This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2012).

STATE OF MINNESOTA

IN COURT OF APPEALS

A14-0282

Jeremy Tubbs,

Relator,

vs.

Minnesota Department of Human Services,

Respondent,

Department of Employment and Economic Development,

Respondent.

Filed December 1, 2014

Affirmed

Reyes, Judge

Department of Employment and Economic Development

File No. 31625611-3

Jill K. Baker, Anna G. Fisher, Blethen, Gage & Krause, P.L.L.P., Mankato, Minnesota 

(for relator)

Minnesota Department of Human Services, St. Paul, Minnesota (respondent employer)

Lee B. Nelson, Munazza A. Humayun, Minnesota Department of Employment and 

Economic Development, St. Paul, Minnesota (for respondent department)

Considered and decided by Reyes, Presiding Judge; Peterson, Judge; and 

Reilly, Judge. 
2

U N P U B L I S H E D O P I N I O N

REYES, Judge

Relator Jeremy Tubbs challenges the determination of the unemployment-law 

judge (ULJ) that he is ineligible to receive unemployment benefits because he was 

discharged for employment misconduct and aggravated employment misconduct. We 

affirm.

FACTS

Tubbs was employed with respondent Minnesota Sex Offender Program (MSOP) 

as a security counselor from October 27, 2004, to September 5, 2013. In October of 

2011, Tubbs received a warning for violating MSOP’s “Tardiness and Failure to Report 

to Work Policy” by missing several days of work following his arrest for driving while 

intoxicated in September of 2011. Tubbs was also placed on a one-day unpaid 

suspension from work. By letter, MSOP advised Tubbs that any “further performance 

issues, policy/procedure violations, and/or engagement in misconduct . . . may result in 

further disciplinary action up to and including termination.”

On July 19, 2013, Tubbs called into work sick at approximately 1:30 a.m. Tubbs

was scheduled to work that day starting at 6:00 a.m. Sometime after Tubbs made the 

phone call to MSOP, he started drinking alcohol. Approximately twelve hours later, 

Tubbs called into work again and informed MSOP he would not be reporting to work the 

following day. Tubbs indicated that he may need to be taken off the schedule possibly 

into the next week. Shortly after making this call, Tubbs was picked up by North 

Mankato police officers pursuant to an “Apprehension and Detention” order (A&D 
3

Order). Tubbs was in violation of his probation condition prohibiting him from 

consuming alcohol. Tubbs’s probation officer Agent Neve had requested the assistance 

of police officers to bring Tubbs to Blue Earth County Jail after she was notified that he

had been drinking. The result of Tubbs’s preliminary breathalyzer test (PBT) indicated 

an alcohol concentration of .243. Tubbs was transferred to Brown County Detox due to 

his level of intoxication.

That same day, at approximately 6:00 p.m., Officer Price from the Mankato 

Department of Public Safety was dispatched to a harassment complaint reported by 

Tubbs’s ex-girlfriend, D.M. D.M. alleged that at around 3:00 a.m. that morning, Tubbs

entered her home without permission. D.M. told the officer that she eventually was able 

to get Tubbs to leave but that he began sending her unwanted text messages. Officer 

Price reviewed the text messages and noted that none of the messages were threatening. 

Officer Price observed that there were between thirty to fifty text messages from Tubbs to 

D.M., and D.M.’s responses to those messages in which D.M. repeatedly requested

Tubbs to stop texting her. 

Tubbs remained in detox for two days before he was transferred to Blue Earth 

County Jail. While in detox, Tubbs called MSOP Human Resources office to report that 

there were criminal charges pending against him pursuant to MSOP’s policy. Tubbs

indicated he did not know whether he would be going to jail or remain in detox. Tubbs

requested either sick leave or a personal leave of absence for an unspecified period of 

time.
4

On July 21, 2013, a Notice of Judicial Determination of Probable Cause to Detain 

Tubbs was signed based on the events involving D.M. Tubbs was charged by complaint 

with felony stalking, gross misdemeanor stalking through mail/delivery of 

letter/telegram/package, misdemeanor domestic assault, misdemeanor battery, and 

misdemeanor trespass. Tubbs was released from jail after posting bail on July 22, 2013.

