfa Producers
(Minnesota Valley), a producer of alfalfa pellets for agricultural use, hired relator Todd
Leuze to work as a panel operator at its Raymond facility. Leuze worked for Minnesota
Valley until he was discharged on February 26, 2019.
Leuze is “chemically dependent on methamphetamine.” In 2017, Leuze was
convicted of fifth-degree possession of methamphetamine and placed on probation for five
years. Leuze’s probation conditions included that he complete chemical-dependency
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treatment, attend sober support groups, and comply with random drug testing. Leuze
completed treatment and attended support groups two to three times each week. In fall
2018, Leuze relapsed. He was arrested several months later for violating probation after he
tested positive for methamphetamine. Leuze spent two days in jail and missed two days of
work.1
Minnesota Valley discharged Leuze in February 2019. Leuze applied for
unemployment benefits and responde nt Department of Employment and Economic
Development (DEED) determined that he was ineligible. Leuze appealed the initial
determination and requested a hearing before a ULJ.
During an evidentiary hearing held by telephone, the ULJ took testimony from three
witnesses, including Leuze, and received six exhibits. Zayna Eischens, former general
manager of Minnesota Valley, testified for Leuze, and Donn Larson, an operating
consultant, testified for Minnesota Valley. After the hearing, the ULJ issued written
findings of fact and determined that Leuze was ineligible for benefits because Minnesota
Valley discharged him for aggravated employment misconduct. Leuze requested
reconsideration, and the ULJ issued a written order revising and clarifying some factual
findings and reaffirming the ineligibility determination.
This certiorari appeal follows.

1 The state later charged Leuze with felony fifth-degree possession and this charge was
pending at the time of the evidentiary hearing.
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D E C I S I O N
I. The ULJ did not err in its determination that Minnesota Valley discharged
Leuze for employment misconduct.

Under the Minnesota unemployment insurance program, workers who “are
unemployed through no fault of their own” are entitled to benefits in the form of
“temporary partial wage replacement.” Minn. Stat. § 268.03, subd. 1 (2018). When an
employer discharges a worker for “employment misconduct,” the worker is ineligible for
all unemployment benefits. Minn. Stat. § 268.095, subd. 4(1) (2018). E mployment
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.” Id., subd. 6(a)(1)-(2) (2018).
By writ of certiorari, workers deemed ineligible for unemployment benefits may
challenge the ULJ’s decision. Minn. Stat. § 268.105, subd. 7(a) (2018). We may reverse or
modify a ULJ’s ineligibility determination if the worker’s substantial rights “have been
prejudiced” because the ULJ’s “findings, inferences, conclusion, or decision” are, among
other things, “affected by other error of law” or “unsupported by substantial evidence in
view of the entire record as submitted.” Id., subd. 7(d)(4)-(5) (2018).
“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).
“Whether the employee committed a particular act is a question of fact.” Id. And we review
a ULJ’s factual findings “in the light most favorable to the decision,” leaving those findings
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undisturbed “as long as there is evidence in the record that reasonably tends to sustain
them.” Wilson v. Mortg. Res. Ctr., 888 N.W.2d 452, 460 (Minn. 2016) (quoting Stagg v.
Vintage Place Inc. , 796 N.W.2d 312, 315 (Minn. 2011) ). But “[w]hether a particular act
constitutes disqualifying conduct is a question of law we review de novo.” Id.
On appeal, Leuze challenges the ULJ’s determination that Minnesota Valley
discharged him for employment misconduct in three ways. Leuze contends that (A) the
ULJ’s decision lacks substantial evidence; (B) Minnesota Valley failed to follow its own
discipline policy; and (C) the statutory chemical-dependency exception to ineligibility
applies. We address each argument in turn.
A. Lack of substantial evidence
Leuze argues that the record evidence does not support the ULJ’s decision. DEED
argues that the ULJ correctly found that Minnesota Valley reasonably expected Leuze
would report to work as scheduled. DEED also contends that “Leuze seriously violated
[Minnesota Valley]’s reasonable expectations by using and possessing an illegal substance,
resulting in his arrest, time in jail, and absence from work,” and that “Leuze’s conduct was
intentional.” DEED thus maintains that “[t]he ULJ correctly determined that Leuze’s
conduct was employment misconduct.”
To address the parties’ arguments, we determine whether substantial evidence
supports the ULJ’s findings. “Substantial evidence is defined as (1) such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion; (2) more than a
scintilla of evidence; (3) more than some evidence; (4) more than any evidence; or (5) the
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evidence considered in its entirety.” ITW Food Equip. Grp. LLC v. Minn. Plumbing Bd.,
933 N.W.2d 523, 531 (Minn. App. 2019) (quotation omitted).
Here, substantial evidence establishes that law enforcement arrested Leuze in
February 2019 on a probation-violation warrant after he tested positive for
methamphetamine; he was jailed for two days and missed two wor k shifts, after which
Minnesota Valley discharged him because of his absences. Based on this evidence, the ULJ
determined that Leuze “serious[ly] violat[ed]” Minnesota Valley’s reasonable expectations
and his “conduct was intentional, negligent, or indifferent.”
Absenteeism may be employment misconduct. Stagg, 796 N.W.2d at 317
(concluding employee’s violation of employer attendance policy constituted a “serious
violation” of the employer’s reasonable expectations); see also Torgerson v. Goodwill
Indus., Inc., 391 N. W.2d 35, 37 -38 (Minn. App. 1986) (affirming misconduct
determination where relator’s alcohol abuse caused his absence from work). We have held
specifically that “[a]bsence from work due to incarceration for criminal acts is misconduct
sufficient to disqualify an employee from receiving unemployment compensation
benefits.” Smith v. Am. Indian Chem. Dependency Diversion Project , 343 N.W.2d 43, 46
(Minn. App. 1984) (affirming misconduct determination where relator missed work while
incarcerated for unpaid fines); see also Winkler v. Park Refuse Serv., Inc., 361 N. W.2d
120, 123-24 (Minn. App. 1985) (affirming misconduct determination where relator’s
absence from work was because of his arrest).2

