Trenton Fulghum, 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This opinion is nonprecedential except as provided by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
A24-1854

Trenton Fulghum,
Relator,

vs.

Horizon Equipment, LLC,
Respondent,

Department of Employment and Economic Development,
Respondent.

Filed July 21, 2025
Reversed
Harris, Judge

Department of Employment and Economic Development
File No. 50560763-5

Benjamin L. Weiss, Brianna Boone, Southern Minnesota Regional Legal Services, Inc.,
St. Paul, Minnesota (for relator)

Horizon Equipment, LLC, Londonderry, New Hampshire (respondent employer)

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

Considered and decided by Bratvold, Presiding Judge; Bjorkman, Judge; and Harris,
Judge.

2
NONPRECEDENTIAL OPINION
HARRIS, Judge
In this certiorari appeal from the decision of an unemployment- law judge (ULJ),
relator challenges the ULJ’s conclusion that he is ineligible for unemployment benefits
because he was discharged for employment misconduct. He argues that (1) the ULJ erred
by declining to apply the mental-illness exception to ineligibility based on misconduct, and
(2) the ULJ’s determination that he was discharged for aggravated employment
misconduct is not supported by substantial evidence. Because we conclude the ULJ’s
determinations that relator was discharged for employment misconduct and aggravated
employment misconduct were not supported by substantial evidence, we reverse.
FACTS
The following facts are drawn from the testimony and exhibits in the record before
the ULJ. Relator Trenton Fulghum worked as an equipment specialist for respondent
Horizon Equipment, a food service equipment dealer, from May 2023 to April 12, 2024.
When employed by Horizon, Fulghum had been diagnosed with major depressive disorder
and generalized anxiety disorder. Since his discharge, he has also been diagnosed with
bipolar disorder.
On April 8, 2024, Fulghum was experiencing mental-health symptoms and began
drinking alcohol at approximately “5:30 or 6:00 p.m.” and continued drinking until
1:00 a.m. During that time, he drank approximately three-quarters of a 1.75-liter bottle of
vodka. Sometime between 2:00 a.m. and 3:00 a.m. on April 9, Fulghum got in his car and
drove around St. Paul. He drove because he “was going back and forth” on whether he
3
“was going to go through with escaping and going off the grid,” and considered driving
north to be “in the middle of nowhere.” He was not intending to commit suicide. Four
hours later, he struck a parked car in a residential driveway, drove away from the scene,
and crashed into the batting cages of a nearby baseball field.
When police responded to the scene, Fulghum was arrested after he failed field
sobriety tests and, according to a breathalyzer test, his alcohol concentration was 0.10.
Fulghum was incarcerated from April 9-11, 2024, and he later pleaded guilty to gross-
misdemeanor driving while impaired (DWI). He missed work due to his incarceration.
On April 9, Horizon Equipment contacted Fulghum’s brother about Fulghum’s
absence. The brother said Fulghum was absent because he was sick. After being released
from incarceration on April 11, Fulghum told Horizon Equipment that he had been arrested
for driving while impaired and missed work because of incarceration. The following day,
Horizon Equipment notified Fulghum that he was discharged from employment for “being
a no call, no show.”
Fulghum applied for unemployment benefits with respondent Minnesota
Department of Employment and Economic Development (DEED). DEED determined he
was ineligible for benefits because he was discharged for failing to notify his employer of
his absence from work and that failure was employment misconduct.
Fulghum appealed to a ULJ, who held a telephone hearing, at which Fulghum and
his brother testified. Fulghum explained the events that led to his discharge and testified
that he was experiencing “major depressive disorder” on the evening of April 8. Horizon
Equipment did not participate in the hearing before the ULJ.
4
The ULJ issued a written decision, finding that Fulghum was discharged for
employment misconduct and therefore ineligible to receive employment benefits.
Fulghum requested reconsideration of the ULJ’s determination . The ULJ
determined that an additional evidentiary hearing was necessary to determine whether
Fulghum was discharged due to employment misconduct or aggravated employment
misconduct. It also ordered Horizon Equipment to submit a letter stating the reasons for
the discharge. An evidentiary hearing was held by telephone, at which Fulghum testified
that when he started drinking that evening, he was experiencing manic symptoms. At some
point, his state of mania swung into a state of depression with suicidal thoughts.1 Horizon
Equipment did not participate or submit a letter explaining the discharge. 2
Fulghum also submitted to the ULJ two letters from a mental-health therapist with
whom he began working on April 23. In the first letter, the therapist stated that Fulghum
has been diagnosed with major depressive order and that Fulghum described his mental-
health symptoms, including “depressed mood, sleeping issues, feelings of helplessness and
hopelessness, irritability, racing thoughts, issues with concentration, and suicidality.” In
the second letter, the therapist stated that “it was evident that [Fulghum] had been
struggling significantly with his mental health for some time” and that he used alcohol

