Cleo K. Clemmer, 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This opinion is nonprecedential except as provided by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
A22-0498

Cleo K. Clemmer,
Relator,

vs.

The Cook Hospital,
Respondent,

Department of Employment and Economic Development,
Respondent.

Filed October 31, 2022
Affirmed
Connolly, Judge

Department of Employment and Economic Development
File No. 48079264-3

Samuel J. Logterman, Kyle R. Kroll, Winthrop & Weinstine, P.A., Minneapolis, Minnesota
(for relator)

The Cook Hospital, Cook, Minnesota (respondent employer)

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

Considered and decided by Frisch, Presiding Judge; Segal , Chief Judge; and
Connolly, Judge.

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NONPRECEDENTIAL OPINION
CONNOLLY, Judge
Relator challenges a decision by an unemployment law judge (ULJ) that she was
ineligible for unemployment benefits, arguing that the ULJ erred in concluding that she did
not have a good reason to quit caused by her employer and that it was not medically
necessary for her to quit. Relator also argues that she did not receive a fair hearing because
the ULJ failed to fully develop the record and declined to issue subpoenas. We affirm.
FACTS
In November 2019, relator Cleo Clemmer began working full time as a housekeeper
for respondent The Cook Hospital. Clemmer primarily worked the afternoon shift. But
she was “hired for all shifts” and would occasionally work other shifts as needed.
In March 2020, in response to the COVID-19 pandemic, Cook Hospital
implemented a policy that required all employees to wear personal protective gear,
including masks, any time they entered the building. Clemmer struggled with the mask
policy because she has emphysema and found it difficult to breathe while wearing a mask.
According to Clemmer, she would sometimes pull her mask down below her nose and
mouth during her shifts when she was not within six feet of another person in order to make
it easier to breathe.
In August 2021, Clemmer was informed that she would be moved to the morning
shift. Clemmer did not want to move to the morning shift because she would have to wear
her mask “all the time.” She later met with human resources and expressed her concerns
about wearing a mask due to her health issues. Human resources told Clemmer that she
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could take additional breaks throughout her shift to rest and try different masks or face
shields. Clemmer tried using a face shield, but her job as a housekeeper required her to
bend over frequently and the face shield would fall off when she bent over.
Clemmer was officially moved to the morning shift o n October 12, 2021, due to
staffing shortages. That same day, Clemmer notified Cook Hospital of her intention to quit
her employment effective October 22, 2021, because she “can’t wear [a] mask for a full
eight hours” due to her emphysema, and since there are “more people around in a morning
shift,” she would not have enough reprieve from wearing a mask. Although Clemmer’s
intended last day was October 22, she was later observed wearing her mask below her nose
and mouth as she prepared to enter a patient’s room. As a result, Cook Hospital “made
[Clemmer’s] two-week notice effective immediately” due to her failure to follow the
hospital’s mask policy.
Clemmer established an unemployment benefit account with respondent Minnesota
Department of Employment and Economic Development (department), and a department
representative issued a determination that Clemmer was eligible for unemployment
benefits because she quit for a good reason caused by her employer. Cook Hospital
appealed that determination, and a de novo hearing was conducted. At the hearing,
Clemmer, who was pro se, acknowledged that when she complained to her employer about
her difficulty with wearing a mask, her employer advised her to take more breaks and
provided her with a smaller face shield. But according to Clemmer, she never tried the
different face shield. Clemmer also admitted that her doctor never told her that she should
not wear a mask. And Clemmer testified that her doctor refused to fill out a medical
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statement exempting her from the mask policy because “[h]e didn’t feel that . . . [Clemmer]
had any medical issue that would . . . interfere with [her] work.”
Following the hearing, the ULJ determined that Clemmer was ineligible for
unemployment benefits because (1) she quit her job without good reason caused by her
employer, and (2) “[i]t was not medically necessary for Clemmer to quit.” Clemmer
requested reconsideration and the ULJ affirmed the decision. This certiorari appeal
follows.
DECISION
I.
Clemmer challenges the ULJ’s decision that she is ineligible for unemployment
