Amber McCorison, Relator,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0374

Amber McCorison,
Relator,

vs.

Pizza Luce III, Inc.,
Respondent,

Department of Employment and Economic Development,
Respondent.

Filed December 10, 2018
Affirmed
Smith, Tracy M., Judge

Department of Employment and Economic Development
File No. 35984257-3

Amber E. McCorison, Duluth, Minnesota (pro se relator)

Gina K. Janeiro, Jackson Lewis P.C., Minneapolis, Minnesota (for respondent-employer)

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

Considered and decided by Smith, Tracy M., Presiding Judge; Ro denberg, Judge;
and Reilly, Judge.

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U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
Relator Amber E. McCorison was discharged by her employer, res pondent Pizza
Luce III. She failed to particip ate in an evidentiary hearing and was found by an
unemployment-law judge (ULJ) to be ineligible for unemployment benefits on the basis of
employment misconduct. She now challenges the ULJ’s order of af firmation denying her
an additional hearing and affirm ing her ineligibility. Because McCorison did not present
good cause for her failure to participate in the hearing or new evidence in satisfaction of
statutory requirements, we affi rm the ULJ’s decision denying an additional hearing. In
addition, because the record substantially supports the ULJ’s findings of fact and there was
no error in the legal conclusion, we affirm the ineligibility decision.
FACTS
McCorison worked in a kitchen fo r Pizza Luce III in Duluth bef ore she was
discharged in October 2017. A few weeks later, she submitted re sponses to an
unemployment-insurance request fo r information. Explaining why she had been
discharged, McCorison presented a short account of her altercation with a former coworker
that had taken place on September 29, 2017. She wrote:
[The former coworker] told me to calm down because I asked
him not to walk through the expo area.1 He crossed expo again
and I told him again not to cross expo. He turned around and
flung his hands in the air and said what are you going to do
about it. As he walked away I said I should smack you. I did

1 “Expo” is an abbreviation for a job position called expeditor. Employees who work in
that position expedite food at the end of an oven. “Expo area” is where expeditors carry
hot food.

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not mean or say that as a threat. He was directly breaking
kitchen policy and causing a dangerous work environment by
crossing the expo area and I was trying to remind him and he
was treating me rudely. My comment was not made
aggressively or in a threatening tone.

McCorison also noted that she would be sending “written statements from co-workers and
previous management,” but no such documents were submitted.
McCorison was administratively determined by the Minnesota Dep artment of
Employment and Economic Development (DEED) to be eligible for u nemployment
benefits. The determination fou nd that McCorison’s conduct was not disqualifying
employment misconduct. Pizza Luce III appealed the determinatio n. An evidentiary
hearing before a ULJ was scheduled.
About three weeks before the hearing, a notice of hearing was sent to each party.
The notices informed the parties that the hearing would be held by telephone conference
call and that the ULJ would call the parties to participate in the hearing. The notice sent to
McCorison stated: “The telephone number we currently have liste d for you is 000-000-
0000. If this is not correct, please log into your [online] account . . . to make any changes.”
Enclosed with the notices was a document titled “Telephone Hea ring Instructions.”
The instructions warned against failure to participate in the hearing:
If you do not answer when the judge calls you, the judge
will either dismiss your appeal or make a decision based on the
information we have, including testimony from others who
participated in the hearing. If you do not receive a phone call
from the judge within 10 minutes of the start time, call the
Appeals Office.