1 Fulghum also testified that he was charged with a separate DWI in November 2023. And
in February 2024, Fulghum missed approximately three days of work because of his
mental-health conditions. At that time, he had “[m]ajor depressive disorder and
generalized anxiety.” He informed his employer that he would “be going to a doctor to get
[his] . . . medication adjusted.”

2 Horizon Equipment also has not participated in this appeal.
5
“[a]s a coping mechanism” to alleviate his mental-health symptoms, which in turn, fueled
his mental- health struggles. She opined that the “cycle of substance abuse and mental
health fed off one another and that is what ultimately led to him operating a vehicle under
the influence.”
The ULJ issued a written decision determining that Fulghum was ineligible for
unemployment benefits because he was discharged for employment misconduct and that
the conduct was not a consequence of his mental illness. The ULJ also concluded that
Fulghum was discharged for aggravated employment misconduct, noting that Fulghum
“committed gross- misdemeanor-level driving under the influence . . . and it had a
significant adverse effect on the employment.”
Fulghum again requested reconsideration, and the ULJ affirmed the decision.
Fulghum appeals by writ of certiorari.
DECISION
Fulghum challenges the ULJ’s decision that he is ineligible for unemployment
benefits. An employee who is discharged for employment misconduct is ineligible for
unemployment benefits. Minn. Stat. § 268.095, subd. 4(1) (2024). Employment
misconduct is “any intentional, negligent, or indifferent conduct . . . 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) (2024). But “conduct that was a
consequence of the applicant’s mental illness or impairment” is not employment
misconduct. Id., subd. 6(b)(1) (2024).
6
Whether an employee committed employment misconduct that disqualifies them
from unemployment benefits is a mixed question of law and fact. Stagg v. Vintage Place
Inc., 796 N.W.2d 312, 315 (Minn. 2011). On review of a ULJ decision, we defer to the
ULJ’s credibility determinations and uphold the ULJ’s findings of fact if supported by
substantial evidence. Minn. Stat. § 268.105, subd. 7(d)(5) (2024); Wilson v. Mortg. Res.
Ctr., Inc., 888 N.W.2d 452, 460 (Minn. 2016). Substantial evidence is relevant evidence
that a “reasonable mind might accept as adequate to support a conclusion, or more than a
scintilla of evidence.” Moore Assocs., LLC v. Comm’r of Econ. Sec., 545 N.W.2d 389, 392
(Minn. App. 1996). We review de novo whether the facts found by the ULJ constitute
employment misconduct. Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn.
2002). We may affirm the ULJ’s decision or remand for further proceedings, or we may
reverse or modify the decision if the substantial rights of the petitioner may have been
prejudiced because the ULJ’s
findings, inferences, conclusions, or decisions are (1) in
violation of constitutional provisions; (2) in excess of the
statutory authority or jurisdiction of the department; (3) made
upon unlawful procedure; (4) affected by other error of law;
(5) unsupported by substantial evidence in view of the hearing
record as submitted; or (6) arbitrary or capricious.