On the day that Tubbs was released from jail, Human Resources Director Melissa 

Gresczyk sent Tubbs a letter informing him that he was placed on an unauthorized leave 

of absence. The letter explained that Tubbs’s July 19 request for sick leave through July 

25 was denied because Tubbs’s absence was due to his incarceration and was not 

necessitated by virtue of illness as set out in their policy. Tubbs was also informed that 

his request for a personal leave of absence was denied for the same reason. Two days 

later, MSOP received a fax from a Dr. Leah Breit of the Mankato Clinic indicating Tubbs

needed a medical leave of absence from July 19, 2013 to August 10, 2013. Tubbs was 

notified that a tentative medical leave of absence was granted for those dates pending the 

outcome of MSOP’s review.

A few weeks later, Tubbs received another letter from MSOP advising him that he 

would be placed on an unpaid leave of absence immediately. MSOP explained that on 

July 26, the Minnesota Department of Human Services (DHS) notified MSOP that Tubbs

did not pass his background study in accordance with the Minnesota Department of 

Human Services Background Study Act, Minn. Stat. §§ 245.01–.34. Specifically, in 

order to continue his employment at MSOP, Tubbs was required to pass DHS’s 
5

background check and retain licensing. Tubbs was placed on this unpaid leave of 

absence pending the timeframe for DHS appeals.

On September 5, 2013, Tubbs received a letter of termination of employment. The 

letter explained that the reasons for his termination included the unexcused absences on 

July 19 and 20, 2013, and his continued absence from work since July 19, 2013. The 

letter stated there were “serious criminal charges” pending against Tubbs making him

unable to perform his job as a direct result. MSOP indicated that the violation in 2011 

was taken into account when it made its decision.

Following his termination, Tubbs applied for unemployment benefits. The 

Minnesota Department of Employment and Economic Development (DEED) issued a 

determination of ineligibility and found that Tubbs was discharged for employment 

misconduct. Tubbs appealed the determination, and a ULJ conducted an evidentiary 

hearing.

On November 6, 2013, the ULJ issued a decision finding that Tubbs’s conduct on 

July 19, 2013 “interfered with his ability to perform his job duties and to report to work 

on July 20.” The ULJ noted MSOP’s policy prohibiting employees from engaging in any 

illegal activities and found that there was sufficient evidence in the record to support the 

conclusion that Tubbs had engaged in illegal activity. Moreover, the ULJ found that 

Tubbs’s absence on July 20 was a result of him violating his probation conditions. The 

ULJ determined that Tubbs was ineligible for unemployment benefits due to employment 

misconduct.
6

Tubbs filed a request for reconsideration. The ULJ issued an order on January 9, 

2014, affirming her decision. The ULJ modified her findings of fact, noting Tubbs’s 

diagnosis of chemical dependency in 2010 and Tubbs’s outpatient treatment from June 

2013 through August 2013. Nonetheless, the ULJ concluded that Tubbs’s “alcoholism 

did not cause him to trespass onto D.M.’s property,” and therefore the exception for 

conduct as a consequence of chemical dependency was not applicable. However, the 

ULJ did make a finding that Tubbs “did not indicate he was requesting a leave of absence 

because he was sick” when he made his second call to MSOP on July 19. The ULJ 

modified her decision to additionally find that Tubbs was discharged because of 

aggravated employment misconduct. 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 

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. 

2014 Minn. Laws, ch. 271, art. 1, § 1, at 1028-29 (to be codified at Minn. Stat. § 268.105, 

subd. 7(d) (2014)).

1

“Substantial evidence” is the relevant evidence that “a reasonable 

mind might accept as adequate to support a conclusion.” Moore Assoc. v. Comm’r of 

Econ. Sec., 545 N.W.2d 389, 392 (Minn. App. 1996).

 

1

See Braylock v. Jesson, 819 N.W.2d 585, 588 (Minn. 2012) (“When the Legislature 

merely clarifies preexisting law, the amended statute applies to all future or pending 

litigation.”).
7

The purpose of unemployment benefits is to assist those who are unemployed 

through no fault of their own. Minn. Stat. § 268.03, subd. 1 (2012). The statute is 

remedial in nature and must be applied in favor of awarding benefits, and any provision 

precluding receipt of the benefits must be narrowly construed. Minn. Stat. § 268.031, 

subd. 2 (2012).