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On the date of the hearing, the only phone number listed for McCorison was 000-000-0000.
The ULJ managed to find a different number in the system and called that number, but the
person answering the telephone s tated that she did not know McC orison. McCorison did
not participate in the hearing. Nothing in the record suggests, nor does McCorison argue,
that she called the appeals office on the hearing date.
The Telephone Hearing Instructions also advised that the parti cipants “should
submit all evidence before the hearing.” Pizza Luce III submitt ed an 11-page exhibit
including (1) part of the Pizza Luce Employee Handbook, (2) McC orison’s termination
notice, and (3) her performance improvement plans. At the hearing, two representatives of
Pizza Luce III testified, one of whom was the general manager a t the restaurant where
McCorison worked. The record does not contain any evidence submitted by McCorison.
Two days after the hearing, McCorison called DEED and said tha t she had not
received a call for the hearing. She was told that DEED had not had “a phone number listed
for her for the hearing” and that she would have to wait for the ULJ’s decision.
The ULJ thereafter issued his d ecision. Based on the general m anager’s testimony
and the documents submitted by Pizza Luce III, the ULJ found th at “McCorison was
discharged for a pattern of behavior of disrespect to coworkers and for calling a customer
a ‘f---ing idiot.’” Specifically, the ULJ found that McCorison “threatened” a coworker on
September 29, 2017, saying, “I am going to strangle you” and “I am going to kill you.”
The ULJ considered but discredited McCorison’s written statements to the contrary in her
earlier responses to the request f or information. The ULJ concl uded that McCorison was

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discharged due to employment misc onduct and that she was theref ore ineligible for
unemployment benefits.
McCorison filed a request for r econsideration. In her request, McCorison wrote that
she had not been contacted at her telephone number for the hearing. Further, she wrote: “I
also have documentation stating why I was let go that contradicts information made by the
Manager at Pizza Luce during the court process that leads me to believe false statements
had been made.” McCorison did not submit the “documentation” referred to in her request.
In fact, the record does not contain any evidence submitted by McCorison in support of
reconsideration.2 The only information she provided to the ULJ was her paragraph -long
comment in her request for reconsideration. The ULJ issued an o rder of affirmation
denying an additional hearing and affirming his original decision.
This certiorari appeal follows.
D E C I S I O N
This court does not disturb a ULJ’s findings of fact as long a s there is evidence in
the record that substantially supports them. See Gonzalez Diaz v. Three Rivers Cmty.
Action, Inc. , 917 N.W.2d 813, 816 n.4 (Minn. App. 2018) (dismissing the sup posed
difference between the statutory standard of substantial evidence and the supreme court’s
standard of reasonable evidence ). But the ULJ’s interpretation of the unemployment

2 In her submission to this court, McCorison endeavors to give f urther explanations of
(1) why she did not participate in the hearing, (2) why the tes timony at the hearing was
false, and (3) why she was discharged from Pizza Luce III. These explanations are not part
of the record on appeal and are therefore not considered in our analysis. See Appelhof v.
Comm’r of Jobs & Training, 450 N.W.2d 589, 591 (Minn. App. 1990). (“[E]vidence which
was not received below may not be reviewed as part of the record on appeal.”).

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statutes and the ULJ’s ultimate decision whether an applicant is eligible for unemployment
benefits is reviewed de novo. Menyweather v. Fedtech, Inc., 872 N.W.2d 543, 545 (Minn.
App. 2015).
I . T h e U L J d i d n o t a b u s e h i s d i s c r e t i o n i n d e n y i n g M c C o r i s o n a n additional
hearing.

This court does not “reverse a ULJ’s decision to deny an addit ional evidentiary
hearing unless the decision constitutes an abuse of discretion.” Kelly v. Ambassador Press,
Inc., 792 N.W.2d 103, 104 (Minn. App . 2010). A ULJ must order an ad ditional hearing,
and hence abuses his discretion if he denies it, when the party requesting reconsideration
p r e s e n t s ( 1 ) g o o d c a u s e f o r h i s f a i l u r e t o p a r t i c i p a t e i n t h e original hearing or (2) new
evidence in satisfaction of certa in statutory requirements. Min n. Stat. § 268.105,
subd. 2(c), (d) (2018).
A. McCorison did not have good cause for her failure to partici pate in the
hearing.

