This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).







Gary G. Rubbelke





BTD Investments, Inc.,



Commissioner of Economic Security,




Filed July 11, 2000


Anderson, Judge


Department of Economic Security

File No. 287699



Gary G. Rubbelke, 5838 Tioga Street, Duluth, MN  55804 (pro se-relator)


Shawn Brent Reed, 31 West Superior Street, #402, Duluth, MN  55802

(for respondent)


Kent E. Todd, 390 North Robert Street, St. Paul, MN  55101 (for Commissioner)



            Considered and decided by Crippen, Presiding Judge, Amundson, Judge, and


Anderson, Judge.

U N P U B L I S H E D   O P I N I O N


Relator Gary Rubbelke challenges the Commissioner of Economic Security’s decision to disqualify him from receiving reemployment insurance benefits.  Relator argues that he was fired for reasons other than misconduct.  Because the commissioner’s representative did not err in finding that relator’s employer, BTD Investments, terminated relator for misconduct, we affirm.  


            Relator Gary Rubbelke was the general manager of the Spirit Mountain Lodge owned by BTD investments.  On May 1, 1999, Terry Anderson, one of BTD’s partners, saw a lodge employee holding a baggie that appeared to contain marijuana.  Anderson called Rubbelke at home and ordered Rubbelke to investigate the situation. 

When Rubbelke arrived at the lodge he learned that a maintenance worker had found a baggie containing what appeared to be a small amount of marijuana in one of the guest rooms.  The maintenance worker threw the baggie into the dumpster behind the lodge.  Rubbelke, apparently wanting to verify that the employees had actually disposed of the baggie, went to the dumpster to look for the baggie.  Rubbelke found the baggie at the bottom of the dumpster, put it into his pocket and the left the lodge.  

Rubbelke then went to pick up his wife at a store.  On their way home the Rubbelkes stopped at a gas station.   As Rubbelke pumped gas, his wife went next door to the liquor store.  Rubbelke’s wife emptied the trash from the car including the baggie into a trash can located outside the liquor store.  

After Rubbelke returned home he called Terry Anderson to explain the incident at the lodge.  Anderson called his attorney to make sure that Rubbelke had handled the incident properly.  Anderson’s attorney warned him that Rubbelke’s actions could have potential criminal ramifications.  Anderson then called Rubbelke, accused him of lying and being involved in a drug deal with the employees, and demanded to know where Rubbelke disposed of the baggie.  Rubbelke told Anderson that he disposed of the baggie at a gas station on London Road.   Anderson asked for the exact location of the trash can, but Rubbelke said he did not know.   After Rubbelke got off the phone with Anderson, Rubbelke’s wife told him that she had thrown the baggie in the trash can outside of the liquor store.  Rubbelke did not call Anderson back and tell him this information. 

On May 3, 1999, Anderson sent a termination letter to Rubbelke’s home, stating that he was terminated for illegal transportation of a controlled substance.  Rubbelke established a reemployment insurance benefits account with the Minnesota Department of Economic Security (department).  The department determined that Rubbelke was terminated for reasons other than misconduct.  BTD appealed and a reemployment insurance judge affirmed the department’s decision.  BTD appealed the reemployment insurance judge’s decision and the commissioner’s representative reversed the decision, finding that Rubbelke was discharged for misconduct.   



In reemployment insurance cases, this court will not overturn the commissioner's representative’s findings of fact if there is evidence in the record that reasonably tends to support the findings.  McGowan v. Executive Express Transp. Enter., Inc., 420 N.W.2d 592, 594 (Minn. 1988).  The ultimate question of whether an employee’s actions constitute misconduct is a question of law upon which this court is “free to exercise its independent judgment.”  Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).



Rubbelke argues that the record does not support some of the commissioner’s representative’s findings.  Specifically, Rubbelke argues that the following facts cited by the commissioner’s representative are unsupported by the record:

1.      That Anderson’s strong reaction to what he had seen in the lodge, coupled with Anderson’s accusations that Rubbelke was involved in drug dealings, so alarmed Rubbelke that he dug up the baggie from the dumpster.


2.      Rubbelke intended to remove the baggie from lodge premises and disposed of it at a location where it would not be found.


3.      Rubbelke’s removal of the baggie was not inadvertent.


The record does not support the finding that Rubbelke took the baggie from the dumpster because he was accused of dealing drugs.  The record shows that Anderson accused Rubbelke of involvement in a drug transaction during the second phone conversation, after Rubbelke had removed the baggie from the dumpster and after the baggie had been thrown away.  Rubbelke took the baggie out of the dumpster before Anderson accused him of being part of a drug transaction; therefore Anderson’s accusation could not have been the impetus for Rubbelke’s decision to take the baggie out of the dumpster.[1]  Despite this error, the record supports the additional findings of the commissioner’s representative.

            The record supports the findings that Rubbelke purposely removed the baggie and intended to dispose of the baggie at a location where it would not be found.  In his statement to the Department of Economic Security, Rubbelke stated that he took the baggie from the dumpster out of concern for his employees, who might be wrongfully accused of drug use or drug dealing.  Had Anderson or the police attempted to find the baggie in the dumpster they would have been unsuccessful because Rubbelke took the baggie out of the dumpster and off the lodge premises.  Rubbelke’s own statement indicates that he purposely removed the baggie and disposed of it off-premises so that it would not be found.


An employee who is discharged for misconduct is disqualified from receiving reemployment insurance benefits.  Minn. Stat. § 268.095, subd. 4 (1)(1998).  The employer must establish by the greater weight of the evidence that the employee was guilty of the misconduct charged.”  Lumpkin v. North Central Airlines, Inc., 296 Minn. 456, 459-60, 209 N.W.2d 397, 400 (1973).

In pertinent part the definition of misconduct reads:

Intentional conduct showing a disregard of:

(1)  the employer’s interest;

(2)  the standards of behavior that an employer has the right to expect of the employee; or

(3)  the employee’s duties and obligations to the employer.


Minn. Stat. § 268.095 subd. 6 (1998).  Rubbelke’s termination letter states that he was terminated for illegal transportation of a controlled substance.  The commissioner’s representative held that regardless of the contents of the baggie, Rubbelke was terminated for misconduct “because of the chain of events that began when Rubbelke retrieved the baggie from the lodge dumpster and ended with Rubbelke’s refusal to tell Anderson exactly where he finally disposed of it.”  Appellant contends that his act of removing the baggie from the lodge property was unintentional and inadvertent, and that it did not rise to the level of misconduct.  

Rubbelke showed disregard for his employer’s interests when he removed the baggie to protect the employees.  Anderson, at least with regard to this specific inquiry, made a reasonable request and Rubbelke’s failure to accurately respond to Anderson’s question showed disregard for his employer’s interest.  In general, if an employer’s request is reasonable, the employee’s refusal to comply with the request constitutes misconduct.  Soussi v. Blue & White Serv. Corp., 498 N.W.2d 316, 318 (Minn. App. 1993).  Dishonesty connected with one’s employment may constitute misconduct.  See Baron v. Lens Crafters, Inc., 514 N.W.2d 305, 308 (Minn. App. 1994) (misconduct when employee falsely claimed that he had completed training store employee); Cherveny v. 10,000 Auto Parts, 353 N.W.2d 685, 688 (Minn. App. 1984) (misconduct when employee lied to employer about stealing goods from the employer).

Rubbelke’s actions in digging the baggie out of the garbage and taking it off lodge premises to protect the employees and the series of events that followed showed disregard for his employer’s interests.


[1] There is no evidence anywhere in the record supporting Anderson’s wild accusation that Rubbelke was ever involved in any drug transaction.