Soliciting Dates While On Duty Disqualifies Deputy From Unemployment Insurance

David DuBay was a deputy sheriff for Watonwan County, Minnesota from September 2008 to July 2010, when he was terminated for numerous instances of insubordination and inappropriate conduct toward women while on duty. Early in DuBay’s brief career, the Department began to receive complaints from women that DuBay solicited dates from them while on duty. The complaints included DuBay asking women on dates, making women feel uncomfortable, aggressively pursuing them, and, in one case, extending an invitation to a “clothing optional” party. Sheriff Gary Menssen and other supervisors repeatedly warned DuBay about soliciting dates while on duty.

Despite being warned on at least three occasions not to solicit dates while on duty, Dubay solicited dates from a nurse at a local hospital, intimidated and solicited three female drivers whom he pulled over, and invited a gas station clerk to a “clothing optional” party – all while he was on duty. When the Department fired DuBay, he filed for unemployment compensation.

In Minnesota, as in most states, a terminated individual is disqualified from receiving unemployment compensation if he was fired for “misconduct” associated with the job. 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.”

DuBay argued that his conduct was not a serious violation of the County’s standards because he was not disciplined at the time the various women lodged their complaints and that the final incident with the gas station clerk was isolated. As the Court put it, “We are not persuaded. First, an employee’s expectation that the employer will follow its disciplinary procedures has no bearing on whether the employee’s conduct violated the standards the employer has a reasonable right to expect or whether any such violation is serious.

“Second, the incident with the gas station clerk was not isolated, and even if it was, a single incident in which an employee deliberately acts adversely to the employer’s interests may constitute misconduct. Third, a law enforcement entity has a legitimate expectation that its officers will not solicit dates while on duty, conduct themselves in a manner that threatens the comfort and privacy of citizens, or publicly criticize supervising officers. DuBay’s repeated and serious violations of these basic standards showed a substantial lack of concern for his employment, and we conclude that DuBay was terminated for employment misconduct and is ineligible for benefits.”

DuBay v. County of Watonwan, 2012 WL 118319 (Minn. App. 2012).