I. The ULJ did not err by determining that Tubbs is ineligible for 

unemployment benefits because he was discharged for misconduct.

An employee who was discharged is eligible for unemployment benefits unless the 

discharge was for employment misconduct. Minn. Stat. § 268.095, subd. 4(1) (2012). 

“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.” 2014 Minn. Laws, ch. 239, art. 2, 

§ 5, at 772-73 (to be codified at Minn. Stat. § 268.095, subd. 6(a) (2014)). “Whether an 

employee committed employment misconduct is a mixed question of fact and law.” 

Skarhus v. Davanni’s Inc., 721 N.W.2d 340, 344 (Minn. App. 2006). Appellate courts 

review whether a particular act constitutes disqualifying misconduct de novo. Stagg v. 

Vintage Place Inc., 796 N.W.2d 312, 315 (Minn. 2011). But whether the employee 

committed misconduct is a fact question. Peterson v. Nw. Airlines Inc., 753 N.W2d 771, 

774 (Minn. App. 2008), review denied (Minn. Oct. 1, 2008). This court reviews the 

ULJ’s factual findings in the light most favorable to the decision. Stagg, 796 N.W.2d at 

315.
8

Tubbs argues that the ULJ erred by denying him unemployment benefits for 

reasons other than ones forming the basis for his termination as stated by MSOP. We 

disagree. The ULJ’s finding that Tubbs was terminated because of pending criminal 

charges, unexcused absences, and the inability to perform his duties as a direct result of 

the charges is supported by substantial evidence in the record. Moreover, MSOP

specifically referred to his pending criminal charges and his inability to perform his work 

duties as a direct result of those charges in its termination letter to Tubbs.

Tubbs also challenges the ULJ’s finding that he trespassed on the premises of 

D.M.’s property. Tubbs argues that the ULJ erroneously relied on hearsay evidence. The 

evidentiary standard in an unemployment hearing need not conform to the rules of 

evidence, and a ULJ may consider hearsay statements if they are deemed reliable. 2014 

Minn. Laws, ch. 251, art. 2, § 15, at 862 (to be codified at Minn. Stat. § 268.105, subd. 

1(b) (2014)); 39 Minn. Reg. 147,151,154 (Aug. 4, 2014) (to be codified at Minn. R. 

3310.2922 (Supp. 2014)). Moreover, unlike criminal proceedings, a ULJ is permitted to 

make factual determinations based on a preponderance of the evidence. Minn. Stat. 

§ 268.031, subd. 1 (2012) (stating“[a]ll issues of fact under the Minnesota 

Unemployment Insurance Law are determined by a preponderance of the evidence”). 

Here, the ULJ relied on charging documents and police reports in making her finding. 

The police report and statement of probable cause were based on an interview with a 

witness and enumerated observations made by the officer at the scene. The ULJ found 

these documents reliable. 
9

Additionally, Tubbs did not dispute the allegations against him at the 

unemployment hearing. As such, faced with the complaint on one hand and silence on 

the other, the ULJ could reasonably infer that the allegations in the complaint were likely 

true and that Tubbs likely trespassed on his ex-girlfriend’s property. See 39 Minn. Reg., 

at 154 (to be codified at Minn. R. 3310.2922) (permitting the ULJ to “draw adverse 

inferences from the refusal of a witness to testify on the basis of any privilege”). The 

ULJ’s finding that Tubbs trespassed on D.M’s property, thereby engaging in illegal 

conduct, is supported by substantial evidence in view of the entire record.

As previously stated, “misconduct” includes conduct that displays “a serious 

violation of the standards of behavior the employer has the right to reasonably expect of 

the employee.” 2014 Minn. Laws, ch. 239, art. 2, § 5, at 772-73 (to be codified at Minn. 

Stat. § 268.095, subd. 6(a)(1)). This definition requires an objective determination: 

“[W]as the employer’s expectation for the employee reasonable under the 

circumstances?” Jenkins v. Am. Exp. Fin. Corp., 721 N.W.2d 286, 290 (Minn. 2006). 

