Nurieni Abdi, Relator,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1846

Nurieni Abdi,
Relator,

vs.

Atterro, Inc.,
Respondent,
Department of Employment and Economic Development,
Respondent.

Filed August 7, 2017
Affirmed
Reyes, Judge

Department of Employment and Economic Development
File No. 34794492-3

Charles H. Thomas, Law Offices of Southern Minnesota Regional Legal Services, Inc.,
St. Paul, Minnesota (for relator)

Atterro, Inc., c/o TALX UCM Services, Inc., St. Louis, Missouri (for respondent employer)

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

Considered and decided by Hooten, Pres iding Judge; Bjorkman, Judge; and Reyes,
Judge.

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U N P U B L I S H E D O P I N I O N
REYES, Judge
Relator challenges the determination of an unemployment-law judge (ULJ) that he
is ineligible for unemployment benefits because he neither informed respondent-employer
of an injury nor requested accommodation prior to quitting. We affirm.
FACTS
Respondent-employer Attero Inc. is a staffing service do ing business as Pro Staff.
Pro Staff assigned relator Nurieni Abdi to a full-time position as a forklift operator with
client-company Universal.
On July 1, 2016, relator quit his employm ent with Pro Staff due to knee pain from
driving a forklift. Relator applied for unemployment benefits, and respondent Department
of Employment and Economic Development (D EED) determined that he was ineligible
because relator did not follow the proper procedure to quit for medical reasons. Relator
appealed DEED’s determination, and the ULJ held a telephonic evidentiary hearing.
The hearing was interpreted in Somali for relator, and relator was represented by an
attorney. Neither relator nor hi s attorney planned to call any witnesses. Relator testified
that, nine or ten days before he quit, he spoke with two managers and a supervisor at
Universal (the Universal employees) to reques t that he be assigned a different job that
would cause him less pain. The Universal empl oyees told relator that they did not have
any other positions for relator and that he sh ould contact Pro Staff regarding his pain and
his request for a different assignment.
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Relator testified that he first reported hi s knee pain to Pro Staff when he called on
July 1 and spoke with a woman whose name he could not reca ll. Relator noted that he
“was also having a language barrier” and di d not know how well the Pro Staff employee
understood him. Relator testified that he told the Pro Staff employee that he could not
finish his shift due to his knee pain and reque sted a different position. In response, the
employee told him “to stay ther e for one more week” and that, if he could not finish the
shift, Pro Staff “would not be able to find [relator] another assignment.”
Relator further testified that he did not visit a doctor for his knee pain until after he
quit because his shift ended at 2:00 a.m., and he did not have time to go to the doctor at
other hours. 1 When relator visited a doctor af ter quitting the assignment, the doctor
imposed work restrictions on relator.
Anhngyet Nguyen, a Pro Staff talent manage r, testified at the hearing on behalf of
Pro Staff. Nguyen testified that relator ca lled Pro Staff on July 1 and spoke with Erin
Koolen. Relator told Koolen that he was quitting, but Koolen could not get any additional
information from relator about his decision to quit or a one -week formal notice before
relator ended his employment.
At the conclusion of the hearing, Nguyen emailed to the ULJ and relator’s attorney
Koolen’s documentation of the email Koolen sent Universal after the July 1 conversation
(the conversation) with relator:
We just heard from Nurieni Abdi, and unfortunately, he
is leaving the position right now and is not returning. I tried to

1 Relator did not provide further explanation as to why he did not visit a doctor prior to
quitting.
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get some additional informa tion from him regarding the
reason, but he was not willing to provide me with additional
details or a notice. He is aw are that Pro Staff will not be a
resource for him moving forward, and we apologize for this
inconvenience. We will get working on a replacement for him
right away.

