This opinion will be unpublished and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. 
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U N P U B L I S H E D O P I N I O N

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 
3

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. 

D E C I S I O N

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 
4

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 
5

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. 
6

“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). 
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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 
8

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.