The ULJ concluded that MSOP had a reasonable right to expect its employees to refrain 

from engaging in criminal activity, and Tubbs’s illegal conduct was a serious violation 

constituting misconduct. We agree.

MSOP’s employment policy explicitly states that, “[e]mployees will not engage in 

any illegal activities.” This written policy was made known to all of its employees, 

including Tubbs. Tubbs was made further aware of this policy in 2011 following his

arrest and conviction. At that time, MSOP could have terminated his employment. 

Instead, Tubbs was given another opportunity and a warning that similar conduct could 
10

result in his discharge. Moreover, given the nature of Tubbs’s job as a security 

counselor, it was reasonable to expect that Tubbs refrain from illegal activities. Tubbs

violated MSOP’s policy when he trespassed on D.M.’s property, which led to the 

criminal charges against him. 

Tubbs also challenges the ULJ’s finding that his absence on July 20 was a result of 

violation of his probation conditions. “Whether 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. An 

employer has the right to create and enforce reasonable attendance policies, and an 

employee’s refusal to abide by these policies is generally employment misconduct. 

Wichmann v. Travalia & U.S. Directives, Inc., 729 N.W.2d 23, 28 (Minn. App. 2007). 

Here, MSOP had a right to reasonably expect Tubbs to remain law abiding. Tubbs

was taken to detox after he came into contact with police officers pursuant to an A&D 

order. The A&D order was issued by Tubbs’s probation officer because Tubbs violated

his probation conditions. Tubbs was unable to report to work on July 20 as a result. The 

record supports the ULJ’s finding that Tubbs’s absence on July 20 constitutes

employment misconduct.

Tubbs further argues that he was not “incarcerated” on July 20 within the meaning 

of the word in MSOP’s policy. Tubbs’s argument focuses on challenging MSOP’s 

contention that Tubbs requested sick leave even though he was incarcerated, in violation 

of MSOP’s policy. Tubbs’s argument, focusing on the MSOP policy, is misplaced.
11

The issue in unemployment-benefits proceedings is whether Tubbs’s conduct 

constitutes employment misconduct for the purpose of unemployment benefits, not 

whether the employer was justified in terminating the employment under its policy. 

Brown v. Nat’l Am. Univ., 686 N.W.2d 329, 333 (Minn. App. 2004), review denied

(Minn. Nov. 16, 2004). A former employee may be denied benefits for engaging in 

employment misconduct even if the conduct did not warrant termination under the 

employer’s policies. Stagg, 796 N.W.2d at 313. Here, it is undeniable that Tubbs made 

commendable efforts to remain in contact with MSOP and to comply with their reporting 

policies and expectations. However, for purposes of unemployment benefits, Tubbs’s

conduct leading to his inability to report to work on July 20 constituted a violation of the 

standards of behavior MSOP had a right to reasonably expect. Specifically, MSOP had a 

right to expect that Tubbs would not be absent from work because he was in detox and in 

violation of his probation conditions. Tubbs’s absence on July 20 constituted

employment misconduct.

Tubbs asserts that his absence on July 20 was a consequence of his chemical 

dependency. See 2014 Minn. Laws, ch. 239, art. 2, § 5, at 772-73 (to be codified at 

Minn. Stat. § 268.095, subd. 6(b)(9) (2014)) (stating that employment misconduct does 

not include “conduct that was a consequence of the applicant’s chemical dependency, 

unless the applicant was previously diagnosed 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”). Tubbs argues that, contrary to the ULJ’s 

finding that he was absent on that date because he violated his probation conditions, 
12

Tubbs was actually housed in a detoxification facility because of his chemical 

dependency.

But adopting Tubbs’s argument that his behavior of missing work was a 

“consequence of . . . chemical dependency” would result in an attenuated application of 

that statutory provision. Tubbs’s conduct of missing work stemmed from his unexcused 

absence, which in turn, stemmed from his act of violating his probation by consuming 

alcohol. In addition, the unemployment statutes make clear that behavior relating to DWI 

convictions that interferes with a person’s employment does not qualify under the 

chemical-dependency exception. See id. (to be codified at Minn. Stat. § 268.095, subd. 

