Nse Umana, 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This opinion will be unpublished and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
A16-1964

Nse Umana,
Relator,

vs.

FedEx Ground Package System, Inc.,
Respondent,

Department of Employment and Economic Development,
Respondent.

Filed September 5, 2017
Affirmed
Bratvold, Judge

Department of Employment and Economic Development
File No. 34822164-3

Thomas H. Boyd, Matthew D. Callanan, Winthrop & Weinstine, P.A., Minneapolis,
Minnesota (for relator)

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

Considered and decided by Bratvold, Presiding Judge; Jesson, Judge; and
Randall, Judge.∗

∗ Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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U N P U B L I S H E D O P I N I O N
BRATVOLD, Judge
Relator challenges the unemployment-law judge’s (ULJ) decision that he was
ineligible for unemployment benefits because he was discharged for employment
misconduct after he failed to work three scheduled shifts and did not report his absences.
Relator argues that the ULJ: (1) made unsupported factual findings and credibility
determinations; (2) erred by determining that he committed employment misconduct; and
(3) failed to adequately develop the record. We affirm.
FACTS
From August 2015 to June 8, 2016, relator Nse Umana was employed as a part-time
package handler for respondent FedEx Ground Package System, Inc. (FedEx). When
Umana began his employment, he signed an “employee handbook acknowledgment” form
stating that he received a copy of FedEx’s employee handbook and understood its policies.
The handbook included a “no call/no show” policy, which provided that employees may
be terminated for failing to report to work for two consecutive days without notifying
management of their absence.
On May 27, 2016, Umana’s direct supervisor, A.N., sent him home during the
middle of his shift because he was not working “to the best of his ability” and fell behind.
Umana initially thought A.N. was joking, and he spoke with A.N.’s boss, K.F. , who told
him “today you ha ve to go home, try and come back tomorrow, put a full effort in, we’d
have you back again tomorrow.”
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On May 28, Umana called A.N. to report that he would be absent from his scheduled
shift that day. Umana testified that he did not go to work “because of what happened
yesterday,” and he called A.N. because he did not understand what he had done wrong .
A.N. told Umana to call the attendance hotline. Umana then reported his absence by leaving
a voice message on the hotline, which was later retrieved by K.F. According to K.F. ,
Umana’s message did not say why he was absent.
On June 1, 2, and 3, Umana did not report to work his scheduled shifts, nor did he
call the hotline, or otherwise contact management to report his absences. Each day, K.F.
left Umana a voice message and documented his absence. On June 8, 2016, FedEx
discharged Umana for his three consecutive no call/no shows.
Umana applied for unemployment benefits, and respondent Minnesota Department
of Employment and Economic Development (DEED) determined that he was ineligible
because FedEx had discharged him for employment misconduct. Umana appealed the
decision, and the ULJ held a telephone hearing. Umana, K.F., and a FedEx human
resources (HR) business partner testified. A.N. was scheduled to testify but did not appear
for the hearing.
Umana testified that he did not know he was allowed to return to work on May 28,
and he believed his return was conditioned on him being able to work harder. Umana also
testified he did not work on June 1, 2, and 3 because he had “already been ordered to go
home” on May 27. Umana explained that he was afraid to return to work, but added that
he did not tell anyone at FedEx that he was afraid. K.F. testified that he did not know that
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Umana was afraid or witness anything that would have made Umana fearful. The HR
business partner testified similarly.
On August 29, 2016, the ULJ affirmed the ineligibility determination, concluding
that Umana’s three consecutive no call/no shows amounted to employment misconduct
because the y “seriously violated” FedEx’s reasonable expectation that “employees will
work their scheduled shifts.” The ULJ found K.F. more credible than Umana. The ULJ
discredited Umana’s claim that he feared going to work, and found that neither A.N. nor
K.F. “did anything threatening or inappropriate.” After Umana requested reconsideration,
the ULJ affirmed her order. Umana appeals by writ of certiorari.
D E C I S I O N
An employee who is discharged for employment misconduct is ineligible for
unemployment benefits. Minn. Stat. § 268.095, subd. 4 (2016). “Employment misconduct
means any intentional, negligent, or indifferent conduct, on the job or off the job that
displays clearly: (1) a serious violation of the standards of behavior the employer has the
right to reasonably expect of the employee; or (2) a substantial lack of concern for the
employment.” Minn. Stat. § 268.095, subd. 6(a) (2016). This statutory definition is
“exclusive and no other definition applies.” Minn. Stat. § 268.095, subd. 6(e); Wilson v.
Mortg. Res. Ctr., Inc., 888 N.W.2d 452, 456– 60 (Minn. 2016). The legislature has carved
out an exception to the definition of misconduct for “conduct an average reasonable