Minn. Stat. § 268.105, subd. 7(d) (2024).

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I. The ULJ’s determination that the mental-illness exception does not apply to
Fulghum’s conduct is not supported by substantial evidence.3

Fulghum first argues that the ULJ’s determination that the mental-illness exception
to the definition of employment misconduct did not apply was unsupported by substantial
evidence. We agree.
As an initial matter, we note that employers have the right to establish and enforce
reasonable rules governing employee attendance. Wichmann v. Trivalia, 729 N.W.2d 23,
28 (Minn. App. 2007). An employee who fails to follow an employer’s reasonable
attendance policy commits employment misconduct. Stagg, 796 N.W.2d at 317. And
absence due to incarceration may also constitute misconduct. Jenkins v. Am. Exp. Fin.
Corp., 721 N.W.2d 286, 290 (Minn. 2006). Absence from work due to incarceration is not
misconduct that will disqualify an employee on a per se basis from establishing eligibility
for receipt of unemployment compensation. Id. at 287. Fulghum asserts that his conduct
does not constitute employment misconduct because his actions were the consequence of
his mental illness.4
“[C]onduct that was a consequence of the applicant’s mental illness or impairment”
is an exception from the definition of “employment misconduct.” Minn. Stat. § 268.095,

3 Fulghum also argues that the ULJ’s credibility finding as to his testimony is not supported
by substantial evidence. Because the unrebutted evidence establishes that Fulghum’s
conduct was a consequence of his mental illness, we need not address the ULJ’s credibility
findings regarding Fulghum’s conduct prior to his driving after consuming alcohol.

4 The parties’ briefing also discuss a separate exception to the employment misconduct
definition—the substance-use-disorder exception. It is undisputed that this exception does
not apply here.
8
subd. 6(b)(1). A “consequence” is a “result that follows as an effect of something that
came before.” Black’s Law Dictionary 383 (12th ed. 2024) (defining consequence).
A ULJ’s credibility determination “ must set out the reason for crediting or
discrediting that testimony.” Minn. Stat. § 268.105, subd. 1a(a) (2024). This statutory
requirement is met when the ULJ makes a “basic finding that [it] did not find specific
testimony by the relator credible.” Wichmann, 729 N.W.2d at 29. This requirement is not
met when “credibility was central to the decision” and the ULJ makes no basic findings
about credibility, and “never address[es] credibility.” Id.
The ULJ made several factual findings that are consistent with the record, including
that: Fulghum suffered from bipolar and generalized anxiety disorders; he self-medicated
his symptoms of mental illness with alcohol; on the evening of April 8, Fulghum
experienced a state of mania that swung into a state of depression after drinking vodka; and
Fulghum began driving while he was under the influence of alcohol because he wanted to
escape.
But the ULJ’s finding that “[t]he credible evidence does not support a finding that
Fulghum’s conduct in driving a vehicle while under the influence of alcohol was a
consequence of mental illness or impairment” is not supported by the entire record.
5 In
addition to his testimony, Fulghum provided two letters from his therapist as evidence that

5 Fulghum also asserts that the ULJ’s finding misstates the law because under Minn. Stat.
§ 268.095, subd. 6(b)(1), the ULJ should analyze how mental -health disorders affect the
specific applicant, not how mental-health disorders function in general. Although the ULJ
may have used less than precise language , it is apparent the ULJ did consider Fulghum’s
mental-illness symptoms.
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his conduct was a consequence of his mental illness. In the first letter, the therapist stated
that Fulghum has been diagnosed with major depressive order and described the symptoms
that Fulghum reported experiencing. In the second letter, the therapist wrote the following:
As a coping mechanism, [Fulghum] turned to alcohol in an
attempt to lessen his mental health symptoms. Despite his turn
to alcohol for comfort the alcohol only fueled his mental health
struggles, which then in turn made [Fulghum] drink more.
Unfortunately, I believe that this cycle of substance abuse and
mental health fed off one another and that this is what
ultimately led to him operating a vehicle under the influence.

