Christine M. Berglund, Relator v. Kozlak's Royal Oak Rest Inc., Department of Employment and Economic Development ( 2015 )


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  •                         This opinion will be unpublished and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
    A14-1301
    Christine M. Berglund,
    Relator,
    vs.
    Kozlak’s Royal Oak Rest Inc.,
    Respondent,
    Department of Employment and Economic Development,
    Respondent.
    Filed June 15, 2015
    Reversed
    Hooten, Judge
    Department of Employment and Economic Development
    File No. 32482423-3
    Laura Melnick, Samantha Clawson, Law Offices of Southern Minnesota Regional Legal
    Services, Inc., St. Paul, Minnesota (for relator)
    Kozlak’s Royal Oak Restaurant, Inc., Shoreview, Minnesota (respondent employer)
    Lee B. Nelson, Munazza Humayun, Department of Employment and Economic
    Development, St. Paul, Minnesota (for respondent department)
    Considered and decided by Hooten, Presiding Judge; Schellhas, Judge; and
    Klaphake, Judge.
    
    Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
    Minn. Const. art. VI, § 10.
    UNPUBLISHED OPINION
    HOOTEN, Judge
    Relator challenges the determination by an unemployment law judge (ULJ) that
    she is ineligible for unemployment benefits because she was discharged for employment
    misconduct, arguing that: (1) the ULJ’s findings of fact are not supported by substantial
    evidence in the record; and (2) the ULJ erred by applying an incorrect legal standard to
    determine whether relator made consistent efforts to control her chemical dependency.
    We reverse.
    FACTS
    Relator Christine M. Berglund was an employee of respondent Kozlak’s Royal
    Oak Rest Inc. (Kozlak’s) from July 2000 until January 25, 2014. After Berglund’s
    employment ended, she applied for unemployment benefits with respondent Minnesota
    Department of Employment and Economic Development (DEED).                DEED initially
    determined that she was ineligible for unemployment benefits because she was
    discharged for employment misconduct. Berglund appealed this determination, and a
    ULJ held a telephonic hearing at which Berglund and her former manager, L.S., testified
    to the following.
    Throughout her 13-year employment with Kozlak’s restaurant, Berglund worked
    part-time as a server.   On January 25, 2014, Berglund reported to work under the
    influence of alcohol. At an employee meeting, Berglund interrupted L.S. multiple times.
    Later that evening, two employees came up to L.S. and told her that they suspected that
    Berglund was intoxicated. L.S. observed Berglund “stumbling in the kitchen,” so she
    2
    took Berglund aside and confronted her about her intoxication.         When L.S. asked
    Berglund for her keys, Berglund “got belligerent.” She “started yelling and screaming”
    at L.S., using profanity within earshot of customers. An employee “grabbed [Berglund]
    lightly by the forearm” to try to get her into the kitchen, and Berglund “started swinging
    punches” at the employee. L.S. believed that Berglund struck the employee on the arm.
    L.S. then called the police. Police officers eventually arrived and drove Berglund home.
    L.S. wrote up an “Employee Termination Notice” that night, which stated that the
    date of termination was January 25, 2014. The “[r]eason for termination” listed on the
    form was “[i]nsubordination.” L.S. provided a detailed description of the incident on the
    form. Berglund testified that her memory of the incident was not very detailed. She
    admitted that she was “quite intoxicated,” which was why she did not “really remember
    exactly how everything happened.” L.S. testified that a provision in Kozlak’s employee
    handbook provided that, if an employee came to work under the influence of alcohol, it
    was grounds for “immediate dismissal.”          Berglund testified that she received the
    handbook back in 2000 and was aware of this provision.
    The next morning, Berglund called Kozlak’s because “she wanted to know if she
    was fired.” L.S. was not on duty that morning, but Berglund talked to another manager.
    L.S. testified that the manager told Berglund to call back later when L.S. was working.
    L.S. testified that Berglund never called back or came in to discuss the incident.
    Berglund testified that she did not call L.S. back and never called anyone at Kozlak’s to
    discuss her employment because she felt “really embarrassed” about the incident and she
    “assumed that [she had] been fired.”
    3
    When the ULJ asked Berglund, “Did you quit or were you discharged[?]”
