Kyle E. Kirchner, Relator,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-0822

Kyle E. Kirchner,
Relator,

vs.

Design Ready Controls,
Respondent,

Department of Employment and Economic Development,
Respondent.

Filed March 14, 2022
Affirmed
Halbrooks, Judge*

Department of Employment and Economic Development
File No. 41544362-3

Kyle E. Kirchner, Robbinsdale, Minnesota (pro se relator)

Design Ready Controls, Brooklyn Park, Minnesota (respondent employer)

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

Considered and decided by Slieter, Presiding Judge; Worke, Judge; and Halbrooks,
Judge.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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NONPRECEDENTIAL OPINION
HALBROOKS, Judge
Relator challenges the decision of an unemployment-law judge (ULJ) that relator
was ineligible for unemployment benefits because he was discharged for the misconduct
of failing to report to work or perform work remotely. Relator asserts that (1) he did not
commit employment misconduct and (2) the ULJ should have accepted evidence that
relator submitted after the hearing. We affirm.
FACTS
In April 2019, relator Kyle E. Kirchner began employment with respondent Design
Ready Controls (DRC) as an engineering test technician. In late March 2020, Kirchner
failed to report to work for three days. Kircher did not contact anyone at DRC to notify
them that he would be absent, despite a DRC policy that required him to do so. After his
third day of missed work, Kirchner emailed his supervisor and requested that he be granted
either a leave of absence or be permitted to work remotely. Kirchner explained that he was
making the request because he was concerned about being exposed to COVID-19 at work
and subsequently exposing his grandfather, who he helped take care of, to the virus.
DRC approved Kirchner’s request to work remotely. On March 31, 2020,
Kirchner’s supervisor sent him an email outlining Kirchner’s responsibilities and
expectations while working remotely. The email stated that, in addition to Kirchner’s
existing job responsibilities and expectations, he would be expected to track and log the
hours he worked and what he had worked on each day using an online form created by his
supervisor. The email also noted that Kirchner was expected to “keep [DRC] informed,”
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particularly in light of the fact that Kirchner had just failed to communicate when he would
be absent, and that if Kirchner planned on taking a day off, then he should let DRC know
in advance and not after the fact.
On May 31, Kirchner contacted his supervisor to inform him that he had gone to the
hospital to receive medical treatment for a cat bite. He did not return home until June 11,
and it was ultimately determined that he would use personal time off for the work time he
missed. DRC expected Kirchner to return to work on June 15, but did not receive any
communication from Kirchner on that day. The following day, Kirchner reported that his
email and VPN were not working and that he could only access the internal messaging
system, Microsoft Teams. DRC asked its IT department to look into the issue, and IT
discovered that after Kirchner logged off of the VPN on June 11, he did not log on again
until June 16. On June 18, DRC contacted Kirchner to verify that his system access had
been restored, but did not get a response. The following morning, DRC attempted to
contact Kirchner several times. His supervisor and a human-resources representative
ultimately reached him around noon, at which point they informed him that he was being
discharged from his employment.
Kirchner applied to receive unemployment benefits from respondent Minnesota
Department of Employment and Economic Development (DEED). DEED issued a
determination that Kirchner was discharged for employment misconduct and was therefore
ineligible to receive unemployment benefits. Kirchner appealed the determination, and a
ULJ held a telephone hearing. At the hearing, Kirchner’s supervisor testified that, as
detailed above, after Kirchner began working remotely there were several instances in
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which DRC did not receive any communication from Kirchner and was unable to contact
him on a workday. In addition, his supervisor and an HR representative testified that,
despite the clear expectation that Kirchner would track and log his hours and work, he
failed to consistently do so, and did not log anything for the days that led to his termination
in June. Kirchner did turn in some work product after his termination, but the documents
related to a previous project.
Kirchner testified that he did not have access to the VPN from June 11 until June
17, and therefore could not access his email during that time frame. He also testified that
he did not have email access on June 18 or 19, but attempted to communicate with DRC
using Microsoft Teams. As to his work log, he testified that he had been logging his
information, but that at some point he and his supervisor decided that it was redundant to
have Kirchner both fill out his log and discuss his work during a weekly call. As a result,
he stopped filling out the log and instead provided the information during the call. Finally,
Kirchner testified that he had notes that reflected what he had been working on, but that he
kept those on his work computer which he did not have access to after his termination.
The ULJ determined that Kirchner was ineligible for unemployment benefit s
because he was discharged for employment misconduct. The ULJ found Kirchner’s
supervisor and the HR representative from DRC to be more credible and indicated that they
“had better records and records that would show what Kirchner accomplished are very
sparse,” that it was “simply too incredible to believe Kirchner has no evidence of work
performed over several days despite an express direction to keep a log,” and that the
documents that Kirchner did turn in following his termination from employment “were not
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for work recently performed.” The ULJ further determined that “[a]n employer can
reasonably expect an employee will perform work when he is supposed to be working, log
work as instructed, and be available while working remotely,” but that Kirchner failed to
do these things for several days, resulting in a serious violation of DRC’s reasonable
expectations that constituted employment misconduct.
Kirchner requested reconsideration on the basis that, following the hearing, he
discovered Microsoft Teams messages from June 10, 16, 17, and 18 that demonstrated that
he was in communication with DRC and provided evidence of the work he completed. 1
The request indicated that he discovered the messages saved on his iPhone. The ULJ
denied the request for reconsideration. The ULJ determined that Kirchner failed to
demonstrate good cause for failing to previously submit the evidence or that any evidence
having an effect on the outcome was likely false. Kirchner appeals by writ of certiorari.
DECISION
When reviewing a ULJ’s eligibility determination, we may affirm, remand for
further proceedings, or reverse or modify the decision if the substantial rights of the relator
have been prejudiced because the findings, inferences, conclusion, or decision are affected
by an error or law or are unsupported by substantial evidence. Minn. Stat. § 268.105,
subd. 7(d) (2020). We review the ULJ’s factual findings in the light most favorable to the
decision and defer to the ULJ’s credibility determinations. Peterson v. Nw. Airlines Inc.,

