This opinion is nonprecedential except as provided by Minn. R. Civ. App. P. 136.01, subd. 1(c).
STATE OF MINNESOTA IN COURT OF APPEALS A24-1807
Ger Xiong, Relator,
vs.
Quality Extrusion, Respondent,
Department of Employment and Economic Development, Respondent.
Filed August 18, 2025 Affirmed Bentley, Judge
Department of Employment and Economic Development File No. 50969633-2
Ger Xiong, Janesville, Minnesota (self-represented relator)
Quality Extrusion, Mankato, Minnesota (respondent employer)
Keri A. Phillips, Katrina Gulstad, Minnesota Department of Employment and Economic Development, St. Paul, Minnesota (for respondent department)
Considered and decided by Larson, Presiding Judge; Larkin, Judge; and Bentley,
Judge.
NONPRECEDENTIAL OPINION
BENTLEY, Judge
Relator Ger Xiong challenges the determination of an unemployment-law judge
(ULJ) that Xiong was ineligible for unemployment benefits because he was discharged from his job for employment misconduct. Because the ULJ’s decision is supported by
substantial evidence, we affirm.
FACTS
Xiong worked at Quality Extrusion LLC as a machine operator from May 15, 2024,
until his discharge on July 11, 2024. He worked on a small team to “[c]reate polyethylene
film rolls and work orders to ship to customers.” After Xiong was discharged, he applied
for unemployment benefits. His application was denied because respondent Department of
Employment and Economic Development determined that he was discharged for
employment misconduct and was thus ineligible for benefits. Xiong requested a hearing
before a ULJ, which occurred in August 2024. The following summary is based on the
testimony and exhibits received at that hearing, as well as the ULJ’s decision.
Manager’s Testimony
A manager at Quality Extrusion testified as follows. Quality Extrusion expects
employees who will be absent or late to call an hour before the shift begins and talk to the
supervisor on duty. Xiong repeatedly had issues with attendance, and he consistently called
in. Between May 22, 2024, and June 6, 2024, Xiong was absent three times and was two
hours late once because of car troubles. He called in each time. And on June 19, 2024,
Xiong left an hour and a half into his shift to change his shirt but did not return to work
despite the employer’s expectation that he would.
On July 2, 2024, Quality Extrusion held a review meeting with Xiong. Xiong was
told that Quality Extrusion “needed him here” and that he had “missed a few days already.”
2 But the next week, Xiong missed three days of work—July 8, 9, and 10, 2024—because
he was in jail.
On July 11, 2024, Quality Extrusion discharged Xiong because of his attendance
issues. The manager emphasized that “dependability is very important” to Quality
Extrusion, as there are only three to four employees on a shift. He also clarified that the
reason for the discharge was not because Xiong was arrested or accused of a crime. Quality
Extrusion discharged Xiong because of his tardiness and absence, as Quality Extrusion
needs “to have people here.”
Xiong’s Testimony
Xiong testified as follows. Xiong believed he was discharged because he was a
probationary employee and could be discharged for any reason or no reason. He
acknowledged that his discharge might have been related to his attendance, except that he
had communicated about his absences and tardiness. He did not dispute that he was late to
or missed work on occasions. And he acknowledged that none of his absences were for
illness.
Xiong also explained his arrest in July, which caused his final three absences. The
details of the arrest are not relevant to the issue on appeal. Each day that Xiong missed
work while he was in jail, his girlfriend called in to Quality Extrusion. When Xiong was
bailed out, he was ready to go back to work, but a manager called him to say that “they
wouldn’t need [him] anymore.”
3 ULJ Decision
After the hearing, the ULJ issued a decision determining that Xiong was ineligible
for unemployment benefits because he was discharged for employment misconduct.
Specifically, the ULJ determined that Xiong was discharged “due to repeated absences”
between May 2024 and July 2024 and that he was not discharged because of his July 2024
arrest. The ULJ explained that it found the manager’s testimony credible “because it was
based on firsthand knowledge and consistent with documents submitted prior to the
hearing.” Xiong requested reconsideration of the decision, and the ULJ affirmed.
Xiong appeals by writ of certiorari.