    Berglund stated that she was discharged. She noted, however, that nobody from Kozlak’s
    ever told her that she was discharged.     L.S. testified that Berglund was discharged
    because she was “drunk and disorderly” during work hours. However, L.S. testified that
    nobody ever told Berglund she was discharged. L.S. also testified: “I guess I assume
    when you come in [to work intoxicated], you start fighting with employees . . . I guess I
    just assumed she knew [she was fired], and she never called me back and asked the
    question . . . .”
    Berglund testified that her conduct on January 25 was a consequence of her
    alcohol dependency.     In a brief letter dated May 5, 2014, Berglund’s primary care
    physician stated that Berglund had “been struggling with chemical dependency of alcohol
    formally diagnosed in July 2012” and that she was “prescribed a treatment program at
    that time.”     Consistent with this letter, Berglund testified that her physician first
    diagnosed her as chemically dependent on alcohol in July 2012. But, Berglund testified
    that she did not think that she was prescribed “a treatment program” at that time by her
    physician to address her chemical dependency. Berglund never told Kozlak’s that she
    was chemically dependent or asked for a leave of absence in order to enter treatment.
    There is no evidence in the record that, prior to the January 2014 incident, Berglund’s
    chemical-dependency issues interfered with her ability to work and, in fact, her
    supervisor testified that she was unaware that Berglund had a chronic chemical-
    dependency problem.
    4
    Additional medical evidence was introduced into the record regarding Berglund’s
    efforts to control her chemical dependency. On August 26, 2013, Berglund saw her
    physician for her annual physical examination. The clinical notes from this visit listed
    alcohol abuse as one of Berglund’s assessed problems. The treatment plan from this visit
    stated, in relevant part: “[Counseling] to help with all of your new adjustments and
    drinking.” After the August 2013 visit, Berglund began seeing a psychologist for her
    alcohol dependency. Berglund received counseling from her psychologist a total of nine
    times between August 2013 and the January 2014 incident. The therapy focused on
    cognitive and behavioral issues, such as Berglund understanding how she could stop
    drinking, understanding why she was drinking, finding a safe way to quit drinking,
    finding other activities to replace drinking, and finding social supports to help her stay
    sober. Berglund testified that her psychologist had advised her that she should not quit
    drinking immediately but, in order to avoid the harsh effects of detoxification, she should
    “try and wind down” her drinking. During the course of Berglund’s treatment with her
    psychologist, there was no indication that her psychologist or any other medical provider
    recommended that she attend a formal inpatient or outpatient chemical-dependency
    treatment program or Alcoholics Anonymous.
    Berglund testified that, during the five months that she treated with her
    psychologist, she was able to decrease the level of her consumption of alcohol. She
    acknowledged that she “was not totally abstinent,” but stated that she “was doing [her]
    best to refrain from drinking” every day. Vodka was her drink of choice. For a few
    weeks in December 2013, she tried switching from vodka to beer in order to “try to get
    5
    [herself] off'” vodka. She stated that, prior to August 2013, she was consuming two 1.75-
    liter bottles of vodka every five to six days. After August 2013, she was consuming
    roughly four to five drinks per day.
    The ULJ issued an order denying Berglund unemployment benefits on the basis
    that she was discharged due to employment misconduct, such misconduct was a
    consequence of her chemical dependency, and she failed to make consistent efforts to
    control her chemical dependency. The ULJ found that, during the time that Berglund was
    treated by her psychologist, she increased, rather than decreased, her consumption of
    alcohol, but failed to tell her psychologist of this increase. The ULJ rejected Berglund’s
    testimony that none of her doctors had recommended that she attend a formal chemical-
    dependency treatment program, claiming that such testimony was inconsistent with the
    evidence received at the hearing. While the ULJ found that Berglund made “some
    efforts” to control her chemical dependency, she concluded that she did not make
    “consistent efforts” to do so. The ULJ found that her efforts to control her chemical
    dependency “were inconsistent without evidence of any period of cessation in [her]
    consumption of alcohol” and that her level of chemical abuse never “reached any
    acceptable level or ceased being a problem at any time.”