benefits. When reviewing such a 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 the relator has been prejudiced because the
decision, among other things, is affected by an error of law or not supported by substantial
evidence in the record. Id., subd. 7(d)(4)-(5).
We review the ULJ’s factual findings in the light most favorable to the decision.
Wilson v. Mortg. Res. Ctr., Inc., 888 N.W.2d 452, 460 (Minn. 2016). We will not disturb
those findings “as long as there is evidence in the record that reasonably tends to sustain
them.” Stagg v. Vintage Place Inc., 796 N.W.2d 312, 315 (Minn. 2011). Whether the
ULJ’s findings show that the applicant meets a statutory exception to ineligibility for
quitting employment is a question of law, which is reviewed de novo. See Peppi v. Phyllis
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Wheatley Cmty. Ctr., 614 N.W.2d 750, 752 (Minn. App. 2000) (applying de novo review
to determine whether applicant met exception for good reason to quit caused by employer).
“A quit from employment occurs when the decision to end the employment was, at
the time the employment ended, the employee’s.” Minn. Stat. § 268.095, subd. 2(a) (2020).
“An applicant who quit[s] employment is ineligible for all unemployment benefits” unless
he or she qualifies under one of the enumerated exceptions to ineligibility. Id., subd. 1
(2020). One exception to ineligibility for unemployment benefits is if an applicant quit
employment because of a good reason caused by the employer. Id., subd. 1(1). Another
exception is the medical-necessity exception. Id., subd. 1(7). The ULJ here determined
that Clemmer failed to satisfy either exception. Clemmer challenges this decision.
A. Clemmer did not have a good reason to quit caused by her employer.
“What constitutes good reason caused by the employer is defined exclusively by
statute.” Rootes v. Wal-Mart Assocs., Inc., 669 N.W.2d 416, 418 (Minn. App. 2003). A
good reason caused by the employer is “a reason: (1) that is directly related to the
employment and for which the employer is responsible; (2) that is adverse to the worker;
and (3) that would compel an average, reasonable worker to quit and become unemployed
rather than remaining in the employment.” Minn. Stat. § 268.095, subd. 3(a) (2020). “If
an applicant was subjected to adverse working conditions by the employer, the applicant
must complain to the employer and give the employer a reasonable opportunity to correct
the adverse working conditions before that may be a good reason caused by the employer
for quitting.” Id., subd. 3(c) (2020).
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This court has determined that “[g]ood cause to quit is generally found where an
employer has breached the terms of an employment agreement.” Hayes v. K-Mart Corp.,
665 N.W.2d 550, 553 (Minn. App. 2003) (quotation omitted), rev. denied (Minn. Sept. 24,
2003). But as the ULJ found, “Clemmer was never promised she would only work
afternoon shifts.” The ULJ also found that, after Clemmer told her employer about her
difficulties with wearing a mask, Cook Hospital “offered Clemmer reasonable
accommodations including taking extra breaks and the opportunity to try different types of
face coverings.” And the ULJ found that “Clemmer did not have a medical condition that
prevented her from complying with [Cook Hospital’s] mask policy.” Thus, the ULJ
concluded that “Clemmer did not quit her employment for a good reason caused by the
employer.”
Clemmer argues that evidence in the record supports a finding that she and Cook
Hospital “had an implicit, if not explicit, understanding that . . . Clemmer would not have
to remain masked for her entire shift,” and that “[t]his agreement took the form of allowing
. . . Clemmer to primarily work the afternoon shift, where she could work with her mask
down when no one was within six feet of her.” She claims that the “record shows that . . .
Clemmer and Cook [Hospital] entered into [this] agreement during the course of her
employment after the pandemic began,” and that Cook Hospital breached this agreement
by moving her to the morning shift, which resulted in an adverse working condition.
(Emphasis added.) Clemmer argues that, because Cook Hospital failed to offer a
reasonable accommodation, the hospital’s breach constituted a good reason for quitting.
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To support her position, Clemmer refers to her testimony at the hearing that (1) she
informed her supervisor that she would be unable to continue working if she was required
to wear a mask for her entire shift, and (2) she consistently took her mask off during her
shift when nobody was around and that her manager “knew . . . and approved” of this
practice. But this testimony does not establish any type of agreement, formal or otherwise,