DECISION
Xiong challenges the ULJ’s determination that he was discharged because of
attendance-related employment misconduct and is therefore ineligible for unemployment
benefits. He argues that he followed company policy when he was absent or tardy, and that
he was discharged for no reason other than that he was a probationary employee. The
Department of Employment and Economic Development argues that the ULJ’s decision is
supported by substantial evidence.
When reviewing a ULJ’s decision, we may affirm the decision or remand for further
proceedings. Minn. Stat. § 268.105, subd. 7(d) (2024). Alternatively, we may reverse or
modify a ULJ’s decision if, among other things, the decision is “unsupported by substantial
4 evidence in view of the hearing record.” 1 Id., subd. 7(d)(5). Substantial evidence is
“(1) such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion; (2) more than a scintilla of evidence; (3) more than some evidence; (4) more
than any evidence; or (5) the evidence considered in its entirety.” Dourney v. CMAK Corp.,
796 N.W.2d 537, 539 (Minn. App. 2011) (quoting Minn. Ctr. for Env’t Advoc. v. Minn.
Pollution Control Agency, 44 N.W.2d 457, 466 (Minn. 2002)). We review the ULJ’s
factual findings in the light most favorable to the decision and defer to the ULJ’s credibility
determinations. Peterson v. Nw. Airlines Inc., 753 N.W.2d 771, 774 (Minn. App. 2008),
rev. denied (Minn. Oct. 1, 2008).
An employee is ineligible for unemployment benefits if they were “discharged
because of employment misconduct.” Minn. Stat. § 268.095, subd. 4(1) (2024).
“Employment misconduct means any intentional, negligent, or indifferent conduct, on the
job or off the job, that is a serious violation of the standards of behavior the employer has
the right to reasonably expect of the employee.” Id., subd. 6(a) (2024). But “employment
misconduct” excludes “simple unsatisfactory conduct”; “absence because of illness or
injury of the applicant, with proper notice to the employer”; and “absence, with proper
notice to the employer, in order to provide necessary care because of the illness, injury, or
disability of an immediate family member of the applicant.” Id., subd. 6(b)(3), (7)-(8)
(2024). “Whether an employee’s absenteeism and tardiness amounts to a serious violation
1 We construe Xiong’s brief to argue that the ULJ’s decision was unsupported by substantial evidence. Although he does not use that phrase, he argues that the evidence before the ULJ would support a conclusion that he did not engage in employment misconduct.
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This opinion is nonprecedential except as provided by Minn. R. Civ. App. P. 136.01, subd. 1(c).
STATE OF MINNESOTA IN COURT OF APPEALS A24-1807
Ger Xiong, Relator,
vs.
Quality Extrusion, Respondent,
Department of Employment and Economic Development, Respondent.
Filed August 18, 2025 Affirmed Bentley, Judge
Department of Employment and Economic Development File No. 50969633-2
Ger Xiong, Janesville, Minnesota (self-represented relator)
Quality Extrusion, Mankato, Minnesota (respondent employer)
Keri A. Phillips, Katrina Gulstad, Minnesota Department of Employment and Economic Development, St. Paul, Minnesota (for respondent department)
Considered and decided by Larson, Presiding Judge; Larkin, Judge; and Bentley,
Judge.
NONPRECEDENTIAL OPINION
BENTLEY, Judge
Relator Ger Xiong challenges the determination of an unemployment-law judge
(ULJ) that Xiong was ineligible for unemployment benefits because he was discharged from his job for employment misconduct. Because the ULJ’s decision is supported by
substantial evidence, we affirm.
FACTS
Xiong worked at Quality Extrusion LLC as a machine operator from May 15, 2024,
until his discharge on July 11, 2024. He worked on a small team to “[c]reate polyethylene
film rolls and work orders to ship to customers.” After Xiong was discharged, he applied
for unemployment benefits. His application was denied because respondent Department of
Employment and Economic Development determined that he was discharged for
employment misconduct and was thus ineligible for benefits. Xiong requested a hearing
before a ULJ, which occurred in August 2024. The following summary is based on the
testimony and exhibits received at that hearing, as well as the ULJ’s decision.