    On reconsideration, the ULJ affirmed her decision.          The ULJ found that
    Berglund’s claim that she made consistent efforts to control her chemical dependency
    was “not plausible.”     The ULJ pointed out that there was no evidence that her
    psychologist had “knowledge, education and training in chemical dependency treatment”
    or that she “developed a comprehensive plan to treat Berglund’s physical addiction as
    6
    well [as her] psychological problems.” The ULJ emphasized the limitations and lack of
    detail in the psychologist’s letters about Berglund’s alleged consistent efforts. The ULJ
    now found that Berglund failed to show that she made “any effort” to cease her
    consumption of alcohol. This certiorari appeal followed.
    DECISION
    The purpose of chapter 268 is to assist those who are unemployed through no fault
    of their own. 
    Minn. Stat. § 268.03
    , subd. 1 (2014). The chapter is remedial in nature and
    must be applied in favor of awarding benefits, and any provision precluding receipt of
    benefits must be narrowly construed. 
    Minn. Stat. § 268.031
    , subd. 2 (2014). “An
    applicant’s entitlement to unemployment benefits must be determined based upon [the]
    information available without regard to a burden of proof.” 
    Minn. Stat. § 268.069
    , subd.
    2 (2014).
    We review a ULJ’s decision to determine whether a relator’s substantial rights
    have been prejudiced by legal errors, findings or conclusions not supported by substantial
    evidence, or a decision that is arbitrary and capricious. 
    Minn. Stat. § 268.105
    , subd.
    7(d)(3)–(6) (2014). Substantial evidence means “such relevant evidence as a reasonable
    mind might accept as adequate to support a conclusion.” Carter v. Olmsted Cnty. Hous.
    & Redev. Auth., 
    574 N.W.2d 725
    , 730 (Minn. App. 1998) (quotation omitted).
    “Substantial evidence means more than a scintilla of evidence, ‘some’ evidence, or ‘any’
    evidence.” 
    Id.
     “An appellate court will exercise its own independent judgment in
    analyzing whether [a relator] is entitled to unemployment benefits as a matter of law.”
    7
    Irvine v. St. John’s Lutheran Church of Mound, 
    779 N.W.2d 101
    , 103 (Minn. App.
    2010).
    “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) (quotation omitted).             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 and whether an exception applies. See 
    id.
    In general, an employee who is discharged by an employer for employment
    misconduct is ineligible for unemployment benefits. 
    Minn. Stat. § 268.095
    , subds. 4, 6
    (2014).    “Employment misconduct means 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.” 
    Id.,
     subd. 6(a). Notwithstanding
    this general definition, employment misconduct does not include “conduct that was a
    consequence of the [relator’s] chemical dependency, unless the [relator] 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
    8
    dependency.” 
    Id.,
     subd. 6(b)(9). Berglund claims that she falls under this chemical-
    dependency exception to the employment-misconduct rule.1
    For Berglund to meet the chemical-dependency exception under the statute, the
    evidence must show that: (1) she was discharged because of employment misconduct;
    (2) the employment misconduct was a consequence of her chemical dependency; (3) she
    was previously diagnosed as chemically dependent or had treatment for chemical
    dependency; and (4) she made consistent efforts to control the chemical dependency
    since the diagnosis or treatment. See 
    Minn. Stat. § 268.095
    , subds. 4(1), 6(a), 6(b)(9).
    Berglund does not challenge the ULJ’s conclusion that her conduct on January 25, 2014,
    meets the general definition of employment misconduct and that she was discharged for
    such misconduct. Nor does Berglund challenge the ULJ’s implicit conclusion that the
    employment misconduct was a consequence of her chemical dependency.                Instead,
    Berglund contends that the ULJ incorrectly concluded that she failed to make consistent
    efforts to control her chemical dependency, which led the ULJ to incorrectly determine
    that she did not meet the chemical-dependency exception.
    1
    Berglund does not challenge the ULJ’s finding that she was discharged. In its brief,
    DEED does not respond to Berglund’s arguments in her brief, but instead argues that,
    because Berglund quit and was not discharged, she is ineligible for employment benefits.
    DEED asks this court to either modify the ULJ’s decision or to remand for the ULJ to
    reconsider the issue of whether Berglund quit or was discharged. DEED’s request is
    improper for two reasons. First, the Commissioner of DEED failed to request
    reconsideration within 20 days of the ULJ’s initial decision, as required under 
    Minn. Stat. § 268.105
    , subd. 2 (2014). Second, as a result, DEED is not a “petitioner” under section
    268.105, subd. 7(d), and therefore is not entitled to appellate relief. Accordingly, for
    purposes of this opinion, we accept the ULJ’s determination that Berglund was
    discharged from her employment as a result of the incident on January 25, 2014.