The ULJ did not discuss these letters in her decision. In reviewing the ULJ’s
findings, it is apparent that credibility determinations were central to the ULJ’s decision.
We have not found evidence in the record that discredits the therapist’s opinions.
In fact, Fulghum testified consistent with his therapist’s letters that he is diagnosed with a
mental illness, that he was experiencing mental-health symptoms on April 8, that he drank
alcohol, and that his mental-health issues caused him to drive after drinking. Because
credibility was central to the ULJ’s decision and the therapist’s letters have not been
discredited, we conclude that the ULJ’s finding is unsupported by the record.
Fulghum relies on two cases to support his assertion that the mental-illness
exception applies when there is a traceable consequential connection between an
applicant’s mental illness and the conduct that led to the applicant’s discharge. In
Cunningham v. Wal-Mart Assocs., Inc., this court concluded that an employee’s conduct
of missing work, not calling his employer to report his absences, and related performance
problems, were a consequence of his mental impairment. 809 N.W.2d 231, 233 (Minn.
App. 2011). In that case, the employee was struggling to meet the employer’s performance
10
expectations because he had difficulty with comprehension and multitasking after suffering
four strokes. Id. The employer told the employee to write an action plan explaining what
he could do differently to meet the expectations and to “come in on [his] next scheduled
shift with [his] action plan.” Id. at 236. The employee did not write the action plan, did
not appear for his next five shifts, and did not call to report his absence. Id. at 234. The
employer discharged him for job abandonment. Id. In reversing the ULJ’s decision, we
noted the record demonstrated that the employee had memory and concentration problems,
that he informed the employer that his performance issues were related to his condition,
and that the employee did not write the action plan because he “did not believe there were
any reasonable steps he could take to correct his performance problems.” Id. at 236
(quotations omitted).
In the nonprecedential opinion, Skottegaard v. Comcast Cablevision Corp., this
court reversed a ULJ decision and concluded that the mental-illness exception applied to
an employee’s conduct of failing to report to work or call in after she overslept. No. A11-
2130, 2012 WL 3792297, at *4 (Minn. App. Sept. 4, 2012); see also Minn. R. Civ. App.
P. 136.01, subd. 1(c) (stating nonprecedential cases may be cited for persuasive authority).
The employee suffered from anxiety, depression, and post-traumatic stress disorder. Id. at
*2. A letter from her therapist opined that her illness was not the “per se” cause of her
conduct, but that she avoided circumstances that caused anxiety, which was a reaction to
her anxiety. Id. at *3. We concluded that, under the broad language of the mental-illness
exception, the employee’s conduct was a consequence of her mental illness or impairment.
Id. at *4.
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We are persuaded by this court’s analysis in Cunningham and Skottegaard. Like
the employees in each case, Fulghum is diagnosed with mental illnesses that contributed
to his act of drinking and driving. And, like the record in Skottegaard, the record here
includes Fulghum’s therapist letter opining that the “cycle of substance abuse and mental
illness . . . ultimately led to him operating a vehicle under the influence.” Fulghum has
demonstrated that his conduct of driving after drinking alcohol was the consequence of his
mental illness.
To convince us otherwise, DEED asserted at oral argument that Fulghum’s conduct
was too attenuated from his mental illness for us to conclude that the mental-illness
exception applies. In doing so, DEED relies on Icenhower v. Total Auto., Inc., where the
employee was discharged from employment after she reported her attention-deficit
disorder (ADD) medication was stolen at work, alleged another employee stole it, and lied
during the subsequent investigation. 845 N.W.2d 849, 851 (Minn. App. 2014), rev. denied
(Minn. July 15, 2014). We concluded that the mental-illness exception did not apply to the
employee’s conduct because “no record evidence shows that ADD causes a person to lie.”
Id. at 857. The record contained the employee’s testimony admitting that she lied, that she
“did not have a good reason” for the lie, and that she was not on her ADD medication at
the time. Id. (quotations omitted). DEED contends that Icenhower is factually similar to
this case. We disagree. Here, Icenhower is factually distinguishable because the
therapist’s letters are strong evidence that the link between Fulghum’s conduct and his
mental illness is not tenuous.
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In sum, because there is sufficient unrebutted evidence that Fulghum’s conduct was
a result of his mental illness, we conclude that Fulghum’s conduct was a consequence of
his mental illness, and the mental-illness exception applies.
II. The ULJ erred by concluding that Fulghum was discharged for aggravated
employment misconduct.