Manager’s Testimony
A manager at Quality Extrusion testified as follows. Quality Extrusion expects
employees who will be absent or late to call an hour before the shift begins and talk to the
supervisor on duty. Xiong repeatedly had issues with attendance, and he consistently called
in. Between May 22, 2024, and June 6, 2024, Xiong was absent three times and was two
hours late once because of car troubles. He called in each time. And on June 19, 2024,
Xiong left an hour and a half into his shift to change his shirt but did not return to work
despite the employer’s expectation that he would.
On July 2, 2024, Quality Extrusion held a review meeting with Xiong. Xiong was
told that Quality Extrusion “needed him here” and that he had “missed a few days already.”
2 But the next week, Xiong missed three days of work—July 8, 9, and 10, 2024—because
he was in jail.
On July 11, 2024, Quality Extrusion discharged Xiong because of his attendance
issues. The manager emphasized that “dependability is very important” to Quality
Extrusion, as there are only three to four employees on a shift. He also clarified that the
reason for the discharge was not because Xiong was arrested or accused of a crime. Quality
Extrusion discharged Xiong because of his tardiness and absence, as Quality Extrusion
needs “to have people here.”
Xiong’s Testimony
Xiong testified as follows. Xiong believed he was discharged because he was a
probationary employee and could be discharged for any reason or no reason. He
acknowledged that his discharge might have been related to his attendance, except that he
had communicated about his absences and tardiness. He did not dispute that he was late to
or missed work on occasions. And he acknowledged that none of his absences were for
illness.
Xiong also explained his arrest in July, which caused his final three absences. The
details of the arrest are not relevant to the issue on appeal. Each day that Xiong missed
work while he was in jail, his girlfriend called in to Quality Extrusion. When Xiong was
bailed out, he was ready to go back to work, but a manager called him to say that “they
wouldn’t need [him] anymore.”
3 ULJ Decision
After the hearing, the ULJ issued a decision determining that Xiong was ineligible
for unemployment benefits because he was discharged for employment misconduct.
Specifically, the ULJ determined that Xiong was discharged “due to repeated absences”
between May 2024 and July 2024 and that he was not discharged because of his July 2024
arrest. The ULJ explained that it found the manager’s testimony credible “because it was
based on firsthand knowledge and consistent with documents submitted prior to the
hearing.” Xiong requested reconsideration of the decision, and the ULJ affirmed.
Xiong appeals by writ of certiorari.
DECISION
Xiong challenges the ULJ’s determination that he was discharged because of
attendance-related employment misconduct and is therefore ineligible for unemployment
benefits. He argues that he followed company policy when he was absent or tardy, and that
he was discharged for no reason other than that he was a probationary employee. The
Department of Employment and Economic Development argues that the ULJ’s decision is
supported by substantial evidence.
When reviewing a ULJ’s decision, we may affirm the decision or remand for further
proceedings. Minn. Stat. § 268.105, subd. 7(d) (2024). Alternatively, we may reverse or
modify a ULJ’s decision if, among other things, the decision is “unsupported by substantial
4 evidence in view of the hearing record.” 1 Id., subd. 7(d)(5). Substantial evidence is
“(1) such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion; (2) more than a scintilla of evidence; (3) more than some evidence; (4) more
than any evidence; or (5) the evidence considered in its entirety.” Dourney v. CMAK Corp.,
796 N.W.2d 537, 539 (Minn. App. 2011) (quoting Minn. Ctr. for Env’t Advoc. v. Minn.
Pollution Control Agency, 44 N.W.2d 457, 466 (Minn. 2002)). We review the ULJ’s
factual findings in the light most favorable to the decision and defer to the ULJ’s credibility
determinations. Peterson v. Nw. Airlines Inc., 753 N.W.2d 771, 774 (Minn. App. 2008),
rev. denied (Minn. Oct. 1, 2008).
An employee is ineligible for unemployment benefits if they were “discharged
because of employment misconduct.” Minn. Stat. § 268.095, subd. 4(1) (2024).
