Brandon L. Siems, 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This opinion is nonprecedential except as provided by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
A21-1603

Brandon L. Siems,
Relator,

vs.

Courtesy Corporation - McDonald’s,
Respondent,

Department of Employment and Economic Development,
Respondent.

Filed September 26, 2022
Affirmed
Larson, Judge

Department of Employment and Economic Development
File No. 46649033-3

Brandon L. Siems, Zumbrota, Minnesota (pro se relator)

Courtesy Corporation - McDonald’s, Onalaska, Wisconsin (respondent employer)

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

Considered and decided by Johnson, Presiding Judge; Larson , Judge; and John
Smith, Judge.
*

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
2
NONPRECEDENTIAL OPINION
LARSON, Judge
Relator Brandon L. Siems appeals an unemployment -law judge ’s (ULJ)
determination that he does not qualify for unemployment benefits . We affirm.
FACTS
Siems, an individual diagnosed with autism -spectrum disorder, worked as a full-
time maintenance employee for Courtesy Corporation—McDonald ’s (McDonald’s) from
November 1, 2018, to May 30, 2021. McDonald’s ha d a sexual-harassment policy
prohibiting unwelcome advances or flirtations in the form of words, actions, or
unwelcomed contact .
During Siems’s employment, he frequently communicated with a colleague 1 via
Snapchat, an internet messaging application. Siems sent the colleague Snapchat messages
“about once a day.” The colleague did not object to these communications. Siems would
also wait for the colleague in the parking lot to give her cards with money inside. In total,
Siems gave the colleague approximately $2,500.
In March 2021, the colleague decided she no longer wanted to communicate with
Siems, stopped talking with him, and blocked him on Snapchat. Before doing so, the
colleague messaged Siems:
Sorry I can ’t talk anymore I am probably getting . . . rid of
Snapchat and going to stay off my phone as much as possible
because I have to focus on some other stuff so I won’ t be able

1 At the time of the se events, Siems was 23 and the colleague was 17. Siems argues the
colleague’s age was irrelevant to whether he committed employment misconduct. With
this context in mind, we refer to her as “the colleague.”
3
to talk to you for a while. Also I don’t work tomorrow sorry
again but if you get deleted off my snap it ’s because I deleted
my account sorry again.

Siems then asked a coworker to speak to the colleague. After speaking to the
colleague, t he coworker told Siems , “[s]he basically said that she didn ’t really wanna be
friends” and “that she felt kind of uncomfortable.” Siems responded with dismay that the
colleague did not want to speak with him.
On May 19, 2021, Siems approached the colleague when she arrived at work, gave
her a card with money, and said, “ [d]on’t say anything to work.” Siems testified that , at
that time, he and the colleague were not “technically speaking.” That evening, Siems found
the colleague’s address online and walked eight miles to the colleague’s house. He testified
that he did so because she blocked him on Snapchat.
The next day, the colleague complained to a supervisor that Siems communicat ed
with her after she asked him to stop and that he visited her house. McDonald’s took written
statements from the colleague and two other employees with knowledge of the situation.
McDonald’s then terminated Siems’s employment, citing its sexual-harassment policy .
Following his termination, Siems applied for unemployment benefits with
Respondent Minnesota Department of Employment and Economic Development (DEED).
DEED administratively determine d that Siems met the eligibility requirements for
unemployment benefits . Specifically, DEED found that Siems’s actions “were not
employment misconduct because the violation or failure was not significant or it was
unintentional.” McDonald’s appealed that determination.
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The chief ULJ mailed a notice on July 2, 2021, informing Siems that the ULJ would
hold a hearing on McDonald’s appeal on July 20, 2021. The ULJ conducted a hearing on
that date. Siems, a McDonald’s human-resources manager, and Siems’s McDonald’s area
supervisor appeared at the hearing . The ULJ told Siems that he had the right to request
that the ULJ reschedule the hearing to allow Siems to obtain documents or subpoena
witnesses; Siems did not make any such request. At the hear ing, McDonald’s did not
submit their sexual-harassment policy into evidence, but the McDonald’s human-resources
manager testified about the policy. McDonald’s also submitted written statements from
the colleague and two other employees describing Siems’s contacts with the colleague .
Following the hearing, the ULJ determined that McDonald’s discharged Siems for
employment misconduct when he violated the sexual-harassment policy , and that Siems’s
conduct was not a consequence of his autism-spectrum disorder . Therefore, Siems did no t
qualify for unemployment benefits .
Siems filed a request for reconsideration. As part of the request, Siems disputed
that his conduct was not a consequence of his autism-spectrum disorder. He also asked for
an additional hearing. The ULJ denied both requests. In denying the request for
reconsideration, the ULJ found that Siems’s “sworn testimony that a medical doctor has
not told him his actions were a consequence of his autism spectrum disorder” contradicted
his arguments. The ULJ also noted Siems’ s testimony “that he had friends he talked to
every day and was able to independently obtain employment.” And the ULJ highlighted
Siems’s testimony that “he receives no mental health treatment or services to assist him
with his activities of daily living.”
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This certiorari appeal follows.
DECISION
Siems challenges the ULJ’s decision that he is ineligible for unemployment benefits.
When reviewing the ULJ ’s decision, we may affirm the decision or remand for further
proceedings. Minn. Stat. § 268.105, subd. 7(d) (2020). Alternatively, we may reverse or
modify the ULJ ’s decision when it prejudices relator because the decision, among other
things, derives from unlawful procedure, relies on an error of law, or is unsupported by
substantial evidence. Id., subd. 7(d) (3)-(5).
Siems argues the ULJ erred when she (1) determined Siems’s conduct constituted
employment misconduct; (2) denied Siems a fair hearing; and (3) den ied Siems’s request
for an additional hearing. We address each argument in turn.
I.

