Larry K. Olisa, Relator, vs. Pepsi Bottling Group, Respondent, Department of Employment and Economic Development, Respondent.

Larry K. Olisa, Relator, vs. Pepsi Bottling Group, Respondent, Department of Employment and Economic Development, Respondent. A05-572, Court of Appeals Unpublished, February 7, 2006.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-572

 

Larry K. Olisa,

Relator,

 

vs.

 

Pepsi Bottling Group,

Respondent,

 

Department of Employment and

Economic Development,

Respondent.

 

Filed February 7, 2006

Reversed and remanded

Klaphake, Judge

 

Department of Employment and Economic Development

File No. 17925 04

 

Lisa Hollingsworth, Southern Minnesota Regional Legal Services, Inc., 15815 Franklin Trail SE, Suite 309, Prior Lake, MN  55372; and

 

Charles H. Thomas, 12 Civic Center Plaza, Suite 3000, P.O. Box 3304, Mankato, MN  56002-3304 (for relator)

 

Pepsi Bottling Group LLC, Burnsville Location, Attn: Paul Mann, 1300 Cliff Road East, Burnsville, MN  55337-1403 (respondent)

 

Linda A. Holmes, Department of Employment and Economic Development, E200 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101 (for respondent Department)

 

            Considered and decided by Klaphake, Presiding Judge, Peterson, Judge, and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            In this certiorari appeal, relator Larry K. Olisa challenges the decision by a senior unemployment review judge (review judge), who determined that relator committed employment misconduct because he was discharged for disorderly conduct by respondent Pepsi Bottling Company.  Relator contends that he was denied a fair hearing because the Department of Employment and Economic Development improperly denied his request to subpoena three witnesses who would have supported his version of the events, bolstered his credibility, and established that he acted in self defense when he was involved in a physical confrontation with a security guard.

            Because the testimony of these witnesses was necessary to clearly and fully develop the facts and weigh the credibility of the witnesses who did testify, we reverse and remand.

D E C I S I O N

            During an unemployment compensation hearing, the unemployment law judge (ULJ) must "exercise control over the hearing procedure in a manner that protects the parties' rights to a fair hearing" and must "ensure that relevant facts are clearly and fully developed."  Minn. R. 3310.2921 (2005).  The ULJ is specifically directed to "assist unrepresented parties in the presentation of evidence."  Id.  While relator is represented by an attorney in this certiorari appeal, he appeared pro se at the hearing before the ULJ and on appeal to the review judge.

            Witness subpoenas are crucial to the ability of a party to fully present his or her case, particularly when the witnesses are hostile or controlled by the employer.  See Minn. Stat. § 268.188(a) (2004) (authorizing department to issue subpoenas to compel witness to attend unemployment compensation hearing).  In order to regulate the subpoena process, the department has adopted the following rule:

Subpoenas are available to a party to compel the attendance of witnesses . . . upon a showing of necessity by the party applying for subpoenas.  . . .  The requesting party must identify the person or documents to be subpoenaed, the subject matter of the evidence requested, and their necessity.  A request for a subpoena may be denied if the testimony . . . sought would be irrelevant, immaterial, or unduly cumulative or repetitious.

 

Minn. R. 3310.2914, subpt. 1 (2005).  Failure to comply with an issued subpoena is considered a "significant procedural defect" that so prejudices a party's ability to present his or her case that a remand is required for a new hearing or the taking of additional testimony.  See, e.g., Ntamere v. DecisionOne Corp., 673 N.W.2d 179, 182 (Minn. App. 2003); Thompson v. County of Hennepin, 660 N.W.2d 157, 161 (Minn. App. 2003).

            Prior to the telephone hearing before the ULJ, relator requested that the department issue subpoenas for three witnesses:  Sue Heifort, Micheal Otubushin, and Al Sikkink.  The department's decision to deny the subpoenas was affirmed by both the ULJ and the review judge, who reasoned that none of these individuals were eyewitnesses to the altercation between relator and the guard, which led to relator's discharge.

            Relator argues that each of the witnesses could have offered relevant, material, and probative testimony to support his claim that he merely raised his arm to block a blow from the security guard and was acting in self defense.  The department counters that "[a]n employee cannot insist on producing everyone who could agree with any part of the narrative he offers in order to ‘bolster his credibility,' or employees could bring in an unending string of witnesses to agree with every part of their testimony, relevant or not[.]"  However, relator was not seeking to subpoena every employee who might have been present that morning.  Rather, he sought to subpoena three witnesses whose testimony was crucial to add context to the incident and to corroborate his testimony, particularly when the security guard did not testify at the hearing.  The testimony of one of relator's requested witnesses was particularly relevant because it would have contradicted the testimony of the employer's only witness to challenge relator's version of the events.  Because relator established that the testimony of his requested witnesses was necessary and relevant to his case, we reverse.

            On appeal to the review judge, relator also argued that he did not receive a fair hearing before the ULJ because he was not given prior notice of the identity of the employer's witnesses and because he was not given an opportunity to present closing argument after his call was disconnected.  While relator did not specifically raise these issues on appeal, these procedural defects further add to the unfairness of the hearing that relator received.  We therefore remand for a new hearing.

            Reversed and remanded.