2 Cf. Jenkins v. Am. Exp. Fin. Corp., 721 N.W.2d 286, 290-91 (Minn. 2006) (reversing
ULJ’s misconduct determination because employee made diligent efforts to coordinate
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In sum, substantial evidence shows that Leuze was absent from work for two days,
his absences resulted from his arrest for a probation violation, and Minnesota Valley
discharged him for absenteeism. And applicable law supports the ULJ’s determination that
Leuze committed employment misconduct because he violated his employer’s reasonable
expectation that he work as scheduled.
Still, Leuze contends that Minnesota Valley withdrew its objection to his application
for unemployment benefits during the evidentiary hearing. Leuze asserts the ULJ “refused
to let the employer withdraw its contest” and appears to believe that the ULJ should have
deferred to Minnesota Valley ’s position. We find this argument unpersuasive for two
reasons.
First, we disagree that the ULJ “refused” Minnesota Valley’s withdrawal even
though the ULJ’s written decision did not state that Minnesota Valley withdrew its
objection. To be clear, Minnesota Valley is a named party to these proceedings and
expressed its position during the evidentiary hearing. (Minnesota Valley also had a chance
to submit an appellate brief but did not file one.)
Second, Minnesota Valley’s withdrawal is not relevant to the ULJ’s eligibility
determination. DEED is the administrator of unemployment benefits and “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 or appeal.”

work release while incarcerated, employer told employee she could work while she served
her sentence, therefore, substantial evidence did not show employee lacked substantial
concern for employment).
8
Minn. Stat. § 268.069, subd. 2 (2018) (emphasis added). Therefore, the withdrawal of
Minnesota Valley’s objection, while noted, is irrelevant to Leuze’s eligibility for benefits.
B. Minnesota Valley’s discipline policy
Leuze contends that the ULJ erred by not considering that Minnesota Valley has
hired many workers with criminal backgrounds and has reprimanded other employees with
attendance problems related to substance abuse and criminal charges. DEED argues that,
under Minnesota caselaw, an employer’s failure to follow its own discipline practice or
policy is immaterial to whether an employee has committed misconduct.
We agree with DEED. An employer’s selective enforcement of workplace policies
does not provide an employee with a defense to allegations of employment misconduct.
See Sivertson v. Sims Sec., Inc., 390 N.W.2d 868, 871 (Minn. App. 1986) (stating that
employer’s alleged selective enforcement of workplace rules is not a defense to employee
misconduct), review denied (Minn. Aug. 20, 1986); Dean v. Allied Aviation Fueling Co.,
381 N.W.2d 80, 83 (Minn. App. 1986) (explaining violation of workplace rules by other
employees is not a defense to employment misconduct). Similarly, “whether an employer
follows the procedures in its employee manual says nothing about whether the employee
has violated the employer’ s standards of behavior.” Stagg, 796 N.W.2d at 316 (emphasis
added). And, an employer’s “failure to discipline other employees for [similar conduct] is
irrelevant.” Wilson v. Comfort Bus Co., Inc., 491 N.W.2d 908, 912 (Minn. App. 1992),
review denied (Minn. Jan. 15, 1993); see also Dean, 381 N.W.2d at 83.
Leuze points out that Minnesota Valley has a “progressive” discipline policy for
employees struggling with chemical dependency and contends that Minnesota Valley did
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not give him a warning or second chance. Eischens’s testimony supports Leuze’s point
about the discipline policy, which is not mentioned in the ULJ’s written decision. Even so,
we conclude that the ULJ did not err because this evidence is irrelevant to whether Leuze
committed misconduct by violating Minnesota Valley’s reasonable expectation that he
report to work as scheduled. See Stagg, 796 N.W.2d at 316; Sivertson, 390 N.W.2d at 871;
Dean, 381 N.W.2d at 83. Because Minnesota Valley’s discretionary application of its own
workplace policies is irrelevant to Leuze’s eligibility for benefits, his second argument is
unavailing.
C. Chemical-dependency exception
In his brief to this court, Leuze states that he “has never denied his addiction to drugs
while he was employed at [Minnesota Valley], nor did he deny it in his unemployment
hearing.” W e understand Leuze to claim that a statutory exception covers his alleged
employment misconduct. Minnesota Statutes section 268.095, subdivision 6(b)(9) (2018),
provides that an employee’s conduct is not employment misconduct if it “was a
consequence of the [employee’s] chemical dependency, unless the [employee] 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.” (Emphasis added.)
As discussed above, the ULJ found that Leuze is chemically dependent on
methamphetamine, had completed treatment , and had attended support group meetings
“from time to time.” The ULJ also found that Leuze relapsed before the events leading to
his discharge and that his arrest “was a consequence of chemical dependency.” And the
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ULJ found that Leuze “did not go to any” support group meetings after his relapse “and
did not try to do anything else that would help him stop using methamphetamine.” The
ULJ concluded that because Leuze “stopped trying to get help with his chemical
dependency after September 2018, his conduct does not fall within the chemical-
dependency exception.”
Substantial evidence supports the ULJ’s findings that Leuze completed
chemical-dependency treatment and maintained sobriety for a period, but he relapsed in
early fall 2018 after a doctor prescribed opiates following a medical procedure. Leuze
testified that he stopped attending support group meetings before the medical procedure.
There is no other evidence in the record about Leuze trying to control his chemical
dependency after his 2018 relapse.
Based on this record, we conclude that substantial evidence supports the ULJ’s
finding that Leuze failed to make consistent efforts to control his chemical dependency.
Cf. Kalberg v. Park & Recreation Bd. of Minneapolis, 563 N.W.2d 275, 277 (Minn. App.
1997) (applying chemical-dependency exception to relator who maintained consistent
participation in treatment despite absences from work). Thus, the ULJ correctly determined
that the chemical-dependency exception to ineligibility does not apply to Leuze.
In sum, after considering Leuze’s arguments and the record evidence, we conclude
that substantial evidence and applicable law support the ULJ’s determination that Leuze
committed employment misconduct and is therefore ineligible for unemployment benefits.
Therefore, we affirm in part.
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II. The ULJ erred in determining that Leuze committed aggravated misconduct.