6(c) (2014)) (“[R]egardless of [the above subsection], conduct 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.”). Tubbs’s conduct resulted from a probation 

violation following his conviction of DWI under Minn. Stat. § 169A.20 (2012). The 

ULJ’s finding is supported by the record.

Tubbs also argues that his absence on July 20 was due to his illness. See id. (to be 

codified at Minn. Stat. § 268.095, subd. 6(b)(7) (2014)) (stating that employment 

misconduct does not include “absence because of illness or injury of the applicant, with 

proper notice to the employer”). Tubbs argues that his level of intoxication presented a 

danger to his health and well-being. We find this argument without merit. There is no 

precedent supporting an argument that having an alcohol concentration at a level

requiring detoxification constitutes an “illness” under the statute.
13

II. The ULJ did not err by determining that Tubbs is ineligible for 

unemployment benefits because he was discharged for aggravated 

misconduct.

On reconsideration, the ULJ issued an order modifying her earlier decision to 

additionally find that Tubbs was discharged for aggravated employment misconduct. An 

employee who is discharged for aggravated employment misconduct is ineligible to 

receive unemployment benefits. Minn. Stat. § 268.095, subd. 4(2) (2012). “Aggravated 

employment misconduct” is “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.” Minn. Stat. 

§ 268.095, subd. 6a(a)(1) (2012). Tubbs argues that (1) there is insufficient information 

in the record to support the ULJ’s finding that Tubbs engaged in conduct amounting to a 

gross misdemeanor or felony; (2) the criminal charges against him did not substantially 

interfere with his employment or have a significant adverse effect on the employment; 

and (3) the record should be reopened to provide evidence of the ultimate dismissal of the 

felony and gross-misdemeanor charges against Tubbs.

The ULJ’s finding that Tubbs was discharged as a result of aggravated 

employment misconduct is supported by the record. Unlike the standard of proof in a 

criminal proceeding, a ULJ may assess whether the record shows by a preponderance of 

the evidence that Tubbs engaged in the commission of an act that amounted to a gross 

misdemeanor or felony. Minn. Stat. § 268.031 (2012). Here, the charging documents 

and police reports note Officer Price’s observation that Tubbs sent between thirty to fifty 

text messages to D.M. in which D.M. repeatedly requested Tubbs to stop texting her. As 
14

we discussed earlier, the ULJ found these documents reliable. Thus, there is sufficient 

evidence in the record to substantiate the ULJ’s determination that Tubbs engaged in 

conduct amounting to a gross misdemeanor or felony.

Tubbs also challenges the ULJ’s finding that his conduct substantially interfered 

with his employment or had a significant adverse effect on the employment. Here, it is 

undisputed that Tubbs’s conduct resulted in DHS disqualifying him from continuing his

employment at MSOP. MSOP has a right to reasonably expect that its employees would 

not be disqualified from their position of employment at MSOP. DHS required Tubbs to 

be licensed by DHS in order to perform essential job functions as a security counselor at 

MSOP. Tubbs’s conduct directly interfered with this requirement, causing him to 

become disqualified by DHS. The ULJ correctly determined that Tubbs was terminated 

for aggravated employment misconduct.

Finally, Tubbs requests that the record be supplemented with evidence of the 

ultimate dismissal of the felony and gross-misdemeanor charges against him. However, 

as discussed above, there is sufficient evidence to support the ULJ’s determination by a 

preponderance of the evidence that Tubbs engaged in conduct amounting to a gross 

misdemeanor or felony that substantially interfered with his employment. Thus, it is 

unlikely that evidence of the dismissal of the criminal charges would change the outcome 

of the ULJ’s decision as to a finding of aggravated misconduct. Moreover, Tubbs did not 

properly file a motion before this court to do so pursuant to Minnesota Rules of Civil 

Appellate Procedure 127. See also Stephens v. Bd. of Regents of Univ. of Minn., 614 

N.W.2d 764, 769–70 (Minn. App. 2000), review denied (Minn. Sept. 26, 2000) (denying 
15

appellant’s request to supplement the record by brief rather than filing a motion pursuant 

to Minn. R. Civ. App. P. 127). We therefore deny Tubbs’s request to supplement the 

record.

Affirmed.