between Clemmer and Cook Hospital. In fact, Clemmer never testified that she and Cook
Hospital had an “agreement” that she would only work the afternoon shift and, that as part
of this agreement, she could periodically remove her mask during her shift. Rather, the
record reflects that Cook Hospital had a strict mask policy in place and that there were no
exceptions to this policy. Specifically, Cook Hospital’s assistant administrator testified
that Cook Hospital implemented a mask policy at the start of the pandemic that “required”
employees “to wear our masks at all times . . . while we’re in the facility.” Moreover,
Clemmer acknowledged that Cook Hospital implemented this policy at the start of the
pandemic. Although Clemmer may have broken this policy by taking her mask off at times
during her shifts, the fact that she was not immediately disciplined for her behavior does
not demonstrate that Cook Hospital approved of Clemmer’s behavior. Instead, the record
reflects that Clemmer was consistently reminded of her need to comply with the policy,
particularly toward the end of her employment. And to the extent that Clemmer testified
that Cook Hospital approved of her removing her mask during her shift, the ULJ found that
testimony to not be credible, and we defer to that credibility determination. See Skarhus v.
Davanni’s Inc., 721 N.W.2d 340, 344 (Minn. App. 2006) (providing that this court defers
to credibility decisions by the ULJ). Therefore, the ULJ did not err in determining that
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Clemmer and Cook Hospital did not have an employment agreement that Clemmer remain
primarily on the afternoon shift.
Because there was no agreement between Clemmer and Cook Hospital that
Clemmer would remain primarily on the afternoon shift, Cook Hospital did not create an
adverse working condition by moving Clemmer to the morning shift. There is also no
indication that Cook Hospital’s mask policy was adverse to Clemmer or would cause an
average, reasonable person to quit. And to the extent the mask policy was adverse to
Clemmer, Cook Hospital provided reasonable accommodations: Clemmer was provided
with various mask options, including a smaller face shield that she never tried. Moreover,
Clemmer was told to take extra breaks, including breaks “outside if she wanted some fresh
air.” Accordingly, the ULJ did not err in determining that Clemmer did not quit her
employment for a good reason caused by her employer.
B. It was not medically necessary for Clemmer to quit.
Clemmer also argues that the ULJ erred in determining that it was not medically
necessary for her to quit her employment. To be eligible for unemployment benefits under
the medical-necessity exception, the applicant must quit because a “serious illness or injury
made it medically necessary that the applicant quit.” Minn. Stat. § 268.095, subd. 1(7).
This “exception only applies if the applicant informs the employer of the medical problem
and requests accommodation and no reasonable accommodation is made available.” Id.
The ULJ found that “credible evidence supports that Clemmer’s emphysema did not
prevent her from complying with [Cook Hospital’s] mask policy” because “Clemmer
admitted [that] her doctor would not agree to write a note stating that she could not wear a
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mask.” The ULJ also found that Cook Hospital offered reasonable accommodations such
as “additional breaks” or “different face coverings,” but “Clemmer chose not to try them.”
The ULJ, therefore, concluded that it was not medically necessary for Clemmer to quit.
Clemmer argues that the “ULJ erred when it made its determination that it was not
medically necessary for . . . Clemmer to quit solely on the lack of an opinion from [her
physician].” To support her argument, Clemmer cites Madsen v. Adam Corp. , in which
this court reversed a ULJ’s determination that the medical-necessity exception did not
apply where the employee met with the employer and informed the employer that she
intended to quit her employment because of an impending operation to correct a problem
that the standing required by her job exacerbated. 647 N.W.2d 35, 38-39 (Minn. App.
2002). During that meeting, the employee and employer discussed that there were no
suitable jobs available with the company that would allow the employee to sit, thereby
alleviating her problem. Id. at 36. This court determined that the employee had made
reasonable efforts to remain in her employment during the meeting with her employer.1 Id.
at 38. In so holding, this court noted that the statute “requires only notice to an employer”
of the medical issue, “it does not require written notice from a physician.” Id.
Clemmer’s reliance on Madsen is misplaced. In Madsen, the employer never asked
for a physician’s note from its employee, nor did it dispute that the employee had a medical