1 Kirchner did not actually submit copies of the messages; the request for reconsideration
states that he was unable to attach them to his request, and he did not otherwise attempt to
submit copies of the messages. The messages are therefore not part of the record on appeal.
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753 N.W.2d 771, 774 (Minn. App. 2008), rev. denied (Minn. Oct. 1, 2008). We “will not
disturb the ULJ’s factual findings when the evidence substantially sustains them.” Id.
I.
Kirchner argues that the ULJ erred in determining that he was discharged for
employment misconduct. An individual is ineligible for unemployment benefits if “the
applicant was discharged because of employment misconduct.” Minn. Stat. § 268.095,
subd. 4(1) (2020). “Employment misconduct means any intentional, negligent, or
indifferent conduct, on the job or off the job, that is a serious violation of the standards of
behavior the employer has the right to reasonably expect of the employee.” Id., subd. 6(a)
(2020). “As a general rule, refusing 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). And an employer generally “has a right to expect an employee to
work when scheduled.” Del Dee Foods, Inc. v. Miller, 390 N.W.2d 415, 417 (Minn. App.
1986) (quotation omitted).
Kirchner argues that his actions did not amount to employment misconduct. He
asserts that he “attempted to stay in contact and complete [his] work” and that rather than
committing employment misconduct, he “engaged in merely unsatisfactory performance.”
It therefore appears that Kirchner is arguing that his actions were more akin to “simple
unsatisfactory conduct,” which under Minn. Stat. § 268.095, subd. 6(b)(3) (2020), does not
constitute employment misconduct.
We are not persuaded. The ULJ found that “[f]or several days, Kirchner did not
perform any substantial work, was unreachable, and did not communicate he was taking
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time off . . . despite a prior, similar situation and express directions to communicate and
log work.” Kirchner does not challenge these findings, and we disagree that this conduct
constitutes “simple unsatisfactory conduct” rather than employment misconduct. As the
ULJ noted, Kirchner was explicitly required to keep in contact with DRC and log his hours
and work. The email from Kirchner’s supervisor granting Kirchner’s request to work
remotely clearly states that he was expected to keep in contact, track his hours and work
using an online form, and notify DRC ahead of time if he was going to take time off. These
were reasonable policies that DRC had the right to expect Kirchner to abide by. His
conduct therefore constitutes employment misconduct. Schmidgall, 644 N.W.2d at 804.
II.
We defer to a ULJ’s decision whether to grant an additional hearing and will reverse
that decision only if the ULJ abused its discretion. Vasseei v. Schmitty & Sons Sch. Buses
Inc., 793 N.W.2d 747, 750 (Minn. App. 2010). The ULJ’s discretion is not absolute and
“must be exercised within the statutory requirements.” Id. Under the relevant statute, the
ULJ
must order an additional hearing if a party shows that evidence
which was not submitted at the hearing:
(1) would likely change the outcome of the decision and
there was good cause for not having previously submitted that
evidence; or
(2) would show that the evidence that was submitted at
the hearing was likely false and that the likely false evidence
had an effect on the outcome of the decision.