When the ULJ asked if Koolen was available to testify, Nguy en stated that Koolen was
unavailable because she was “out on the field working.”
After the hearing, the ULJ issued her findings of fact and decision, confirming
relator’s ineligibility for unemployment benefits because it was “more likely than not, that
[relator] did not inform Pro Staff of his knee problems or request an accommodation before
he quit.” Relator requested reconsideration, and the ULJ affirmed the decision. This
certiorari appeal follows.
D E C I S I O N
When this court reviews a ULJ’s determ ination of ineligibility for unemployment
benefits, we may affirm the decision, remand the case for further proceedings, or reverse
or modify the decision if a relator’s substan tial rights have been pr ejudiced. Minn. Stat.
§ 268.105, subd. 7(d) (2016). A relator’s substantial rights may have been prejudiced
where “the findings, inferences, conclusion, or decision are . . . made upon unlawful
procedure . . . [or] unsupported by substantia l evidence in view of the entire record.” Id.
We review de novo whether a ULJ properly de termined that a relato r was ineligible to
receive unemployment benefits. Hayes v. K-Mart Corp. , 665 N.W.2d 550, 552 (Minn.
App. 2003), review denied (Minn. Sept. 24, 2003). This court views a ULJ’s factual
findings in the light most favorable to the de cision, and we will not disturb the factual
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findings when they are substantia lly sustained by the evidence. Peterson v. Nw. Airlines
Inc., 753 N.W.2d 771, 774 (Minn. App. 2008), review denied (Minn. Oct. 1, 2008).
An applicant who quits their employment is not eligible for unemployment benefits
unless they satisfy a statutor y exception to ineligibility. Minn. Stat. § 268.095, subd. 1
(2016). One exception occurs when a serious illness or injury made it medically necessary
to quit. Id., subd. 1(7). This exception applies only if the applicant informed the employer
of the medical problem, requested accomm odation, and no accommodation was made
available. Id.
Relator does not dispute that he quit his employment with Pro Staff but asserts that
his medical condition made it necessary to quit. Relator argues that the ULJ’s credibility
determinations are not supported by substa ntial evidence and th at the ULJ followed
unlawful procedures by failing to fully develop the record. We address each argument in
turn.
I. The ULJ’s credibility determinations are supported by substantial evidence in
the record.
Relator concedes on appeal that he spoke with Koolen when he called Pro Staff,
despite testifying to the contrary. Relator further concedes that he and Pro Staff understood
that Pro Staff would no longer assist relator in finding work if he quit his assignment with
Universal on July 1. Relator argues that the ULJ’s credibility determinations require
reversal of the decision because substantia l evidence does not support (1) the ULJ’s
presumption that Koolen told the truth in her documentation of the conversation; (2) the
ULJ’s finding that Nguyen’s testimony about th e content of the conversation was more
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credible than relator’s testimony; and (3) th e ULJ’s implicit finding that there was no
language barrier between relator and Koolen.
A. Koolen’s documentation
The ULJ reasoned that the content of K oolen’s documentation of the conversation
was reliable evidence because “it is simply not credible that Koolen would state that she
asked [relator] for a reason why he was quitting, and that [relator] refused to give a reason,
if that was not in fact the case.” Relator first argues that the ULJ’s credibility determination
about Koolen’s documentation was not supp orted by evidence in the record because
Koolen did not testify. Relator’s argumen t is misguided because the ULJ’s finding
addressed whether Koolen’s documentati on was reliable evidence, not Koolen’s
credibility.
Next, relator asserts that the ULJ exhibited bias in favor of Pro Staff in presuming
that Koolen told the truth in the documenta tion of the conversation. Relator cites no
caselaw in support of his assertion. Furt her, when evidence co nflicts, the ULJ must
determine which witnesses are mo re credible and what evidence is reliable. Minn. Stat.
§ 268.105, subd. 1a (2016). There is no indi cation that the ULJ’s determination that
Koolen’s documentation was reliable evidence was the product of the ULJ’s bias.
B. Nguyen’s testimony
Relator argues that the ULJ’s determin ation that Nguyen’s testimony was more
credible than relator’s is improper because the ULJ aske d Nguyen hypothetical questions
and received speculative responses about the content of the conversation. We disagree.
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“When the credibility of a witness testifying in a hearing has a significant effect on
the outcome of the decision, the [ULJ] must set out the reason for crediting or discrediting
that testimony.” Minn. Stat . § 268.105, subd. 1a(a). Th is court will affirm a ULJ’s
credibility determination where the witness’s testimony was “very detailed and specific.”
Ywswf v. Teleplan Wireless Servs., Inc. , 726 N.W.2d 525, 533 (M inn. App. 2007). Here,
the ULJ determined that Nguyen’s testimony was more credible than relator’s “because it
was detailed and specific, because it was more plausible and certain, and because it was
corroborated by Koolen’s note in [Pro Staff’s] computer system.”
Nguyen’s testimony had a substantial effe ct on the outcome of the ULJ’s decision
because it addressed whether re lator notified Pro Staff of his knee pain and requested
accommodation. The ULJ did not err by finding that Ng uyen’s testimony was more
detailed, specific, plausible, and certain than relator’s due in part to Nguyen’s knowledge
of Pro Staff’s procedures. Fo r example, Nguyen testified th at it was not possible that
relator told Koolen about his knee pain because this would have prompted Koolen to advise
relator “to release himself from the position” so that Pro Staff could find work that
accommodated his needs. In addition, Nguyen testified that Koolen would have asked
relator to stay at Universal for one more week in an attempt to receive notice from relator
prior to ending his assignment, which woul d have allowed Pro St aff time to find a
replacement employee. Accordingly, there is substantial evidence to support the ULJ’s
determination with regard to Nguyen’s testimony.
Relator also argues that the ULJ exaggera ted the corroborative value of Koolen’s
documentation of the conversa tion as a contemporaneous business record. However, a