1 Notably, the version of the medical-necessity statute at issue in Madsen required only that
the applicant make “reasonable efforts to remain in that employment in spite of the serious
illness or injury.” Minn. Stat. § 268.095, subd. 1(7) (2000). But in subsequent amendments
that resulted in the current version of the statute, the legislature removed the “reasonable
efforts” language and made the accommodation request an explicit statutory requirement.
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condition and that her condition prevented her from continuing to perform her employment
duties. Similarly, Cook Hospital never disputed that Clemmer has emphysema. But, unlike
in Madsen, Cook Hospital asked Clemmer to provide a note from her physician stating that
her medical condition prevented her from complying with the mask policy. Not only did
Clemmer fail to provide Cook Hospital with a note from her physician, but she specifically
testified that her physician refused to provide a statement because “[h]e didn’t feel that
. . . I had any medical issue that would . . . interfere with my work.” The ULJ found this
testimony to be credible, and it supports a determination that Clemmer’s medical condition
did not prevent her from complying with Cook Hospital’s mask policy.
Moreover, for the medical-necessity exception to apply, Clemmer must have
informed Cook Hospital of her condition and requested accommodation with no avail. See
Minn. Stat. § 268.095, subd. 1(7). As addressed above, upon being informed of her issues
with the mask policy, Cook Hospital attempted to accommodate Clemmer by providing
her with different mask options, including “different face shields,” and “additional breaks”
where she could go outside and get “fresh air.” These accommodations were reasonable
under the circumstances. Although Clemmer claims that additional breaks were not
practical, and that she never had the opportunity to try the new face shield offered by Cook
Hospital, the record indicates that Clemmer never pursued the accommodations. As such,
the ULJ did not err in concluding that the medical-necessity exception was not applicable.
Because the ULJ did not err in determining that the medical-necessity exception did
not apply, and that Clemmer did not quit her job for a good reason caused by her employer,
the ULJ properly concluded that Clemmer was ineligible for unemployment benefits.
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II.
Clemmer argues, in the alternative, that she was deprived of a fair hearing because
the ULJ (A) “did not ensure [that] all relevant facts were fully developed” and (B) abused
its discretion by not issuing subpoenas for her doctor and her supervisor. Thus, Clemmer
argues that the matter should be remanded for additional factfinding.
A ULJ must conduct the hearing “as an evidence-gathering inquiry.” Minn. R.
3310.2921 (2021) . In doing so, the ULJ “must assist all parties in the presentation of
evidence” and control the hearing “in a manner that protects the parties’ rights to a fair
hearing.” Id. This court will reverse a ULJ’s decision for failure to conduct a fair hearing
if the ULJ employed an unlawful procedure or conducted the hearing in an arbitrary and
capricious manner. Minn. Stat. § 268.105, subd. 7(d)(3), (6) ; see also Wichmann v.
Travalia & U.S. Directives, Inc, 729 N.W.2d 23, 27 (Minn. App. 2007).
A. The relevant facts were fully developed.
Clemmer argues that the ULJ failed to develop the record (1) related to why
Clemmer’s immediate supervisor had not been relaying information to the hospital’s
assistant administrator about Clemmer’s health problems; (2) on the adequacy of the
accommodations offered to Clemmer by Cook Hospital; (3) “on the question of what . . .
Clemmer’s employment expectations were”; and (4) “by not inquiring into additional
evidence that should have been included in the record,” such as Clemmer’s CT scan. We
disagree.
First, whether Clemmer’s immediate supervisor had been relaying information t o
the assistant administrator about Clemmer’s health problems was irrelevant because