Aggravated employment misconduct is “any act . . . that would amount to a gross
misdemeanor or felony . . . [that] had a significant adverse effect on the employment.”
Minn. Stat. § 268.095, subd. 6a(a) (2024). It is presumed that a person committed the act
in question if they are convicted of a gross misdemeanor or felony. Id. No exceptions
apply to the definition of aggravated employment misconduct. See id., subd. 6a(c) (2024)
(“The definition of aggravated employment misconduct provided by this subdivision is
exclusive and no other definition applies.”). When it is determined that an employee was
discharged for aggravated employment misconduct, the employee’s wage credits from
employment are also canceled, in addition to being ineligible to receive unemployment
benefits. Id., subd. 10(a), (c) (2024).
The ULJ concluded that Fulghum was discharged for aggravated employment
misconduct, reasoning that:
although the employer did not give testimony about whether
the criminal conduct was part of the reason for the discharge,
the evidence of the timing of events shows that the criminal
conduct most likely was part of the reason for the discharge, as
Horizon Equipment did not decide to discharge Fulghum until
after the employer had learned the true reason Fulghum had
been absent from April 9-11.

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Fulghum concedes that his gross-misdemeanor conduct constitutes aggravated
employment misconduct, but nevertheless argues that the record does not support a
conclusion that the employer discharged him for the DWI. We agree that the record does
not support the ULJ’s conclusion.
“To disqualify a person from receiving benefits, the misconduct must be the cause
of the discharge.” Hansen v. C.W. Mears, Inc., 486 N.W.2d 776, 780 (Minn. App. 1992)
(analyzing a prior statutory scheme of unemployment benefits and concluding gross
misconduct was not the stated reason for discharge), rev. denied (Minn. July 16, 1992).
And “[t]he character of the termination is determined at the time of the termination.” Id.
We are persuaded by this court’s analysis in Leuze v. Minn. Valley Alfalfa
Producers, where we reversed a ULJ’s aggravated-misconduct determination when the
only reason provided by the employer for the discharge was absence from work. No. A20-
0031, 2020 WL 4743505, at *6 (Minn. App. Aug. 17, 2020). Although the employee
missed work because he was incarcerated, the employer was unaware of the employee’s
incarceration at the time of the discharge. Id.
According to Fulghum’s undisputed testimony, the only reason given by Horizon
Equipment for his discharge was for “no call, no show.” Although Fulghum told Horizon
Equipment that he was incarcerated and he was discharged the following day, Horizon
Equipment never participated in the ULJ proceedings to explain its decision. On this
record, there is not substantial evidence to support that Fulghum’s gross-misdemeanor
charge was the cause of his discharge. Mere absence from work, without more, does not
constitute aggravated employment misconduct. See Minn. Stat. § 268.095, subd. 6a(a).
14
In sum, because the record evidence demonstrates that Fulghum was discharged for
conduct that was a consequence of his mental illness, under Minn. Stat. § 268.095,
subd. 6(b)(1), he did not commit employment misconduct. And the record does not
demonstrate that Fulghum was discharged for aggravated employment misconduct under
Minn. Stat. § 268.095, subd. 6a(a). Accordingly, the ULJ erred by determining that
Fulghum was ineligible for unemployment benefits.
Reversed.