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ULJ “is not bound by statutory and common law rules of evidence.” Minn. R. 3310.2922
(2015). A ULJ may use the rules of evidence “as a guide in determining the quality of
evidence offered.” Id. Further, a ULJ may consider whether a witness’s testimony was
“corroborated by other testimony and evidence.” Ywswf, 726 N.W.2d at 532. Relator does
not cite to any caselaw to support his argu ment that the ULJ wa s required to analyze
Koolen’s documentation of the conversation under Minn. R. Evid. 803(6), and it would be
contrary to rule 3310.2922. Thus, the UL J properly considered Koolen’s documentation
of the conversation as evidence that corroborated Nguyen’s testimony.
C. The language barrier
The ULJ did not make an explicit finding about whether a language barrier affected
the conversation. However, Nguyen testified that she had previous conversations with
relator that were “able to be followed through” in English. In addition, the record reflects
that relator successfully communicated to and understood th e Universal employees when
he told them that he was experiencing kn ee pain and requested an accommodation, and
they told him to call Pro Sta ff. Accordingly, this court defers to the ULJ’s implicit
determination that a language barrier did not affect the conversation because it is
substantially sustained by the evidence.
II. The ULJ followed proper procedures.
Relator argues that his substantial rights were prejudiced because the ULJ followed
unlawful procedures by (1) failing to fully de velop the record; (2) failing to make written
findings on the evidence presented; and (3 ) improperly imposing a burden of proof on
relator. Relator’s specific arguments are addressed in turn.
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A. The ULJ did not fail to fully develop the record.
“We will reverse a ULJ’s decision if it was made on an unlawful procedure.”
Stassen v. Lone Mountain Truck Leasing, LLC, 814 N.W.2d 25, 31 (Minn. App. 2012). A
ULJ “must assist all parties in the presentation of evidence” and “ensure that all relevant
facts are clearly and fully developed.” Minn . R. 3310.2921 (2015). “The unemployment
law judge may issue a subpoena even if a party has not requested one.” Minn. R. 3310.2924
(2015). However, that a ULJ should assist all parties in presenting evidence does not mean
that the ULJ is a party’s advocate. Stassen, 814 N.W.2d at 32.
Relator first argues that the ULJ failed to fully develop the record and assist relator
in presenting important evid ence because the ULJ did not take any steps to obtain
testimony from the Universal employees on whether relator communicated his knee pain
to them or ask relator questions about his communications with them. We disagree.
Here, the ULJ made a statement at th e beginning of the evidentiary hearing
informing the parties that they “have the right to request the hearing be rescheduled so that
additional witnesses and documents can be presented by subpoena if necessary.” The ULJ
also provided the parties with appropriate opportunities to suppleme nt the record during
and after the hearing. Neither relator nor his attorney requested that the Universal
employees testify at the hearing.
Moreover, the communications between relator and the Universal employees, which
occurred nine to ten days before relator called Pro Staff, were not relevant to determine the
content of the conversation between relator and Koolen. The Universal employees did not
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overhear the conversation. And Universal was not relator’s employer. Thus, the ULJ did
not need to sua sponte subpoena the Universal employees.
Relator next argues that the ULJ failed to fully develop the record because the ULJ
declined to accept into evidence relator’s February 2016 medical statement. We are not
persuaded.
The ULJ excluded the Febr uary 2016 medical statement because “it [would] not
help her make her decision.” The statement was not necessary to the ULJ’s determination
because any inconsistency between the Febr uary statement and the July 2016 medical
statement from relator’s post-employment doct or’s visit was already explained through
relator’s testimony. In add ition, the February 2016 medical statement, which addressed
relator’s treated back pain, was not relevant to explain why he quit the position at Universal
due to knee pain. Accordingly, the ULJ did not fail to fully develop the record.
B. The ULJ did not fail to make written findings on the evidence.
A ULJ is required to “make written findi ngs of fact, reasons for decision, and
decision” after the evidentiary hearing and send those to all parties. Minn. Stat. § 268.105,
subd. 1a(a).
Relator first argues that the ULJ failed to make written findings on whether relator
sought an accommodation for his knee pain when he spoke with the Universal employees.
Relator’s argument lacks merit. As analyzed above, rela tor’s communications with the
Universal employees were not relevant to the ULJ’s determination.
Second, relator contends that the ULJ fa iled to make written findings on whether
relator’s English-language proficiency affected the conversation. We disagree because, as
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noted previously, the ULJ’s implicit finding on the language barrier is substantially
sustained by the evidence.
Relator’s third argument is that the ULJ failed to make consis tent findings about
whether relator experienced knee pain. We are not persuaded because the ULJ consistently
acknowledged that relator was experiencing knee pain. Moreover, the ULJ did not cast
doubt on whether relator experienced knee pa in; rather, the ULJ do ubted whether relator
communicated his medical problem to Pro Staff and requested accommodation.
C. The ULJ did not impose an improper burden of proof on relator.
Relator argues that the ULJ improperly pl aced a burden of proof on him when the
ULJ noted that he did not call Koolen as a witness. We disagree.
In both a letter that relator submitted after the hearing and his request for
reconsideration, relator takes issue with the ULJ’s reliance on Nguyen’s testimony and
Koolen’s documentation of the conversation as evidence of its content. When read in
context, the ULJ’s statement that relator could have calle d Koolen as a witness is a
comment made in response to relator’s subsequent correspondence. Thus, the ULJ did not
place an improper burden on rela tor to call Koolen as a witne ss, and relator’s substantial
rights were not prejudiced.
Affirmed.