employee would have engaged in under the circumstances.” Minn. Stat. § 268.095, subd.
6(b)(4). Because the unemployment-benefits statute is “remedial in nature,” it “must be
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applied in favor of awarding” benefits, and disqualifying provisions “must be narrowly
construed.” Minn. Stat. § 268.031, subd. 2 (2016).
We review a ULJ’s decision to determine whether it prejudiced the relator’s
substantial rights because it was affected by legal error, “unsupported by substantial
evidence” in the record, or “arbitrary or capricious.” Minn. Stat. § 268.105, subd.
7(d)(3)– (6) (2016). Whether an employee engaged in employment misconduct is a mixed
question of fact and law. Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).
Whether an employee did a particular act is a fact question. Skarhus v. Davanni’s Inc., 721
N.W.2d 340, 344 (Minn. App. 2006). We view factual findings in the light most favorable
to the ULJ’s decision and will not disturb them if reasonably supported by the record. Stagg
v. Vintage Place Inc., 796 N.W.2d 312, 315 (Minn. 2011) (quotation omitted). Whether a
particular act is regarded as disqualifying misconduct is a legal question, which we review
de novo. White v. Univ. of Minn. Physicians Corp., 875 N.W.2d 351, 355 (Minn. App.
2016). We defer to the ULJ’s credibility determinations. Id.
I. The record supports the ULJ’s factual and credibility determinations.
Umana challenges the ULJ’s finding that neither A.N. nor K.F. did “anything
threatening or inappropriate.” Umana relies on his own testimony that A.N. yelled at him
on May 27, and that he was afraid to return to work. The ULJ, however, discredited
Umana’s testimony. Generally, “[c]redibility determinations are the exclusive province of
the ULJ and will not be disturbed on appeal.” Bangtson v. Allina Med. Grp. , 766 N.W.2d
328, 332 (Minn. App. 2009) (quotation omitted).
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Umana nonetheless argues that substantial evidence does not support the ULJ’s
stated reasons for the credibility determinations. A ULJ must “set out the reason for
crediting or discrediting” testimony when credibility plays a “sig nificant” role in the
decision. Minn. Stat. § 268.105, subd. 1a(a) (2016). Credibility played a significant role in
this case because the ULJ stated that its findings were based “in large part” on its decision
to credit K.F.
“When assessing witness credibility, the ULJ may consider all relevant factors,
including, but not limited to, the witness’s interest in the case’s outcome, the source of the
witness’s information, the witness’s demeanor and experience, and the reasonableness of
the witness’s testimony.” Wichmann v. Travalia & U.S. Directives, Inc., 729 N.W.2d 23,
28 (Minn. App. 2007 ). Here, the ULJ explained that K.F. was credible because his
testimony “was based, in part, on firsthand knowledge, it was supported by [the HR
business partner], and it presented a more logical explanation of events.” The ULJ
discredited Umana because nothing he “alleged would lead an employee to fear f or his
life,” “[h]e did not report his alleged fears to” FedEx, and “[i]t is simply not credible that,
first, Umana felt threatened, and second, that he would then call both [of] the people he felt
threatened by.”
Umana argues that the ULJ’s decision to credit K.F. was erroneous for three reasons.
First, K.F. did not witness the May 27 conversation between A.N. and Umana. But the ULJ
stated that K.F.’s testimony was based “in part” on first-hand knowledge. K.F. had first-
hand knowledge about several key f acts; for example, A.N. came to talk to K.F. about
Umana’s poor work performance, and K.F. authorized A.N. to send Umana home. K.F.
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also spoke with Umana that day and told him to go home. Additionally, K.F. received
Umana’s May 28 voice message on the atte ndance hotline. We conclude that the record
supports the ULJ’s reasoning.
Second, Umana contends that FedEx testimony was based on hearsay, and he was
the only witness who had first-hand knowledge of the conversation with A.N. on May 27.
But a ULJ is not bound by the rules of evidence and “ may receive any evidence that
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.”
Minn. R. 3310.2922. We conclude that it was reasonable for the ULJ to rely on testimony
from K.F. and the HR business partner because each were familiar with Umana’s discharge
and the no call/no show policy.
Third, Umana argues, and DEED concedes, that the ULJ mischaracterized a portion
of his testimony. Umana testified that “I’m a very peaceful person. I like [the] workplace,
the job is done in a peaceful atmosphere.” The ULJ interpreted this testimony to mean that
it was “unlikely” Umana felt threatened by his manager’s “tone” in a peaceful atmosphere.
We agree that the ULJ misinterpreted Umana’s testimony, but Umana does not point to
any resulting prejudice. The ULJ did not rely heavily on this portion of Umana’s testimony,
and the record supports the ULJ’s other reasons for crediting K.F. over Umana.
For the reasons discussed, the record supports the ULJ’s factual and credibility
determinations.
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II. The ULJ did not err in concluding that Umana was ineligible for
unemployment benefits because FedEx discharge d him for employment
misconduct.

