Yaohua Sun, 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This opinion is nonprecedential except as provided by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
A22-0472

Yaohua Sun,
Relator,

vs.

Pepperl & Fuchs, Inc.,
Respondent,

Department of Employment and Economic Development,
Respondent.

Filed December 19, 2022
Affirmed
Johnson, Judge

Department of Employment and Economic Development
File No. 48203645-3

Yaohua Sun, Plymouth, Minnesota (pro se relator)

Cory D. Olson, Anthony Ostlund Louwagie Dressen & Boylan, P.A., Minneapolis,
Minnesota (for respondent Pepperl & Fuchs, Inc.)

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

Considered and decided by Larson, Presiding Judge; Johnson, Judge; and Tracy M.
Smith, Judge.

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NONPRECEDENTIAL OPINION
JOHNSON, Judge
In November 2021, Pepperl & Fuchs, Inc., required its Minnesota-based employees
to be on site at the company’s Minnesota facilities for a week-long series of meetings and,
in addition, required them either to be vaccinated against the COVID-19 coronavirus or to
test for the virus and wear a mask at the workplace. Yaohua Sun refused to comply with
the policy, and his employment was terminated. An unemployment-law judge determined
that Sun is ineligible for unemployment benefits because he was discharged for
employment misconduct. We affirm.
FACTS
Sun was employed by Pepperl & Fuchs as a software engineer from November 2019
to November 2021. At the end of his employment, he was earning a salary of $97,375 per
year.
On November 6, 2021, Pepperl & Fuchs informed Sun and other Minnesota-based
employees that, during the week of November 15-19, 2021, they would be required to
attend a series of in-person meetings in Minnesota w ith management-level employees
visiting from the company’s German headquarters. The employer also informed Sun and
other employees that the company would implement a new COVID-19 policy. Employees
were required either to provide proof of a COVID-19 vaccination or to test for the virus
before the meetings and wear a mask while at the company’s workplace.
Sun was not vaccinated against COVID-19 and did not test for the virus before the
meetings. He attended the meetings but did not always wear a mask while at the company’s
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workplace. On Wednesday, November 17, Sun’s manager told him to go home early. In
a video call later that day, Sun’s manager told Sun that he could be discharged if he refused
to comply with the company’s COVID-19 policy. The following day, a Pepperl & Fuchs
human-resources representative spoke with Sun on a video call. Sun did not agree to
comply with the company’s COVID-19 policy. Instead, he requested that he be allowed
to work from home until the risk of COVID-19 abated. His request was denied. The
human-resources representative informed Sun on the November 18 video call that he was
terminated.
Sun applied to the department of employment and economic development for
unemployment benefits. The department made an initial determination that Sun is
ineligible for benefits because he was discharged for employment misconduct. Sun filed
an administrative appeal. In January 2022, an unemployment-law judge (ULJ) conducted
a telephonic hearing. Sun was the only participant in the hearing. The ULJ determined
that Sun is ineligible for unemployment benefits because he was discharged for
employment misconduct for refusing to comply with the company’s COVID-19 policy.
Sun appeals by way of a petition for writ of certiorari.
DECISION
Sun argues that the ULJ erred by determining that he is ineligible for unemployment
benefits.
An applicant is ineligible for unemployment benefits if the applicant was discharged
due to employment misconduct. Minn. Stat. § 268.095, subd. 4(1) (2022). “Employment
misconduct means any intentional, negligent, or indifferent conduct, on the job or off the
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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). In general, refusing to follow an
employer’s reasonable policy qualifies as employment misconduct, and “[a] single incident
can constitute misconduct when an employee deliberately chooses a course of conduct that
is adverse to the employer .” Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804, 806
(Minn. 2002). “Whether the employee committed a particular act is a question of fact.”
Skarhus v. Davanni’s Inc., 721 N.W.2d 340, 344 (Minn. App. 2006). Whether an
employee’s conduct disqualifies the employee is a mixed question of fact and law.
Schmidgall, 644 N.W.2d at 804. “We view the ULJ’s factual findings in the light most
favorable to the decision” and “will not disturb the ULJ’s factual findings when the
evidence substantially sustains them.” Skarhus, 721 N.W.2d at 344.
Sun makes three arguments for reversal.
I. Hearsay Evidence
Sun first argues that the ULJ erred by relying on hearsay evidence. He contends
that the error is prejudicial because there is no non-hearsay evidence of Pepperl & Fuchs’s
reason for terminating his employment.
The rules of evidence , which govern the introduction or exclusion of hearsay
evidence in the district courts, do not apply to telephonic hearings in unemployment
appeals. See Minn. R. Evid. 801-07. The rule that governs an unemployment hearing
provides, “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).
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This rule allows ULJs “to consider all of the circumstances of an employee’s departure in
reaching unemployment benefits qualification determinations.” Jenkins v. American
Express Fin. Corp., 721 N.W.2d 286, 288 n.1 (Minn. 2006).
Sun was the only person who testified at the telephonic hearing. He did not
introduce any exhibits. He testified about Pepperl & Fuchs’s COVID-19 policy by reading
aloud from a letter that he had received in advance of the meetings with the visiting German
employees. He also testified about his conversations with his manager and a human -
resources representative after he was sent home. Sun does not explain why his own
testimony is not “the type of evidence on which reasonable, prudent persons are
accustomed to rely in the conduct of their serious affairs.” See Minn. R. 3310.2922. We
believe that his testimony satisfies the requirements of rule 3310.2922.
Sun’s testimony provides substantial evidence that Pepperl & Fuchs terminated his
employment because he did not comply with the company’s COVID-19 policy. Sun
testified that, on both the November 17 and November 18 video calls, he was told that he
“would need to either conform to the vaccine or testing requirement [or] be discharged.”
Sun also testified that, during the second video call, he was asked whether he would comply
with the company’s COVID-19 policy. He responded by saying that he would not comply,
and he was told that he was terminated. Sun admitted in his testimony that “it was implied”
that the company terminated him because he did not comply with the COVID-19 policy.
We believe that is the only reasonable way to interpret the evidence.
Thus, the ULJ did not err by relying on hearsay evidence.

