Mary C. Osland, Relator, vs. Teens Inc., Respondent, Department of Employment and Economic Development, Respondent.

Mary C. Osland, Relator, vs. Teens Inc., Respondent, Department of Employment and Economic Development, Respondent. A06-2009, Court of Appeals Unpublished, September 11, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-2009

 

Mary C. Osland,

Relator,

 

vs.

 

Teens Inc.,

Respondent,

 

Department of Employment

and Economic Development,

Respondent.

 

 

Filed September 11, 2007

Affirmed Hudson, Judge

 

Department of Employment

and Economic Development

File No. 10875 06

 

Mary C. Osland, 12206 Buchanan Court Northeast, Blaine, Minnesota 55434-4088 (pro se relator)

 

Teens Inc., 1080 County Road E West, Shoreview, Minnesota 55126-8067 (respondent)

 

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

 

            Considered and decided by Willis, Presiding Judge; Minge, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

HUDSON, Judge

            Relator challenges the decision by the unemployment-law judge (ULJ) that she was disqualified from receiving benefits because she had been discharged for misconduct, contending that (a) she did not receive a fair hearing, and (b) the ULJ should have credited her testimony that she was discharged due to a personality conflict with the owner and should not have credited the employer's evidence that customers had complained about her, that she had been warned that this could lead to her termination, and that she had been fired based on the complaints.  Because the ULJ conducted the hearing fairly, the ULJ's findings are supported by substantial evidence, and we defer to the ULJ's credibility determinations, we affirm.

FACTS

            Relator Mary Osland was employed as a driving instructor for respondent Teens Inc., a driving school, from April 1, 2005, until February 17, 2006, when she was discharged.  She applied for unemployment benefits, and a department adjudicator initially determined that she was not disqualified from receiving benefits.  Teens Inc. appealed, and a telephone conference hearing was held before an unemployment-law judge (ULJ).

            At the hearing, the witnesses included Mike Pehl (Pehl), the owner of Teens Inc.; Terra Bigalk, the dispatcher; and Colleen Pehl, the office coordinator; as well as relator Mary Osland.

            At the start of the hearing, relator objected to the ULJ's receipt of Pehl's exhibits because she did not receive copies of them until the night before, when she found them outside her door after returning home from work.  Although she argued that she did not have a chance to look at or rebut the exhibits, she also acknowledged that she had time to review them in the morning before the hearing began.  The ULJ accepted the exhibits, ruling that although it would have been better had relator received the documents earlier, she received them in time to prepare for the hearing.

            Pehl testified that he issued several memos to the driving instructors, two of which relator acknowledged receiving.  In one memo, he told the instructors that he had received complaints from customers, reminded them not to conduct personal business while they were instructing the students, and warned that any further complaints would lead to termination.  In another memo, Pehl reminded the instructors of their duties, including the requirement that students were to be given driving instruction in downtown Minneapolis or St. Paul.

            Bigalk, the dispatcher, testified that she kept a record of complaints received by telephone, mail, or e-mail and gave them to Pehl; she did not discuss the complaints directly with relator because that was not her responsibility.  The record includes some of the complaints that she had received about relator.  For instance, in mid-August 2005, a parent reported that relator entered their home without taking her shoes off, sat down in a chair in the living room, talked, and played with their dog for 15 minutes during the time scheduled for the lesson; relator also talked on her cell phone during the lesson.  The parent complained that in the next lesson, relator refused to take her student downtown to practice, contrary to requirements.  Finally, the parent said that relator went through the student's purse after opening it to take out a ringing phone.  Another parent reported that during the student's November 2005 lesson, relator stopped to buy a pair of shoes.  Bigalk related a call that she took from another customer who complained that in February 2006, relator had been on her cell phone while the student practiced parking.

            Pehl testified that he discussed these and additional incidents with relator and told her this had to stop; her response was to deny that she had engaged in that behavior.  He acknowledged that he did not give her written reprimands because that was not the company's practice, but he testified that every time he talked to her, he told her that her inappropriate conduct had to stop and that her job was on the line.  At the hearing, relator denied all of the incidents and denied even giving lessons to the particular students whose parents had complained.  She also said Pehl had never warned her that her job was at risk.

            Pehl testified that on February 17, 2006, he told relator that he was discharging her because of complaints he received.  He informed her that she was not abiding by the rules and that when he tried to discuss it with her, she started arguing.  Relator testified that she did not know she was being fired until the time it actually happened.  She testified that Pehl told her she was being fired because they clashed and had a personality conflict, and she denied that he told her that she was being fired because of the complaints.

            The ULJ recognized in his decision that relator and Pehl gave conflicting testimony as to whether the company had received complaints about relator.  The ULJ found Pehl's and Bigalk's testimony more persuasive than the testimony given by relator; he found Bigalk's testimony most impressive because she did not have any conflicts with relator and she did nothing more than report the complaints she had received to Pehl.  Therefore, he concluded the preponderance of the evidence supported the determination that the company had received numerous customer complaints about relator; that Pehl had orally reprimanded her about some of these complaints and put her on notice that her job was at risk in the event of future complaints; and that she continued to conduct personal business while she should have been providing driving instruction.  The ULJ found that the lack of written reprimands did not change the fact that she acted inappropriately at work and was reprimanded.  The ULJ concluded that relator had committed clear and serious violations of standards of behavior that the employer had a right to reasonably expect and clearly displayed a substantial lack of concern for her employment, amounting to misconduct and disqualification.