Siems first argues the ULJ erred when she determined his conduct constitute d
employment misconduct. When an employer discharges an employee for employment
misconduct, the employee is disqualified from unemployment benefits. Minn.
Stat. § 268.095, subd. 4(1) (2020); see also Wichmann v. Travalia & U.S. Directives, Inc.,
729 N.W.2d 23, 27 (Minn. App. 2007). “Whether an employee engaged in employment
misconduct presents a mixed question of law and fact.” Wichmann, 729 N.W.2d at 27.
“We view the ULJ ’s factual findings in the light most favorable to the decision, giving
deference to the credibility determinations made by the ULJ .” Skarhus v. Davanni’s Inc.,
721 N.W.2d 340, 344 (Minn. App. 2006) (citation omitted) . “ In doing so, we will not
disturb the ULJ ’s factual findings when the evidence subs tantially sustains them. ” Id.
6
(citing Minn. Stat. § 268.105, subd. 7(d) ). But we review whether the facts show an
employee engaged in employment misconduct de novo. See id .
A. Employment Misconduct
Siems contends that he did not engage in employment misconduct because his
conduct does not meet the “sexual harassment” definition in the Minnesota Human Rights
Act (MHRA). See Minn. Stat. § 363A.03, subd. 43 (2020). But we must determine
whether Siems engaged in employment misconduct under t he Minnesota Unemployment
Insurance Law (unemployment -insurance law) , not whether Siems’s actions were sexual
harassment under the MHRA . Under the unemployment -insurance law, employment
misconduct is “a serious violation of the standards of behavior the e mployer has the right
to reasonably expect .” Minn. Stat. § 268.095, subd. 6( a). “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).
Substantial evidence supports the following ULJ findings. McDonald’s ha d a
sexual-harassment policy that prohibited unwelcome contact, the policy explained that
termination could result from violating the policy, and Siems was aware of the policy.
Siems pursued a relationship with the colleague. During this time, he messaged the
colleague about once a day. The colleague blocked Siems on Snapchat to prevent
unwelcome communicati on. Siems asked a coworker to contact the colleague ; th e
coworker expressly told Siems the colleague did not want contact with him. After learning
the colleague did not want Siems to contact her, Siems approached the colleague. At that
encounter, Siems admitted he said “[d]on’t say anything to work” because he thought his
7
conduct might violate a McDonald’s policy. Later that day, Siems looked up the
colleague’s address, walked eight miles to her house, and told her grandparents he wanted
to give the col league a card and talk with her. Siems admitted that he went to the
colleague’s house because he could not message her on Snapchat .
Based on this record, we conclude that Siems engaged in employment misconduct.
McDonald’s sexual-harassment policy prohibited unwelcome contact. Schmidgall, 644
N.W.2d at 804. And outside the sexual-harassment policy, McDonald’s could reasonably
expect an employee to cease social contact when expressly told the contact was
unwelcome. See Minn. Stat. § 268.095, subd. 6(a); Brown v. Nat’l Am. Univ., 686 N.W.2d
329, 333 (Minn. App. 2004) (noting employment misconduct can occur in the absence of
a written policy), rev. denied (Minn. Nov. 16, 2004). Here, Siems continued social contact
with the colleague despite knowledge that the contact was unwelcome . Siems’s acts,
therefore, constitute employment misconduct.
B. Mental-Impairment Exception
Siems argues a mental-impairment exception applies to his case. The employment-
misconduct statute includes an exception for “conduct that was a consequence of the
applicant’s mental illness or impairment.” Minn. Stat. § 268.095, subd. 6(b)(1) (2020).
The ULJ found that Siems had been diagnosed with autism, that he did not receive
mental-health treatment, that he was independent in his activities , and, therefore, Siems’ s
conduct was not a consequence of his mental impairment. On reconsideration, the ULJ
further explained that it based its decision on Siems’s sworn testimony that (1) “a medical
doctor has not told him his actions were a consequence of his autism spectrum disorder”;
8
(2) “he had friends he talked to every day and was able to independently obtain
employment”; and (3) “he receives no mental health treatment or services to assist him
with his activities of daily living.” Substantial evidence supports these findings .
Based upon these findings, we conclude that the mental-impairment exception does
not apply. No evidence in the record shows that Siems continued to contact the coll eague
because Siems has autism. Further, the record indicates that Siems knew his conduct
violated McDonald’s policy; he testified that he told the colleague not to say anything to
work because he was afraid it violated “some sort of policy in [ McDonald’s] handbook.”