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II. Reasonableness of COVID-19 Policy
Sun next argues that Pepperl & Fuchs’s COVID-19 policy was not reasonable. He
contends that he could have worked from home, which would have made it unnecessary to
either be vaccinated or to be tested and wear a mask.
Employment misconduct is defined by statute to mean “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.” Minn. Stat.
§ 268.095, subd. 6(a). As a general rule, “if the request of the employer is reasonable and
does not impose an unreasonable burden on the employee, the employee’s refusal to abide
by the request constitutes misconduct.” Vargas v. Northwest Area Found., 673 N.W.2d
200, 206 (Minn. App. 2004), rev. denied (Minn. Mar. 30, 2004). Reasonableness varies
by the circumstances of the case. Sandstrom v. Douglas Mach. Corp., 372 N.W.2d 89, 91
(Minn. App. 1985).
Sun testified that Pepperl & Fuchs’s letter announcing its COVID-19 policy stated
that, when German headquarters personnel were in Minnesota, it would be “critical to get
the team connected ” so that employees could “establish personal communications, share
successes and ideas, gather feedback, and build . . . momentum.” Sun’s testimony about
the letter provides ample evidence to support the ULJ’s finding that the company’s
COVID-19 policy was reasonable. Sun has not cited any caselaw for the proposition that
it is unreasonable for an employer to require an employee to work at the company’s
workplace, and we are unaware of any such caselaw. In addition, this court has, in a non-
precedential opinion, affirmed a ULJ’s finding that a company policy reasonably required
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a front-desk employee to become vaccinated against COVID- 19 because the employer’s
policy was motivated by “health and safety reasons.” Costello v. Fond du Lac Rsrv., No.
A22-0218, 2022 WL 3348567, *2-3 (Minn. App. Aug. 15, 2022). The employer policy in
this case is more lenient than the policy in Costello because Sun had the option of
complying with the policy in either of two ways: getting vaccinated or getting tes ted and
wearing a mask.
Sun also contends that the policy is unreasonable because he has a constitutional
right under the Fourth Amendment to the United States Constitution to be free of
unreasonable searches and seizures, which right he contends would be violated if he were
required to be vaccinated. This contention fails for the simple reason that Pepperl & Fuchs
is a private entity, not a state actor, so the Fourth Amendment does not apply. See New
Jersey v. T.L.O., 469 U.S. 325, 335 (1985); see also Johnson v. Tyson Foods, Inc., ____ F.
Supp. 3d ____, ____, 2022 WL 2161520, *3 -6 (W.D. Tenn. June 15, 2022) (dismissing
constitutional claims alleged against private employer based on COVID- 19 vaccine
mandate); Beckerich v. St. Elizabeth Med. Ctr., 563 F. Supp. 3d 633, 639-40 (E.D. Ky.
Sept. 24, 2021) (concluding that plaintiffs are unlikely to succeed on constitutional claims
alleged against private employer based on COVID-19 vaccine mandate).
Thus, the ULJ did not err by concluding that Pepperl & Fuchs’s COVID-19 policy
was reasonable.