Minn. Stat. § 268.105, subd. 2(c)(1)-(2) (2020).
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Kirchner argues that the evidence he attempted to submit in his request for
reconsideration “should be accepted” and “would clearly show that other evidence that was
submitted was clearly false and would directly affect the outcome of the decision.” The
ULJ denied the request for reconsideration after determining that “Kirchner has not
demonstrated good cause for failing to previously submit any evidence” and that he had
“not shown evidence having an effect on the outcome of the hearing was likely false.” We
agree with the ULJ.
To demonstrate “good cause,” an individual must show “a reason that would have
prevented a reasonable person acting with due diligence from submitting the evidence.”
Minn. Stat. § 268.105, subd. 2(c). Kirchner’s stated reason for not submitting the evidence
earlier is that he did not remember that he had the messages on his phone until after the
ULJ issued the decision. The record supports the ULJ’s decision that this was not good
cause. Kirchner was plainly aware that he used the Microsoft Teams application during
his employment, particularly because during the relevant time period he claimed that he
could not access his email and was communicating solely through Microsoft Teams. A
reasonable person acting with due diligence w ould have been able to discover and submit
the evidence, and Kirchner therefore did not show good cause for failing to submit the
messages earlier.
The record similarly supports the ULJ’s determination that Kirchner failed to
establish that the evidence that had an outcome on the hearing was likely false. As noted
above, Kirchner did not submit copies of the messages, and it is therefore unclear what
information is contained in the messages. Kirchner merely asserts that he has evidence
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that he sent messages to DRC on June 10, 16, 17, and 18. But Kirchner was discharged
for not working or being in communication with DRC for the week of June 15, and
therefore any message sent on June 10 is irrelevant. Additionally, his supervisor testified
that Kirchner sent him a message on June 16 to say his VPN was not working and sent him
two messages on June 18 to ask a question about his personal time off. The record therefore
already contained testimony that Kirchner sent messages on two of the three days that
Kirchner claims to have sent messages. Finally, the purported evidence does not show that
the evidence that had an impact on the decision was likely false. The ULJ found that the
supervisor’s testimony was more credible than Kirchner’s, and that the testimony and
records submitted by DRC showed that the work Kirchner completed was “very sparse”
and that Kirchner failed to meet the expectations that he would perform work and log his
hours and work. Kirchner’s bald assertion that he has evidence that he sent messages on
certain days is inadequate to establish that the supervisor’s testimony and DRC’s records
were likely false. The ULJ therefore did not abuse its discretion in declining to order an
additional hearing and by denying the request for reconsideration.
Affirmed.