The evidence shows that autism did not prevent Siems from understanding that his behavior
could potentially have adverse consequences for his employment. Therefore, we conclude
that Siems’s conduct was not a consequence of his autism and the mental-impairment
exception does not apply.
For these reasons, we affirm the ULJ’s decision that McDonald’s discharged Siems
for employment misconduct.
II.
Siems next asserts that the ULJ denied him a fair hearing . A hearing to determine
qualification for unemployment benefits is an evidence -gathering inquiry rather than an
adversarial proceeding. Minn. R. 3310.2921 (2021). The ULJ must ensure that all relevant
facts are developed and conduct the hearing in a manne r “that protects the parties ’ rights
to a fair hearing.” Id. Siems offers two claims that he did not receive a fair hearing, arguing
the ULJ improperly: (1) provided Siems the hearing notice the day before the hearing; and
9
(2) allowed inadmissible hearsay. Neither of these claims show the ULJ denied Siems a
fair hearing.
A. Adequate Notice
Siems first argues he did not receive a fair hearing because he only received notice
the day before the hearing. In effect, Siems claims the ULJ did not provide the statutorily
required notice or comply with constitutional due process. We review these questions de
novo. See In re Grand Rapids Pub. Utils. Comm ’n, 731 N.W.2d 866, 875 (Minn. App.
2007) (constitutional question); Reider v. Anoka -Hennepin Sch. Dist. No. 11, 728 N.W.2d
246, 249 (Minn. 2007) (statutory question).
Beginning with the statutory question, under the unemployment -insurance law and
its implementing regulations, the chief ULJ must mail notice “not less than ten calendar
days before the date of the hearing.” Minn. Stat. § 268.105, subd. 1 (2020); see also Minn.
R. 3310.2905, subp. 2 (2021) (substantially similar). The chief ULJ followed the notice
requirement. The chief ULJ mailed Siems’s notice on July 2, 2021—18 days before the
hearing. Further, the ULJ offered Siems the opportunity to reschedule the hearing. Siems
declined the opportunity. As such, the ULJ complied with the notice requirements and did
not err when it proceeded on the scheduled date.
The notice also comported with constitutional due process. The United States and
Minnesota Constitut ions provide that no person shall be deprived of life, liberty, or
property without due process of law. U.S. Const. amends. V, XIV, § 1; Minn. Const. art. I,
§ 7. “Unemployment benefits are an entitlement protected by the constitutional right to
procedural due process.” Godbout v. Dep’t of Emp. & Econ. Dev. , 827 N.W.2d 799, 802
10
(Minn. App. 2013). When a due-process challenge revolves around the adequacy of notice,
this court determines whether the notice was “reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of the action and afford them
an opportunity to present their objections.” Id. (quotation omitted). Here, Siems does not
contest the notice’s contents, only its timing. And, as set forth above, the notice complied
with the statutory timeframe, and the ULJ provided Siems an opportunity to reschedule the
hearing. Based on this record, we conclude that the notice Siems received comported with
constitutional due process.
B. Hearsay
Siems next argues he di d not receive a fair hearing because the ULJ admitted
hearsay evidence . Specifically, Siems contests the ULJ ’s decision to allow testimony
regarding McDonald’s sexual-harassment policy and written statements from the colleague
and two other employees. “An unemployment law judge may receive any evidence that
possesses probative value, including hearsay, if it is the type of evidence on which
reasonable, prudent persons are accustomed to rely in the conduct of their serious affairs.”
Minn. R. 3310.2922 (2021). We review a ULJ’s evidentiary rulings for abuse of discretion.
CUP Foods, Inc. v. City of Minneapolis , 633 N.W.2d 557, 566 (Minn. App. 2001), rev.
denied (Minn. Nov. 13, 2001).
Regarding the sexual-harassment policy, Siems correctly observes that McDonald’s
did not offer the policy into evidence. Rather, McDonald’s submitted testimony from a
McDonald’s human-resources manager regarding the policy’s contents. We conclude the
ULJ did not abuse her discretion when she admitted the McDonald’s human-resources
11
manager’s hearsay testimony because she was familiar with the sexual-harassment policy.2
Minn. R. 3310.2922 (2021). 3
And the ULJ did not abuse her discretion in relying on written statements from the
colleague and two other employees . These statements were signed, dated, and possessed
probative value—first -hand accounts of the incidents at issue. See, e.g., Jenkins v. Am.
Express Fin. Corp., 721 N.W.2d 286, 288 n.1 (Minn. 2006) (relying on a third-party letter).
For these reasons, we reject Siems’s claims that he did not receive a fair hearing.
III.