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III. Subpoena to Employer
Sun last argues that the ULJ erred by not issuing a subpoena to compel Pepperl &
Fuchs to appear at the telephonic hearing for the purpose of submitting evidence about the
reason for Sun’s termination.
A ULJ “may issue subpoenas to compel the attendance of witnesses . . . upon a
showing of necessity by the requesting party.” Minn. R. 3310.2914, subp. 1 (2021). A
party requesting a subpoena must make the request “to the chief unemployment law judge,
by electronic transmission or mail, sufficiently in advance of the scheduled hearing to allow
for the service of the subpoenas.” Id. The chief ULJ may deny a request for a subpoena
“if the testimony or documents sought would be irrelevant, immaterial, or unduly
cumulative or repetitious.” Id. A ULJ “ may issue a subpoena even if a party has not
requested one.” Id. (emphasis added). A ULJ could issue a subpoena to comply with the
duty to “ensure that all relevant facts are clearly and fully developed.” Minn. R. 3310.2921
(2021). A ULJ also has a duty to “assist all parties in the presentation of the evidence.”
Minn. R. 3310.2921. However, ULJs are neutrals and should not act as “the unrepresented
party’s advocate.” Stassen v. Lone Mountain Truck Leasing, LLC, 814 N.W.2d 25, 32
(Minn. App. 2012) (citing Minn. Stat. § 268.105, subd. 1(b) (2010)). This court applies an
abuse-of-discretion standard of review to a ULJ’s decision not to issue a subpoena.
Icenhower v. Total Auto., Inc., 845 N.W.2d 849, 853 (Minn. App. 2014), rev. denied (Minn.
July 15, 2014).
The department argues in its responsive brief that there is no reversible error because
Sun never requested a subpoena. The department is correct that Sun did not request a
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subpoena. At the beginning of the telephonic hearing, the ULJ informed Sun that Pepperl
& Fuchs would not be appearing, that he had a right to request a rescheduled hearing “so
that documents or witnesses can be presented, by subpoena if necessary,” and that the
hearing was his “only opportunity available to present testimony and other evidence.” Sun
did not ask the ULJ to issue a subpoena to Pepperl & Fuchs.
In addition, there is no reversible error because the record was well developed on
the issue of the company’s reason for terminating Sun. He testified that his manager and a
human-resources representative told him that he could be terminated if he did not comply
with the company’s COVID-19 policy, that he persisted in refusing to comply, and that he
was informed of his termination promptly thereafter. In light of that evidence, it was
unnecessary for the ULJ to subpoena the company to elicit additional evidence about the
reason for Sun’s termination.
Thus, the ULJ did not err by not issuing a subpoena to Pepperl & Fuchs.
In sum, the ULJ did not err by concluding that Sun is ineligible for unemployment
benefits.
Affirmed.