Generally, an employee’s refusal “to abide by an employer’s reasonable policies
and requests amounts to disqualifying misconduct.” Schmidgall, 644 N.W.2d at 804. An
employer has the right “to establish and enforce reasonable rules governing employee
absences.” Cunningham v. Wal-Mart Assocs., Inc., 809 N.W.2d 231, 235 (Minn. App.
2011). A single unexcused absence from work may constitute misconduct. Hanson v.
Crestliner Inc., 772 N.W.2d 539, 543 (Minn. App. 2009).
Umana does not dispute that he violated the no call/no show policy or that the policy
establishes a reasonable expectation of employee behavior. Rather, relying on the
exception under Minn. Stat. § 268.095, subd. 6(b)(4), Umana argues that his violation of
the policy was reasonable under the circumstances because: (1) management ordered him
to go home on May 27, and “the issue” was “not resolved”; and (2) management’s “actions”
caused him “great fear.”
Umana’s “unresolved- issue” argument is raised for the first time on appeal as a
reason for violating the absence policy . During the administrative proceeding and in his
reconsideration request, Umana argued that he violated the absence policy because he felt
afraid. We consider Umana’s “unresolved-issue” argument because our review of the
hearing transcript shows that Umana alluded to an unresolved issue with his supervisors,
which he believed justified his unreported absences. The ULJ considered this testimony,
but rejected it and found that Umana “chose not to work.”
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The record supports the ULJ’s factual determination. Umana testified that he knew
he needed to report any absence from his shift. Umana also testified that K.F. told him that
he could “try and come back tomorrow, put a full effort in, we’d have you back again
tomorrow.” Additionally, Umana complied with the no call/no show policy on May 28,
which demonstrates he knew he needed to report his absence, even if he believed there was
an unresolved issue. Finally, K.F.’s testimony, which the ULJ credited, contradicts
Umana’s assertion that he told his supervisors on May 28 that he wanted to discuss the
reasons for being sent home. Umana’s claim is based solely on his own testimony, which
the ULJ discredited.
Turning to Umana’s second argument, the ULJ found that neither K.F. nor A.N.
acted in a threatening manner towards Umana , and Umana’s testimony that he felt afraid
lacked credibility. The ULJ also concluded that, even if Umana’s testimony were to be
credited, he should have either “reported to work or reported his absences on June 1, 2, and
3.” Because record evidence supports the ULJ’s factual and credibility determinations, the
ULJ did not err in concluding that FedEx discharged Umana for employment misconduct.
In short, the ULJ did not err in its conclusion that a reasonable employee under the
circumstances would have either reported to work or notified FedEx that he would be
absent on June 1, 2, and 3. Stagg, 796 N.W.2d at 316 (concluding that employee’s five
attendance-policy violations constituted misconduct); Cunningham, 809 N.W.2d at 235
(same); Wichmann, 729 N.W.2d at 28 (affirming denial of benefits based on employment
misconduct because employee “gave no notice of his absence ”). Therefore, Umana is
ineligible for unemployment benefits.
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III. The ULJ adequately developed the record and assisted Umana in developing
the record.

