                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2014).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A14-1193

                                    Lonn H. Luhman,
                                        Relator,

                                           vs.

                                Red Wing Shoe Co., Inc.,
                                     Respondent,

                 Department of Employment and Economic Development,
                                     Respondent.

                                 Filed January 12, 2015
                                        Affirmed
                                      Reilly, Judge

                  Department of Employment and Economic Development
                                  File No. 32292011-3

Lonn H. Luhman, Goodhue, Minnesota (pro se relator)

Red Wing Shoe Co., Inc., Red Wing, Minnesota (respondent)

Lee B. Nelson, Department of Employment and Economic Development, St. Paul,
Minnesota (for respondent Department of Employment and Economic Development)

         Considered and decided by Chutich, Presiding Judge; Stauber, Judge; and Reilly,

Judge.
                       UNPUBLISHED OPINION

REILLY, Judge

      Relator challenges the determination of the unemployment-law judge (ULJ) that

he is ineligible for unemployment benefits because he was discharged for employment

misconduct. Because we find that substantial evidence supports the ULJ’s determination

that relator committed employment misconduct by failing to appear for work as

scheduled under the company’s no-fault attendance policy, we affirm.

                                       FACTS

      Relator Lonn H. Luhman (Luhman) challenges the denial of his claim for

unemployment benefits on the ground that the ULJ erred in determining that he was

discharged for employment misconduct.          Luhman was employed full time with

respondent Red Wing Shoe Co., Inc. (Red Wing Shoe) from September 6, 1988, to

February 20, 2014. Red Wing Shoe adopted a no-fault attendance policy providing that

an employee who accumulates ten points in any rolling calendar year is subject to

discharge. Points are accumulated based on an employee’s full absence, partial absence,

or tardiness from work. Red Wing Shoe imposes additional penalties on an employee

who fails to call in and report an absence. Luhman was familiar with his company’s

attendance policy.

      Luhman’s 2013-2014 attendance report reveals that he accrued over seven points

between March to December 2013 for illnesses and court appearances. Luhman’s last

day of work was Friday, February 7, 2014. On Saturday, February 8, Luhman was

arrested in Dakota County for driving while intoxicated and remained in jail until


                                           2
February 12.      Luhman did not appear for work during his scheduled shifts on

February 10-12 and accrued additional points for these three days, bringing his total

penalty to over ten points within the rolling calendar year. On February 20, Red Wing

Shoe terminated Luhman’s employment for violating the company’s attendance policy.

Luhman subsequently applied for unemployment benefits.

      On March 12, the Minnesota Department of Employment and Economic

Development (DEED) determined that Luhman was ineligible for unemployment benefits

because he was discharged for employee misconduct for failing to report an absence for

all or part of a shift without a good reason. Luhman appealed DEED’s decision and the

ULJ conducted a telephone hearing on April 21.         The ULJ issued his decision on

April 22, finding that Luhman was discharged because of employee misconduct and was

not eligible to receive unemployment benefits. The ULJ found that

               Although Luhman’s absences prior to the final incident would
               not have constituted employment misconduct, the evidence
               shows that his final three absences were no call, no shows
               following his arrest for driving while intoxicated. Luhman
               was unable to report to work due to his incarceration
               following his arrest. Luhman’s conduct interfered with his
               work as he could not report to work for three days because he
               was incarcerated.

      Luhman requested reconsideration of the ULJ’s decision, and the ULJ affirmed his

April 22 findings and decision. This certiorari appeal followed.

                                     DECISION

      When reviewing an unemployment insurance benefits decision this court may

affirm, remand the case for further proceedings, or reverse and modify the decision if the



                                            3
substantial rights of the relator have been prejudiced because, among other things, the

decision is unsupported by substantial evidence in view of the entire record as submitted.

Minn. Stat. § 268.105, subd. 7(d) (2014). Whether an employee engaged in conduct that

disqualifies the employee from unemployment benefits is a mixed question of fact and

law. Stagg v. Vintage Place Inc., 796 N.W.2d 312, 315 (Minn. 2011). Whether an

employee committed a particular act is a question of fact viewed in the light most

favorable to the ULJ’s decision and affirmed if supported by substantial evidence.

Skarhus v. Davanni’s Inc., 721 N.W.2d 340, 344 (Minn. App. 2006). But we review de

novo the legal question of whether the particular act committed by the employee

constitutes employment misconduct. Id.

                                             I.

         An applicant who is discharged by an employer for employment misconduct is

ineligible for unemployment benefits.        Minn. Stat. § 268.095, subd. 4 (2014).

Employment misconduct is defined as “any intentional, negligent, or indifferent conduct,

on the job or off the job that displays clearly: (1) a serious violation of the standards of

behavior the employer has the right to reasonably expect of the employee; or (2) a

substantial lack of concern for the employment.” Minn. Stat. § 268.095, subd. 6 (2014).

Refusing to abide by an employer’s reasonable policies and requests ordinarily amounts

to employment misconduct. Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn.

2002).

         Red Wing Shoe expected its employees to work their scheduled shifts and notify

the company in advance of any absences. An employer has the right to expect an


                                             4
employee to work when scheduled. Smith v. Am. Indian Chem. Dependency Diversion

Project, 343 N.W.2d 43, 45 (Minn. App. 1984). An employee’s failure to abide by Red

Wing Shoe’s attendance policy results in penalties under a points system. An employee

who accumulates ten points in any rolling calendar year may be subject to discharge. The

facts show that Luhman accrued over ten points within one rolling calendar year.

