Kim Westrup v. Ryan Electric of St. Cloud, Inc., Relator, Department of Employment and Economic Development

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA
IN COURT OF APPEALS
A14-1860

Kim Westrup,
Respondent,

vs.

Ryan Electric of St. Cloud, Inc.,
Relator,

Department of Employment and Economic Development,
Respondent.

Filed August 3, 2015
Affirmed
Minge, Judge

Department of Employment and Economic Development
File No. 32661367-3

Kim Westrup, Eden Valley, Minnesota (pro se respondent)

Kelly S. Hadac, HKM, St. Paul, Minnesota (for relator)

Lee B. Nelson, Munazza Humayun, Minnesota Department of Employment and
Economic Development, St. Paul, Minnesota (for respondent department)

Considered and decided by Schellhas, Presiding Judge; Reyes, Judge; and Minge,

Judge.

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 UNPUBLISHED OPINION

MINGE, Judge

In this certiorari appeal from an unemployment-law judge’s (ULJ) decision that

respondent-employee is eligible for unemployment benefits, relator-employer argues that

the ULJ abused its discretion by refusing to order an additional hearing to receive

evidence which is claimed to show that statements made by respondent during the

hearing were likely false. We affirm.

FACTS

Respondent Kim Westrup was employed as an office administrator by relator

Ryan Electric of St. Cloud, Inc. from 2009 until June 9, 2014, when her employment was

terminated. She applied for unemployment benefits. Respondent Minnesota Department

of Employment and Economic Development (DEED) issued a determination of

eligibility. Ryan Electric appealed for a determination by a ULJ.

On July 21, 2014, the ULJ held an evidentiary hearing. Ryan Mulliner, the owner

of Ryan Electric and Westrup’s direct supervisor, testified for Ryan Electric. He stated

that Westrup was “very good at her job” and “was always as helpful as you could

expect,” but that her attitude and demeanor were “less than ideal.” He related that on one

occasion he had to speak with her about being nicer to a customer after the customer

complained, and that after he spoke with her, she was always friendly to the customer.

He also stated that in 2012 the company implemented a new scanning procedure and

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Westrup was “initially hesitant to follow the procedure.” After six months Westrup was

fully complying with the procedure, and it has not been an issue since.

Mulliner then testified that Westrup sometimes acted rudely toward other

employees. He stated that in September 2013, Ryan Electric hired a new employee, Sue

Ergen. Although Mulliner initially intended to have Ergen testify at the hearing, he

realized that she would be out of the country on the day of the hearing and “didn’t bother

rescheduling.” As a result Mulliner testified about Westrup and Ergen’s working

relationship. Westrup and Ergen did not get along well, and Ergen felt that Westrup was

unprofessional. On April 6, 2014, Ergen submitted a letter that stated she was resigning

because Westrup was difficult to work with. The letter alleged that Westrup had made

various inappropriate statements, including that “she was not going to be [Mulliner’s]

n*gger when [he was] in North Dakota,” that sometimes she “[didn’t] give a sh*t about

Ryan Electric,” and several criticisms of the company’s business practices. Ryan Electric

did not submit the letter as an exhibit, but Mulliner read the entire letter during the

hearing. Mulliner convinced Ergen not to resign, and he never spoke with Westrup or

issued any warnings concerning the allegations in the letter.

Two months later, Ryan Electric issued a memo announcing a change in company

policy. The memo indicated that any questions or concerns should be directed to

Mulliner. Westrup approached Mulliner, stating she had a problem with the change and

acting in a manner that Mulliner described as “huffy.” Mulliner testified that he told her

it was not for her to worry about and that Westrup replied “well, fine then, I just won’t

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worry about it” and left the office. This interaction lasted approximately 30 seconds.

Mulliner testified that after the interaction “[he] decided you know some things are just,

it’s just never gonna change and [he] needed to make a change.” He decided to discharge

Westrup.

Westrup also testified at the hearing. She confirmed that she and Ergen had a

difficult working relationship. The ULJ questioned her concerning the allegations made

in Ergen’s resignation letter. Westrup denied ever telling Ergen that she wasn’t “going to

be [Mulliner’s] n*gger” and that she did not recall ever making the comment, but

indicated there was a chance she may have said something to a former employee.

Westrup denied ever saying that she did not “give a sh*t about Ryan Electric” or that she

was the boss when Mulliner was out of the office. Westrup also testified about the

encounter with Mulliner that occurred before her termination and agreed that the

discussion ended with her saying “fine then I won’t worry about it” and leaving the

office.

The ULJ determined that Westrup was discharged for reasons other than

employment misconduct and therefore eligible for benefits. The ULJ noted that the

parties disagreed about whether Westrup made the statements in Ergen’s resignation

letter. With no direct testimony from Ergen, the ULJ found Westrup more credible

concerning that issue. The ULJ also noted that Westrup’s attitude was “less than ideal”

and that she did not get along with Ergen. However, the ULJ determined that in

determining eligibility for unemployment benefits, Westrup’s conduct was “not

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egregious” and “she did not seriously violate the employer’s reasonable expectations or

show a lack of concern for the employment.”