A ULJ must “ensure that all relevant facts are clearly and fully developed,” and
assist all parties in developing an adequate record. Minn. R. 3310.2921; see also White,
875 N.W.2d at 355–57 (remanding case to ULJ because ULJ did not assist appellant in
developing record regarding a relevant fact). But unemployment hearings are adversarial
in nature; the ULJ must not act as a party’s advocate and must “maintain neutrality to assure
fairness to all parties.” Stassen v. Lone Mountain Truck Leasing, LLC, 814 N.W.2d 25, 32
(Minn. App. 2012).
Umana argues that the ULJ did not ask questions about his alternative reasons for
violating the no call/no show policy and points to three ways in which the ULJ could have
better developed the record. First, the ULJ did not ask Umana whether he believed he could
return to work on June 1, 2, and 3. Umana testified that he did not know he could return to
work on May 28. The ULJ then specifically asked Umana what he expected after he
reported his absence on May 28, and whether he believed the employment relationship was
over; Umana responded that he did not believe the relationship was over, but he was
“afraid” to return to work. The ULJ also asked Umana about what K.F. had said to him on
May 27, and Umana testified that K.F. told him to return if he could “work harder.” We
conclude the ULJ sufficiently developed the record regarding whether Umana reasonably
expected that he could return to work.
Second, the ULJ did not ask whether Umana intended his May 28 voice message to
act as “a type of ‘standing call-in’ or something similar.” But Umana testified that he knew
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that “if I am to be absent from a shift I would, I have called.” Also, no record evidence
indicates that FedEx allowed its employees to make a “standing call-in” for multiple
absences.
Third, the ULJ did not ask K.F. about what he said in the three voice messages he
left for Umana. Umana testified that he did not talk to anyone at FedEx after May 28. And
no record evidence indicates that Umana received or listened to the voice messages .
Moreover, Umana does not point to any reason why information about the June voice
messages would affect the outcome. We conclude that the ULJ sufficiently developed the
record on the relevant facts.
Umana also maintains that the ULJ interrupted him and prevented him from
providing relevant testimony .1 Umana relies on i solated portions of the record; for
example, the ULJ told Umana he was getting “a little repetitive” when he testified that “the
issue is scheduling,” and the ULJ stopped Umana from questioning K.F. about employee
retention because it was irrelevant to the eligibility determination. We conclude that t he
ULJ acted within its authority in controlling the hearing, and we discern no prejudice
resulting from these evidentiary rulings. See Minn. R. 3310.2921 (“The unemployment law
judge may limit repetitious testimony and arguments.”); Minn. R. 3310.2922 (“An
unemployment law judge may exclude any evidence that is irrelevant, immaterial,
unreliable, or unduly repetitious.”); see also Stassen, 814 N.W.2d at 32 (concluding that

1 Umana’s reconsideration request and appellate brief contain terse references to a safety
issue regarding “understaffing, high turnover, and poor morale.” We conclude that the ULJ
correctly rejected this issue as unsupported in the record.
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the ULJ did not prejudice unrepresented relator by interrupting him during witness
examination).
Umana next argues that “if the ULJ was going to rely so heavily on [A.N.’s] actions,
it should have sua sponte granted a continuance until [A.N.] was available” to testify. See
Minn. Stat. § 26 8.188(1) (2016) (stating that a ULJ may subpoena witnesses); Minn. R.
3310.2908 (stating that a ULJ may continue a hearing if “additional evidence is necessary
for a proper result”); Minn. R. 3310.2914 (“The unemployment law judge may issue a
subpoena even if a party has not requested one.”). A.N. was scheduled to testify, but FedEx
informed the ULJ at the beginning of the hearing that he was not available to testify . The
ULJ informed the parties that they could request a continuance so that “relevant documents
or witnesses can be presented by subpoena if necessary.” Umana did not request such a
continuance, and he does not point to any reason why A.N.’s testimony would change the
outcome. The ULJ did not err by failing to sua sponte subpoena A.N.
In closing, we note that the record suggests that there were language difficulties
during the administrative proceedings. For instance, in response to a question whether he
quit or was discharged, Umana testified that he did not “know the full meaning of
discharge.” A ULJ “must provide an interpreter, when necessary, upon the request of a
party.” Minn. R. 3310.2911. Umana did not request an interpreter when given the option
to do so and does not argue on appeal that the ULJ should have provided an interpreter.
But even when a party does not request an interpreter, a ULJ “must continue any hearing
where a witness or party needs an interpreter in order to be understood or to understand the
proceedings.” Minn. R. 3310.2911 (emphasis added). After reviewing the record, we
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conclude that Umana’s response alerted the ULJ to language difficulties, and the better
practice would have been for the ULJ, at the very least, to have made additional inquiries
and given Umana a second opportunity to request an interpreter.
For two reasons, we conclude that Umana received a fair hearing and that neither
reversal nor remand is warranted. First, Umana did not raise language as a barrier either
before this court or in his reconsideration request to the ULJ. At no point has Umana
claimed that he did not understand the proceedings. Second, after reviewing the record as
a whole, we conclude that Umana understood the proceedings and the questions asked. See
Lamah v. Doherty Emp’t Grp., 737 N.W.2d 595, 602 (Minn. App. 2007) (concluding that
remand was not necessary when relator did not request an interpreter, and the record as a
whole d emonstrated that he understood the proceedings); see also Ywswf v. Teleplan
Wireless Servs., Inc., 726 N.W.2d 525, 530 (Minn. App. 2007) (concluding that relator
received a fair hearing because she did not request an interpreter and there was no
indication that “she did not understand the proceedings, or that the ULJ did not understand
her.”).
Affirmed.