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Clemmer specifically testified that she informed her supervisor about her problems with
being masked during her shift, and the assistant administrator testified that she repeatedly
reminded Clemmer about the mask policy an d the need to follow it. Second, the record
reflects that there was extensive testimony related to the accommodations offered to
Clemmer, which included extra breaks and alternative masks. Third, the assistant
administrator testified that everyone was required to wear masks over their face and mouths
and that Clemmer was told “multiple” times of this expectation. And fourth, there is no
indication that additional evidence was necessary because Cook Hospital never disputed
that Clemmer suffered from emphysema, and Clemmer’s CT scans would be relevant only
to that issue. Instead, the issue was whether it was medically necessary for Clemmer to
quit rather than wear a mask, and Clemmer testified that her doctor did not think her
emphysema prevented her from wearing a mask during her shifts. T hus, the record was
adequately developed on the relevant issues.
B. The ULJ did not abuse its discretion by declining to issue subpoenas.
A ULJ has the power to subpoena witnesses, documents, and other exhibits if the
requesting party shows that the evidence is necessary, Minn. R. 3310.2914, subp. 1 (2021),
and a “duty to assist” parties with the development of the record, White v. Univ. of Minn.
Physicians Corp., 875 N.W.2d 351, 357 (Minn. App. 2016). “A request for a subpoena
may be denied if the testimony or documents sought would be irrelevant, immaterial, or
unduly cumulative or repetitious.” Icenhower v. Total Auto, Inc., 845 N.W.2d 849, 853
(Minn. App. 2014) (quotation omitted), rev. denied (Minn. July 15, 2014). We review a
ULJ’s subpoena decision for abuse of discretion. Id.
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At the end of the evidentiary hearing, Clemmer mentioned that “it’s sounding like
we’re gonna have to . . . subpoena” [Clemmer’s doctor] in order to . . . get the information
you would like to get.” The ULJ denied the request, indicating it was not relevant.
Clemmer contends that the ULJ should have subpoenaed her doctor because “any
testimony given by [her doctor] would have been highly relevant to the determination of
whether . . . Clemmer had a serious illness that would have required her to quit employment
at Cook Hospital.” But there was no dispute that Clemmer suffered from a serious illness—
emphysema. The issue was whether this illness made it medically necessary for Clemmer
to quit due to her alleged inability to work while wearing a mask, and Clemmer specifically
testified that her doctor did not believe wearing a mask prohibited her from working at
Cook Hospital. Because Clemmer testified as to her doctor’s opinion, no further testimony
from the doctor was necessary.
Clemmer also argues that her supervisor should have been subpoenaed because he
“would have been able to corroborate testimony as to any agreements Cook Hospital had
with . . . Clemmer, as well as any informatio n . . . Clemmer had given him regarding her
medical condition.” But Clemmer never specifically requested that the ULJ subpoena her
supervisor; instead, she simply made vague references in her written submissions before
the evidentiary hearing related to her supervisor being subpoenaed, which is not enough to
show that Clemmer wanted her supervisor to be subpoenaed. Moreover, Clemmer fails to
demonstrate that there is any information that she told her supervisor that she did not tell
human resources. And the hospital’s assistant administrator testified that Clemmer did not
have an agreement with Cook Hospital to work only the afternoon shift and that Clemmer
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did not have permission to pull her mask down because such a practice would be against
the hospital’s mask policy. Therefore, ULJ did not abuse its discretion by declining to
issue a subpoena for Clemmer’s supervisor, and Clemmer is unable to show that she was
deprived of a fair hearing.
Affirmed.