Ryan Electric requested reconsideration and asked the ULJ to order an additional

evidentiary hearing so Ergen could testify and her resignation letter could be submitted as

an exhibit. Ryan Electric argued that “[a]t a minimum, the testimony of Ms. Ergen will

show that Ms. Westrup’s testimony was likely false and that the false evidence had an

effect on the outcome of the decision.” The ULJ denied Ryan Electric’s request for an

additional evidentiary hearing. The ULJ concluded that Ergen’s testimony was not new

evidence but would reiterate what Mulliner had testified to during the hearing and “only

confirms that disagreement between the [parties] exists.” Ryan Electric appeals.

DECISION

When reviewing a ULJ’s eligibility determination, we may affirm, remand for

further proceedings, or reverse or modify the decision if the substantial rights of the

relator have been prejudiced because the findings, inferences, conclusion, or decision are

affected by an error of law or are unsupported by substantial evidence. Minn. Stat.

§ 268.105, subd. 7(d) (2014). We review the ULJ’s factual findings in the light most

favorable to the decisions and defer to the ULJ’s credibility determinations. Peterson v.

Nw. Airlines Inc., 753 N.W.2d 771, 774 (Minn. App. 2008), review denied (Minn. Oct. 1,

2008). “[T]his court will not disturb the ULJ’s factual findings when the evidence

substantially sustains them.” Id.

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 The purpose of chapter 268 is to assist those who are unemployed through no fault

of their own. Minn. Stat. § 268.03, subd. 1 (2014). The chapter is remedial in nature and

must be applied in favor of awarding benefits, and any provision precluding receipt of

benefits must be narrowly construed. Minn. Stat. § 268.031, subd. 2 (2014).

Ryan Electric argues that the ULJ erred by declining to hold an additional

evidentiary hearing and requests that we remand the case, ordering another evidentiary

hearing limited to receiving testimony and the letter from Ergen.

We defer to a ULJ’s decision whether to grant an additional evidentiary hearing

and will reverse that decision only if the ULJ abused its discretion. Vasseei v. Schmitty &

Sons Sch. Buses Inc., 793 N.W.2d 747, 750 (Minn. App. 2010). The ULJ’s discretion is

not absolute and “must be exercised within the statutory requirements.” Id. The relevant

statute provides that the ULJ must order an additional evidentiary hearing if a party

shows that evidence that was not submitted at the evidentiary hearing: (1) “would likely

change the outcome of the decision and there was good cause for not having previously

submitted that evidence” or (2) “would show that the evidence that was submitted at the

[evidentiary] hearing was likely false and that the likely false evidence had an effect on

the outcome of the decision.” Minn. Stat. § 268.105, subd. 2(c)(1)-(2) (2014).

The new evidence Ryan Electric offered included the testimony of Ergen and a

copy of her resignation letter. Ryan Electric does not argue that there was good cause for

not submitting the evidence at the initial hearing. Thus, under the first statutory provision

for an additional hearing, we do not consider whether eliminating any diminished

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persuasiveness of the hearsay nature of Mulliner’s testimony would likely change the

outcome of the ULJ’s decision. The second statutory ground provides for an additional

hearing if the new evidence “would show that the evidence that was submitted at the

hearing was likely false and that the likely false evidence had an effect on the outcome of

the decision.” Id., subd. 2(c)(2). The ULJ determined that the new evidence was “merely

a summary of what [Ryan Electric] testified to during the hearing” and “only confirms

that disagreement between the [parties] exists.” The ULJ concluded that the summary

did not demonstrate that Westrup’s testimony was likely false.

As the ULJ noted, the parties disagree about whether Westrup made the statements

in question. Ryan Electric’s position is based on Ergen’s account. Ergen’s proffered

testimony would be consistent and cumulative to Mulliner’s testimony and the argument

Ryan Electric made during the initial hearing. The ULJ was already aware that Ergen

and Westrup had conflicting accounts of what happened. At best, direct testimony by

Ergen rather than Mulliner’s hearsay account might tilt the persuasiveness of the record

in favor of Ryan Electric. However, Ryan Electric chose to take its chances with this

hearsay evidence. Replacing that hearsay with direct testimony is not the same as

demonstrating falsity. We conclude that it was not an abuse of discretion for the ULJ to

determine that Ergen’s personal testimony on the subject would not show that Westrup’s

testimony was likely false.

Similarly, it was also within the ULJ’s discretion to decide that adding Ergen’s

actual resignation letter to the record would not establish that Westrup’s testimony was

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likely false. Although not submitted as an exhibit, Mulliner read Ergen’s entire

resignation letter into the record during the initial hearing. The ULJ considered the

contents and asked Westrup questions based on the allegations made in the letter.

Moreover, Ryan Electric’s argument that the letter is “a written confirmation of the

statements made by Ms. Westrup” does not necessarily change the situation. Ryan

Electric’s allegations that the statements were made is based entirely on Ergen’s account.

The letter does not prove that the statements were made, but rather repeats the allegations

that were heard and considered by the ULJ during the initial hearing.

Because the ULJ did not abuse its discretion by denying the request for an

additional evidentiary hearing, we affirm.

Affirmed.

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