Leuze argues that missing two days of work is not aggravated misconduct. DEED
disagrees and asserts that “[t]he ULJ correctly determined that Leuze’s conduct was
aggravated employment misconduct.” DEED argues that Leuze possessed and used
methamphetamine, which amounted to “a gross misdemeanor or felony,” and that his
conduct had a “significant adverse effect” on Minnesota Valley because he missed two
shifts as a result of his arrest.
Aggravated employment misconduct is “any act, on the job or off the job, that would
amount to a gross misdemeanor or felon y 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).3 Here, the ULJ found that Leuze’s drug possession and use “had a
significant adverse effect” on his employment because it “predictably” led to “his arrest
and incarceration” and “caus[ed] him to miss several work shifts.”
We agree with the ULJ that law enforcement arrested Leuze on a
probation-violation warrant for his use of methamphetamine and that possession of
methamphetamine amounts to at least gross- misdemeanor-level conduct. See Minn. Stat.
§ 152.025, subds. 2, 4 (2018) (providing that possession of controlled substances is a crime
subject to gross- misdemeanor or felony penalties, depending on amount and criminal

3 A ULJ’s determination that an employee has committed aggravated e mployment
misconduct carries an added penalty from that given for employment misconduct: “[I]f the
applicant was discharged from employment because of aggravated employment
misconduct, wage credits from that employment are canceled and cannot be used for
purposes of a benefit account.” Minn. Stat. § 268.095, subd. 10(c) (2018); see also Minn.
Stat. § 268.07, subd. 2 (2018).
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history). And we agree with the ULJ that Leuze’s conduct caused his two-day absence from
work and that Leuze’s absence from work may have had a significant adverse effect on
Minnesota Valley.
Yet we find the ULJ’s reasoning problematic. In order “[t]o disqualify a person from
receiving benefits, the [aggravated] misconduct must be the cause of the discharge.”
Hansen v. C.W. Mears, Inc., 486 N.W.2d 776, 780 (Minn. App. 1992) (emphasis added) ,
review denied (Minn. Jul y 16, 1992). In other words, an applicant is ineligible for
unemployment benefits only if “the applicant was discharged because of aggravated
employment misconduct.” Minn. Stat. § 268.095, subd. 4(2) (2018) (emphasis added).
Here, the ULJ found that Minnesota Valley discharged Leuze because he was absent
from work. Larson testified that Minnesota Valley discharged Leuze because of his
absences, and did not know why Leuze was in jail. And there is no evidence in the record
to suggest that Minnesota Valley was privy to any information about Leuze’s incarceration.
Thus, the record evidence shows that Minnesota Valley discharged Leuze because he was
absent, not because he committed conduct amounting to a gross misdemeanor. Because the
ULJ’s aggravated-misconduct determination fails to adhere to the statutory definition of
aggravated employment misconduct, see Minn. Stat. § 268.095, subd. 6a(a)(1), we reverse
the ULJ’s decision in part.
Affirmed in part and reversed in part.