“Employment misconduct means any intentional, negligent, or indifferent conduct, on the
job or off the job, that is a serious violation of the standards of behavior the employer has
the right to reasonably expect of the employee.” Id., subd. 6(a) (2024). But “employment
misconduct” excludes “simple unsatisfactory conduct”; “absence because of illness or
injury of the applicant, with proper notice to the employer”; and “absence, with proper
notice to the employer, in order to provide necessary care because of the illness, injury, or
disability of an immediate family member of the applicant.” Id., subd. 6(b)(3), (7)-(8)
(2024). “Whether an employee’s absenteeism and tardiness amounts to a serious violation
1 We construe Xiong’s brief to argue that the ULJ’s decision was unsupported by substantial evidence. Although he does not use that phrase, he argues that the evidence before the ULJ would support a conclusion that he did not engage in employment misconduct.
5 of the standards of behavior an employer has a right to expect depends on the circumstances
of each case.” Stagg v. Vintage Place Inc., 796 N.W.2d 312, 316 (Minn. 2011).
Based on our review of the record, there is substantial evidence that Quality
Extrusion discharged Xiong for attendance-related employment misconduct. Much of the
evidence is from the manager’s testimony, whom the ULJ found credible. We defer to
ULJ’s credibility determination. Peterson, 753 N.W.2d at 774. The manager testified that
Xiong was discharged because he was “just not being here. We’re a small company. We
can’t have that.” He expressed that he “really liked having [Xiong] working here, but we
only have three or four guys per shift, so dependability is very important.” At a meeting in
July 2024, Quality Extrusion addressed that Xiong had “missed a few days already” and
told him that he needed to improve his attendance. After Xiong missed three consecutive
days the week following that meeting, Quality Extrusion “knew [it] had to make a change.”
Xiong also acknowledged that his attendance was “kind of an issue” and that his discharge
related to his attendance. And Xiong affirmed that none of his attendance issues were “due
to sickness or anything like that.” Rather, his absences were attributable to his arrest and
unreliable access to transportation. Considering the circumstances, there is substantial
evidence in the record that Xiong was reasonably expected to attend his scheduled shifts,
and Xiong’s repeated absences seriously violated the standards of behavior that Quality
Extrusion reasonably expected of him.
To persuade us otherwise, Xiong maintains that he followed company procedure by
reporting his absence or tardiness each time it occurred, and he was fired merely because
he was a probationary employee. These arguments are unavailing.
6 The record does not support Xiong’s assertion that his absences did not constitute
employment misconduct. Xiong’s brief alleges that his supervisors excused his absences.
But those statements were not before the ULJ, so we cannot consider them. See Ward v.
Delta Airlines, 973 N.W.2d 649, 653 (Minn. App. 2022) (citing Thiele v. Stich, 425 N.W.2d
580, 582 (Minn. 1988)) (declining to review issues not raised before the ULJ), rev. denied
(Minn. June 21, 2022). And statements by supervisors that appear in the hearing transcript
do not suggest that Xiong was excused from work. Xiong stated, “I also called in other
times, and even prior, like I talked to them after it was good, but then I kept in
communication with them . . . at all times.” And when Xiong’s girlfriend talked to the
manager to report that Xiong would miss work because he was in jail, Xiong testified that
the manager told the girlfriend that Xiong was “okay.” These statements do not suggest
that Quality Extrusion excused Xiong from his scheduled shifts, especially when weighed
against the testimony conveying that attendance was expected.
The record also does not support that Xiong was let go merely for being a
probationary employee. Xiong does not point to anything in the record to support his
assertion, other than testimony establishing that he was, in fact, a probationary employee.
And the manager testified that Xiong was discharged because of “repeated attendance
issues during his probationary period” and for no other reasons. Again, we defer to the
ULJ’s determination that the manager’s testimony was credible. The manager’s testimony
supplies substantial, unrebutted evidence that Quality Extrusion discharged Xiong for his
attendance issues.
7 For these reasons, we conclude that the ULJ’s determination that Xiong was
discharged for employment misconduct is supported by substantial evidence in the record.
We therefore see no basis to upend the ULJ’s decision that Xiong did not qualify for
unemployment benefits.
Affirmed.