Siems finally argues that the ULJ abused her discretion when on reconsideration she
denied his request for an additional hearing. See Skarhus, 721 N.W.2d at 345 ( applying
abuse-of-discretion standard to ULJ’s reconsideration request denial ). Upon receipt of a
timely request for reconsideration, the ULJ must issue an order affirming the original
decision, modifying the original decision, or setting aside the original decision and ordering
an additional hearing. Minn. Stat. § 268.105, subd. 2(f ) (2020). A ULJ must order an
additional hearing if a party shows that evidence not submitted at the original hearing

2 While not dispositive here, there are cases concluding that a ULJ abuses his or her
discretion when an employment policy is not admitted into the record. See, e.g., Choronzy
v. Viracon, Inc., No. A17- 1018, order op. at 3 (Minn. App. Mar. 7, 2018) (remanding to
the ULJ when ULJ failed to enter an attendance policy into the record). We reiterate that,
where one exists, it is a best practice for ULJs to put the written policy into the record.
3 We observe that we have issued two nonprecedential opinions that touch on this issue.
Erickson v. OTG Mgmt., LLC , No. A17-1154, 2018 WL 3014579, at *4 (Minn. App. June
18, 2018) (affirming ULJ’s reliance on testimony rather than written policy); Umana v.
FedEx Ground Package Sys., Inc., No. A16- 1964, 2017 WL 3863839, at *3 (Minn. App.
Sept. 5, 2017) (allowing testimony on a “no call/no show policy”). While these opinions
are nonprecedential, we recognize their persuasive value. See Minn. R. Civ. App. P.
136.01, subd. 1(c).
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“would likely change the outcome of the decision and there was good cause for not having
previously submitted that evidence .” Id., subd. 2(c)(1) (2020).
In his request for reconsideration, Siems asked the ULJ to allow C.M., a
McDonald’s employee, to testify. But Siems did not describe the testimony C.M. would
provide. Thus, Siems failed to show that C.M.’s testimony would likely change the
outcome, and the ULJ did not abuse her discretion in declining to hold an additional
hearing.
Affirmed.