            Relator requested reconsideration, contending that Pehl's testimony lacked credibility because the complaints were first made known to her the day before the hearing and because she was more credible.  The ULJ determined he had already ruled on these issues and there was no good reason why the decision should be changed.  The ULJ then issued an order of affirmation, from which this certiorari appeal was taken.

D E C I S I O N

            This court may reverse a decision by a ULJ if the decision is based on unlawful procedure, relies on error of law, or is unsupported by substantial evidence.  Minn. Stat. § 268.105, subd. 7(d)(3)-(5) (2006).

I

            Relator argues that she did not receive a fair hearing because Pehl did not provide her with a copy of the complaints that he submitted to the ULJ until the night before the hearing.  The ULJ overruled her objections and accepted the exhibits into evidence.  "Evidentiary rulings in administrative proceedings are subject to an abuse-of-discretion standard."  CUP Foods, Inc. v. City of Minneapolis, 633 N.W.2d 557, 566 (Minn. App. 2001), review denied (Minn. Nov. 13, 2001).

            The ULJ is to exercise control over the hearing procedure to protect the parties' rights to a fair hearing and ensure that relevant facts are clearly and fully developed.  Minn. R. 3310.2921 (2005).  Generally, parties are to submit exhibits to the Department of Employment and Economic Development (DEED) no later than five days before the hearing, so that it can then mail copies to the parties before the hearing.  Minn. R. 3310.2912 (2005).  Recognizing that there may be occasions on which the parties do not meet this deadline, the rules also provide for submission at the hearing, with the record left open for a response or the hearing continued to allow cross-examination on the documents if necessary.  Id.

            In this case, relator received a copy of the exhibits in time to review them before the hearing.  Further, relator cross-examined Pehl and Bigalk about the documents.  The ULJ did not abuse his discretion in accepting the documents into evidence, and relator has not demonstrated the hearing was unfair.  There is no indication that relator needed or sought a continuance so that she could file a response or that she needed additional time for cross-examination.  Instead, she made her challenges to those documents very clear at the hearing.

II

            The next issue is whether the ULJ's findings and credibility determinations as to misconduct were supported by substantial evidence.

            An employee who is discharged for misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4(1) (Supp. 2005); see id., subd. 6 (2004) (defining misconduct).  Whether an employee committed a particular act is an issue of fact.  Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  Findings that are not supported "by substantial evidence in view of the entire record as submitted" may be reversed.  Minn. Stat. § 268.105, subd. 7(d)(5) (2006); Ywswf v. Teleplan Wireless Servs., Inc., 726 N.W.2d 525, 529 (Minn. App. 2007).

            At the hearing, the ULJ was presented with conflicting versions as to the reason for relator's discharge.  Both parties testified as to their version of events and engaged in vigorous cross-examination.  Teens Inc. presented evidence that relator was fired because the driving school had received complaints that relator engaged in personal business during driving lessons and did not bring the students downtown for instruction.  Further, there was evidence that despite warnings to stop or risk termination, she continued that behavior.  Relator testified, denying that she engaged in such conduct and instead asserted Pehl fired her because they had a personality conflict.  She argues that the employer did not tell her about the complaints or warn her that her job was at risk while she was employed or when she was discharged.  Instead, she asserted that the first time she saw or heard about the complaints was when she received a copy of them the night before the hearing.  She contends that the evidence presented was false and created after she was fired, and she questions why the ULJ credited the employer's version of events over hers.

We first address whether there was substantial evidence in the record to support the ULJ's findings that the employer received numerous customer complaints about relator; that Pehl orally reprimanded her and put her on notice her job was at risk; and that she continued to conduct personal business while she should have been providing driving instructions to the students.  There was testimony by dispatcher Bigalk as to the complaints the company received and by Pehl as to his reprimands to relator.  While some of these reports constitute hearsay, hearsay is admissible in unemployment hearings "if it is the type of evidence on which reasonable, prudent persons are accustomed to rely in the conduct of their serious affairs."  Minn. R. 3310.2922 (2005).  As respondent argues, employers rely on repeated customer complaints in conducting their business.  See Holton v. Gnan Trucking, 379 N.W.2d 571, 574 (Minn. App. 1985) (noting that three independent customer complaints showed evidence of misconduct).  Substantial evidence in the record supports the ULJ's findings.

We next address relator's challenges to the credibility determinations.  "When the credibility of an involved party or witness testifying in an evidentiary hearing has a significant effect on the outcome of a decision, the unemployment law judge must set out the reason for crediting or discrediting that testimony."  Minn. Stat. § 268.105, subd. 1(c) (Supp. 2005).  "Credibility determinations are the exclusive province of the ULJ and will not be disturbed on appeal."  Skarhus v. Davanni's, Inc., 721 N.W.2d 340, 345 (Minn. App. 2006).  The ULJ specifically addressed credibility.  The ULJ found that Pehl's and Bigalk's testimony was more persuasive than the testimony given by relator, noting that Bigalk's was the most impressive because there was no conflict between relator and her and she did nothing more than report to Pehl the complaints she received over the telephone.  The findings are "supported by substantial evidence and provide the statutorily required reason" for the credibility determination.  See Ywswf, 726 N.W.2d at 533 (reaching same conclusion).  We must defer to the ULJ's credibility determinations.  Skarhus, 721 N.W.2d at 345.

            The decision of the ULJ that relator engaged in disqualifying misconduct is affirmed.

            Affirmed.