    9
    Relying on Moeller v. Minnesota Dep’t of Transp., Berglund argues that the ULJ
    applied the wrong legal standard by focusing on results rather than on Berglund’s efforts
    to control her chemical dependency. 
    281 N.W.2d 879
     (Minn. 1979). At the time Moeller
    was decided, Minnesota’s unemployment-insurance statute recognized an exception to
    the employment-misconduct rule if the misconduct was “due to [the relator’s] own
    serious illness” and the relator “ha[d] made reasonable efforts to retain his employment.”
    See 
    Minn. Stat. § 268.09
    , subd. 1(b) (1978). The supreme court stated that “[a]lcoholism
    is a chronic illness characterized by remissions and exacerbations. . . . Given the nature
    of the disease, it is unreasonable to require the [relator] to maintain total abstinence even
    after he enters treatment.” Moeller, 281 N.W.2d at 882 (citation omitted). A year later,
    the Minnesota Legislature codified this rule into the statute. Leslin v. Cnty. of Hennepin,
    
    347 N.W.2d 277
    , 279 (Minn. 1984). Seven years after Moeller, the supreme court
    clarified: “Although the statute does not require an individual [to] totally abstain from
    alcohol or achieve total success in treatment, the individual must make consistent efforts
    to control his illness. The focus is upon an individual’s efforts, not his results.” Umlauf
    v. Gresen Mfg., 
    393 N.W.2d 198
    , 200 (Minn. 1986) (emphasis added) (citation omitted).
    Here, the ULJ initially found that Berglund “made some efforts to control her
    chemical dependency,” “attended counseling,” and “saw the counselor on nine occasions
    during the period [of] August 26, 2013 to January 25, 2014.”               But, in denying
    unemployment benefits, the ULJ concluded that Berglund’s “efforts to control her
    chemical dependency were inconsistent without evidence of any period of cessation in
    Berglund’s consumption of alcohol.” The ULJ also stated that there was “no evidence of
    10
    a cessation in Berglund’s consumption of alcohol for any substantial period.”
    Inexplicably, in her order of affirmation, the ULJ found that “[t]here was insufficient
    evidence that Berglund made any effort to cease her consumption of alcohol during any
    period.” (Emphasis added.) By focusing upon the results of Berglund’s treatment, rather
    than Berglund’s efforts in controlling her chemical dependency, the ULJ erred as a matter
    of law by requiring that there be a period of cessation. See id.; see also Moeller, 281
    N.W.2d at 882.
    Moreover, the ULJ’s finding that “Berglund’s level of chemical abuse was not
    shown to have reached any acceptable level or ceased being a problem at any time” also
    emphasizes results over efforts. Not only was this conclusion inappropriately focused
    upon the results of Berglund’s treatment, but it was also based upon the assumption that
    Berglund’s level of alcohol consumption actually increased during the five months that
    she received treatment from her psychologist prior to her discharge. Yet, at the hearing,
    Berglund testified that, during this period, her alcohol use actually “went down.” When
    the ULJ pressed her for specifics, Berglund testified that her drinking decreased from two
    1.75-liter bottles of vodka every five to six days, to four to five drinks of vodka per day.
    Because Berglund’s testimony was the only evidence regarding the level of her
    consumption of alcohol during the five months that she treated with her psychologist, and
    there is nothing in the record to support the ULJ’s determination that Berglund increased
    her consumption during this period, we conclude that the ULJ’s determination is
    unsupported by substantial evidence.
    11
    In reviewing Berglund’s efforts to control her chemical dependency, the record
    demonstrates that, since her August 2013 assessment, she followed up with her
    physician’s referral and recommendation that she seek counseling. Over the course of the
    next five months, she underwent nine sessions of cognitive-behavioral therapy with her
    psychologist for her alcohol dependency, which focused on how Berglund could stop
    drinking alcohol safely.   The therapy also focused on helping Berglund find other
    activities to replace drinking and finding the social supports she needed to become and
    remain sober. There is nothing in the record indicating that Berglund failed to attend
    these scheduled counseling sessions or that her psychologist was dissatisfied with
    Berglund’s efforts during this period of treatment. And, consistent with Berglund’s
    testimony that she was to gradually decrease her drinking, there is nothing in the
    psychologist’s medical report that indicates that Berglund was told to stop drinking prior
    to her discharge.