      The Minnesota Supreme Court recognizes that absenteeism may qualify as

misconduct, Moeller v. Minn. Dep’t of Transp., 281 N.W.2d 879, 881 (Minn. 1979),

although “[w]hether an employee’s absenteeism and tardiness amounts to a serious

violation of the standards of behavior an employer has a right to expect depends on the

circumstances of each case.” Stagg, 796 N.W.2d at 316. Here, the ULJ determined that

the absences between March and December 2013 “would not have constituted

employment misconduct,” but that Luhman’s final three absences in February 2014

“were no call, no shows following his arrest for driving while intoxicated.” The ULJ

concluded that Luhman did not qualify for unemployment benefits because his absences

on February 10-12 “interfered with his work as he could not report to work for three days

because he was incarcerated.”1


1
  DEED asks this court to take judicial notice of the public record of Luhman’s
subsequent conviction of a gross misdemeanor for driving while intoxicated and a felony
for driving after cancellation, inimical to public safety. We may take judicial notice of
public records and preserve “the inherent power to look beyond the record where the
orderly administration of justice commends it.” Eagan Econ. Dev. Auth. v. U-Haul Co.
of Minn., 787 N.W.2d 523, 530 (Minn. 2010). The ULJ determined that Luhman
committed employment misconduct by failing to report to work and that such conduct
interfered with his employment. The ULJ’s factual determinations are supported by
substantial evidence in the record irrespective of Luhman’s later conviction, and therefore
we decline to take judicial notice of his subsequent conviction. See also Minn. Stat.

                                            5
      “Minnesota law allows an employer to establish and enforce reasonable rules

governing employee absences.” Cunningham v. Wal-Mart Assocs., Inc., 809 N.W.2d

231, 235 (Minn. App. 2011). Indeed, even a single absence from work may constitute

misconduct when an employee has not received permission to be absent. Del Dee Foods,

Inc. v. Miller, 390 N.W.2d 415, 417 (Minn. App. 1986).           The record substantially

supports the ULJ’s finding that Luhman accrued over seven points between March and

December 2013 and failed to report to work for his scheduled shifts February 10-12

without giving proper notice, bringing his total to over ten points for the rolling year.

Luhman’s absenteeism displayed “a serious violation of the standards of behavior” that

Red Wing Shoe had the right to reasonably expect from him. Minn. Stat. § 268.095,

subd. 6(a)(1). The evidence in the record substantially supports the ULJ’s finding that

Luhman’s conduct amounted to misconduct.

                                            II.

      Having determined that Luhman’s conduct constitutes employment misconduct,

we next turn to whether the chemical-dependency exception applies. Although Luhman

did not directly raise this issue on appeal, Luhman’s chemical-dependency issues were

addressed during the ULJ hearing and we therefore consider whether this exception

applies. Employment misconduct does not include “conduct that was a consequence of

the applicant’s chemical dependency, unless the applicant was previously diagnosed


§ 268.095, subd. 6a(a)(1) (providing that “the commission of any act, on the job or off the
job, that would amount to a gross misdemeanor or felony if the act substantially
interfered with the employment or had a significant adverse effect on the employment” is
aggravated employment misconduct).

                                            6
chemically dependent or had treatment for chemical dependency, and since that diagnosis

or treatment has failed to make consistent efforts to control the chemical dependency.”

Minn. Stat. § 268.095, subd. 6(b)(9).

       We find that the chemical-dependency exception does not apply to the facts of this

case. Minnesota law is clear that conduct related to driving while impaired that interferes

with employment may qualify as employment misconduct.                See id., subd. 6(c)

(“[C]onduct in violation of sections 169A.20, 169A.31, or 169A.50 to 169A.53 that

interferes with or adversely affects the employment is employment misconduct.”). The

ULJ did not make any specific factual findings regarding Luhman’s chemical

dependency.    Instead, the ULJ based its misconduct-determination on the fact that

Luhman was unable to report to work because he was incarcerated. The ULJ determined

that Luhman was ineligible for benefits because his conduct, including his continued

absenteeism and tardiness, interfered with his employment.

       In Jenkins v. Am. Exp. Fin. Corp., the Minnesota Supreme Court declined to adopt

a bright-line rule that “absenteeism resulting from incarceration was misconduct as a

matter of law,” and instead advised that a misconduct-determination should be based on

the particular facts of each case. 721 N.W.2d 286, 290 (Minn. 2006) (citing Grushus v.

Minn. Min. & Mfg. Co., 257 Minn. 171, 176, 100 N.W.2d 516, 520 (1960) (holding

relator who failed to show up at work because he was arrested and incarcerated for an

offense to which he entered a guilty plea had committed employee misconduct)); see also

Smith, 343 N.W.2d at 45 (finding relator’s unavailability to work due to arrest and

incarceration for failure to pay a speeding ticket “amounted to disregard of attendance


                                            7
standards which his employer had a right to expect him to obey”). The evidence in the

record substantially supports the ULJ’s finding that Luhman’s conduct interfered with his

employment because he failed to report to work for three days due to his incarceration,

and the chemical-dependency exception does not apply.

                                          III.

      Luhman submitted a pro se brief challenging the ULJ’s ineligibility determination

on the grounds that (1) his calling card did not work at the jail and he could not

successfully dial out, and (2) he missed work to go to court to resolve a domestic issue.

Assuming these arguments are true, there is no equitable basis for awarding

unemployment benefits. Minn. Stat. § 268.069, subd. 3 (2014). Because there is no

equitable ground for relief, we decline to reverse the ULJ’s findings based on these

additional arguments.

      Affirmed.




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