Barbara N. Canter, Relator, vs. Cahill Salon and Tan Inc., Respondent, Department of Employment & Economic Development, Respondent.

Barbara N. Canter, Relator, vs. Cahill Salon and Tan Inc., Respondent, Department of Employment & Economic Development, Respondent. A06-81, Court of Appeals Unpublished, December 19, 2006.

This opinion will be unpublished and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

A06-81

 

Barbara N. Canter,

Relator,

 

vs.

 

Cahill Salon and Tan Inc.,

Respondent,

 

Department of Employment & Economic Development,

Respondent.

 

Filed December 19, 2006

Affirmed

Toussaint, Chief Judge

 

Department of Employment and Economic Security

File No. 13047 05

 

 

Barbara N. Canter, 7430 128th Street West, Apartment 101, Apple Valley, MN 55124 (pro se relator)

 

Cahill Salon and Tan Inc., 5970 Upper 182nd Street, Farmington, MN 55024 (respondent)

 

Linda A. Holmes, Lee B. Nelson, Department of Employment and Economic Development, 332 Minnesota Street, Suite E200, St. Paul, MN 55101-1351 (for respondent Department)

 

            Considered and decided by Toussaint, Chief Judge; Halbrooks, Judge; and Harten, Judge.*

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

Relator Barbara N. Canter challenges the decision of the unemployment law judge (ULJ) that she is disqualified from receiving unemployment benefits because of employment misconduct. Because we conclude that the record reasonably supports the department's final decision and Canter's conduct constituted employment misconduct, we affirm.

D E C I S I O N

When reviewing the decision of a ULJ, this court may

affirm the decision . . . or remand the case for further proceedings; or it may reverse or modify the decision if the substantial rights of the petitioner may have been prejudiced because the findings, inferences, conclusion, or decision are:

 

(1)       in violation of constitutional provisions;

(2)       in excess of the statutory authority or jurisdiction of the department;

(3)       made upon unlawful procedure;

(4)       affected by other error of law;

(5)       unsupported by substantial evidence in view of the entire record as submitted; or

(6)       arbitrary or capricious.

 

Minn. Stat. § 268.105, subd. 7(d) (Supp. 2005).

 

Misconduct is defined as "any intentional, negligent, or indifferent conduct  . . . (1) that displays clearly a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee."  Minn. Stat. § 268.095, subd. 6(a) (2004). Whether an employee is not entitled to benefits for reasons of misconduct is a mixed question of fact and law, but whether the employee's acts constitute misconduct is a question of law that this court reviews de novo.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002). This court reviews factual findings in the light most favorable to the decision.  Id.

 Canter was employed as a nail and skin technician by respondent Cahill Salon and Tan, Inc.  The ULJ found that Canter was discharged for her unprofessional conduct with different clients during her employment and for her use of profanity in the presence of a client.  The ULJ found three incidents of unprofessional conduct that were followed by reprimands:  (1) on July 30, 2004, Canter called a client, who she felt might have stolen her telephone, after she had been told not to call; (2) on January 10, 2005, Canter was rude and unprofessional toward a client; and (3) on June 11, 2005, Canter was rude, used profanity in front of a client, and left a client alone in a location where the client could have easily stolen Cahill's property.  The ULJ also found that a number of times Canter was counseled not to leave clients unattended.

Canter recalled some of the incidents, knew she had to be professional or face discharge, and stated that she expected discharge because the employment was not working.  Canter's and Cahill's testimony regarding Canter's conduct toward clients and her use of profanity, however, conflicted. 

This court gives deference to the credibility determinations made by the ULJ. Jenson v. Dep't of Econ. Sec., 617 N.W.2d 627, 631 (Minn. App. 2000), review denied (Minn. Dec. 20, 2000).  When witness credibility and conflicting evidence are at issue, the reviewing court defers to the ULJ's ability to weigh the evidence and make those determinations and does not weigh the evidence on review.  Skarhus v. Davanni's Inc., 721 N.W.2d 340, 344 (Minn. App. 2006). 

The ULJ found the testimony given by Cahill's owners and manager to be more credible than Canter's because it was supported by documentation maintained as a part of Cahill's business practices.  The ULJ received all exhibits at the start of the hearing.  The documents included excerpts of the employee handbook, written reprimands, customer feedback forms, and a letter from the client involved in the June 11, 2005, incident.  Both parties had the same documents and were given an opportunity to object to them. 

Canter argues the ULJ erred when he relied on Cahill's testimony because it was based on documentation that was hearsay in the form of an unsworn witness letter and on documentation that was unavailable, missing, or forged.  A ULJ

may receive any evidence which possesses probative value, including hearsay, if it is the type of evidence on which reasonable, prudent persons are accustomed to rely in the conduct of their serious affairs.  . . . [the ULJ] shall not be bound by statutory and common law rules of evidence. The rules of evidence may be used as a guide in a determination of the quality and priority of evidence offered. 

 

Minn. R. 3310.2922 (2005); Vang v. A-1 Maint. Serv., 376 N.W.2d 479, 482 (Minn. App. 1985) (stating that hearsay may be sufficient to support ULJ's decision).

The ULJ received a typed unsigned letter from the client involved in the June 11, 2005, incident.  It described how Canter used profanity while she provided services to the client and left the client alone in the salon before the services were completed.  The description in the letter was consistent with Cahill's testimony.  Although Canter raised technical objections to the letter, the record shows that Canter had the letter before the hearing and failed to produce any evidence attacking the client's veracity or showing bias.  Therefore, it was not error for the ULJ to receive the letter. 

It is unclear what documents Canter claims were unavailable or missing.  Canter did not describe the unavailable or missing documents or cite testimony regarding them.  There was also no evidence showing that Cahill forged documents or fabricated testimony regarding Canter's conduct.  The ULJ did not err in relying on the testimony and considering the documents supporting that testimony.

Canter asserts that Cahill violated Minn. Stat. §§ 181.961, subd. 2(c), .963 (2004) because she allegedly did not receive all of her personnel records from Cahill.  Chapter 181, however, is enforceable only by civil action in the name of the Department of Labor and Industry.  Minn. Stat. § 181.9641 (2004).  Similarly, Canter's claims that Cahill made false statements and should be penalized under Minn. Stat. §§ 268.184, subds. 1(b), 2 (2004) lack merit.  The record does not show that Cahill failed to produce documents or made false statements.

The ULJ's findings of unprofessional conduct and profanity were supported by the record and constituted a serious violation of conduct reasonably expected of the employee.  Therefore, the ULJ correctly concluded that Canter was disqualified from receiving unemployment benefits because she was discharged for misconduct.

Affirmed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.