    Although the ULJ was critical of the treatment provided to Berglund, there is no
    evidence that her psychologist, who was licensed, was unqualified to render counseling
    for chemical-addiction problems.      And, consistent with Berglund’s testimony and
    contrary to the determination of the ULJ, there is no indication in the months prior to
    Berglund’s discharge that either her psychologist or her physician recommended that she
    attend a formal inpatient or outpatient chemical-dependency treatment program. In a
    very brief May 2014 letter, her physician noted that Berglund was diagnosed with
    chemical dependency in July 2012 and that “a treatment program” was recommended for
    her at that time. The letter also noted that, during the August 2013 assessment, she
    12
    recommended that Berglund “restart cognitive therapy and alcohol treatment program.”
    Her physician’s contemporaneous clinical notes from the August 2013 assessment
    indicate that she referred Berglund for “[counseling] to help with all of [her] new
    adjustments and drinking,” but there is no referral or recommendation in the clinical
    notes regarding a formal inpatient or outpatient chemical-dependency treatment program.
    Consistent with her physician’s clinical notes, shortly after this August 2013 referral,
    Berglund began treating with a psychologist for her chemical-dependency issues. The
    psychologist observed in her May 15, 2014 letter that it was only after Berglund’s
    discharge from employment that she “recommended total abstinence from alcohol with in
    or out patient treatment if needed.” (Emphasis added.) We agree with Berglund that her
    physician’s cursory letter referring to “cognitive therapy and alcohol treatment program,”
    when coupled with the physician’s clinical notes referring Berglund only to counseling,
    fails to support the ULJ’s determination that Berglund’s testimony was inconsistent with
    these medical records. See Carter, 
    574 N.W.2d at 730
     (“Substantial evidence means
    more than a scintilla of evidence” and must be “such relevant evidence as a reasonable
    mind might accept as adequate to support a conclusion.” (Quotation omitted.)).
    In her initial decision, the ULJ found that Berglund made “some efforts” to control
    her chemical dependency, but nonetheless denied her unemployment benefits. The
    primary basis for the ULJ’s decision was based on an error of law, that a total cessation
    of alcohol use was necessary in order to find “consistent efforts,” and on unsubstantiated
    findings that Berglund had increased her level of alcohol consumption during the five
    months prior to her discharge and had failed to attend an inpatient or outpatient treatment
    13
    program that had been recommended by her treatment providers.             In her order of
    affirmation, the ULJ found that there was insufficient evidence that Berglund made “any
    effort” to cease her consumption of alcohol during any period and was critical of
    Berglund’s treatment providers and their recommendations or lack of recommendations.
    The ULJ failed to explain why she found that Berglund made “some efforts” to control
    her chemical dependency in the initial decision, but then determined that she did not
    make “any effort” to control her chemical dependency in the order of affirmance.
    Although Berglund’s treatment providers perhaps should have recommended that
    she attend a formal inpatient or outpatient treatment program, it is not the role of the ULJ
    or this court to second-guess the treatment recommendations of medical and mental-
    health professionals. Rather, the ULJ’s charge was to determine whether Berglund made
    consistent efforts to control her chemical dependency, which would include a
    determination of whether she had cooperated with her treating physician and psychologist
    and followed up with their recommendations during the five months prior to her
    discharge from employment. Although Berglund had a relapse, which resulted in her
    discharge, there was no evidence that she failed to cooperate with her treatment
    professionals or failed to follow up with any recommended treatment. And, consistent
    with the goals set out for her by her psychologist, she decreased her consumption of
    alcohol over the five-month period prior to her discharge from employment. The ULJ
    erred by focusing upon Berglund’s results, rather than her efforts, and the ULJ’s
    conclusion that Berglund failed to make consistent efforts to control her chemical
    dependency is not supported by substantial evidence.         Because Berglund meets the
    14
    chemical-dependency exception to the employment-misconduct rule, we determine that
    she is entitled to unemployment benefits as a matter of law. See Irvine, 
    779 N.W.2d at 103
    .
    Reversed.
    15