Where a party who files a request for reconsideration “failed to participate in the
hearing, the unemployment law ju dge must issue an order setting aside the decision and
ordering an additional hearing if the party who failed to parti cipate had good cause for
failing to do so.” Minn. Stat. § 268.105, subd. 2(d). “‘Good ca use’ . . . is a reason that
would have prevented a reasonable person acting with due diligence from participating in
the hearing.” Id.
McCorison argues that there was “good cause” because she was n ot contacted at her
correct telephone number. The ULJ rejected this argument, saying that a reasonable person

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acting with due diligence would have informed DEED of the corre ct telephone number
after reading the notice of hearing.
The ULJ’s decision is not a n abuse of discretion. In Eley v. Southshore Invs., Inc.,
the applicant mistakenly believed that the hearing was on a wrong date. 845 N.W.2d 216,
218 (Minn. App. 2014). And she was unable to confirm the hearing date from a document
because “the [hearing date] did not print off with everything else” when she “tried to print
out all of the necessary appeal documents.” Id. at 219. However, Eley did not try otherwise
to verify her mistaken belief. Id. at 219-20. She eventually failed to participate in the
hearing. Id. at 218. Later, arguing that she missed the hearing for “good c ause,” Eley
offered detailed explanations on why it had been too onerous for her to confirm the hearing
date from sources other than the documents she printed out.3 Id. at 219-20. This court held
that none of Eley’s explanations constituted “good cause.” Id. at 220. That was because,
“if the hearing [date] was not included in the printed documents, a reasonable person acting
with due diligence would have logged back into the [online] system to confirm the hearing
date or would have contacted DEED by telephone to confirm the date.” Id.
Just like Eley could not confirm the hearing date from the pri nted documents,
McCorison could not be assured that the ULJ would call her at h er correct telephone
number. In fact, the notice of hearing, which McCorison does no t dispute that she read,

3 To name a few, Eley explained that: (1) “she had been residing in different locations,
which made the receipt of important mail very difficult;” (2) “ she [did] not have Internet
service readily available to her;” and (3) “DEED’s website [was ] only active from 6:00
a.m. or 7:00 a.m. until 6:00 p.m., which conflict[ed] with her work schedule and
commuting times, so there [was] no time to log onto the website to check her account.” Id.

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gave clear indication that the ULJ would not be able to reach h er because it said her only
number on file was 000-000-0000. Moreover, McCorison never argu ed that she had
difficulty accessing her online benefits account or otherwise c ommunicating with DEED.
Nothing prevented McCorison from seeking confirmation that the ULJ had her correct
telephone number. If Eley did not have “good cause,” McCorison did not, either. A
reasonable person acting with due diligence in McCorison’s circ umstances would have
been able to participate in the hearing.
B. McCorison did not present new evidence in satisfaction of th e statutory
requirements.

Apart from good cause for missing the evidentiary hearing, an additional hearing
must be ordered if a party presents new evidence that satisfies statutory requirements, as
follows:
[An] unemployment law judge must order an additional
hearing if a party shows that evidence which was not submitted
at the 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 hearing was likely false and that the likely false evidence
had an effect on the outcome of the decision.

“Good cause” for purposes of this paragraph is a reason
that would have prevented a reasonable person acting with due
diligence from submitting the evidence.

Minn. Stat. § 268.105, subd. 2(c).
The only information McCorison presented to the ULJ in support of her request for
reconsideration was her written st atement comprising the reques t itself. Again, that

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statement reads, in relevant part: “I also have documentation stating why I was let go that
contradicts information made by the Manager at Pizza Luce durin g the court process that
leads me to believe false statements had been made.” The “documentation” that McCorison
referenced was not submitted.
Because McCorison’s statement h as no corroborating evidence, whether it satisfies
the statutory requirements must ultimately depend on its credib ility. In this case, the ULJ
found the general manager’s testimony regarding McCorison’s dis charge more credible
than the statements from McCorison. This court “gives deference to [a] ULJ’s credibility
determinations.” Cunningham v. Wal-Mart Assocs., Inc. , 809 N.W.2d 231, 235 (Minn.
App. 2011). McCorison’s bare assertion that she has information that contradicts testimony
that the ULJ found credible does not constitute new evidence in satisfaction of the
requirements of Minn. Stat. § 268.105, subd. 2(c).
In sum, the ULJ was not required to give, and thus did not abu se his discretion by
denying, McCorison an additional hearing under Minn. Stat. § 268.105, subd. 2(c) or (d).
II. The ULJ did not err in decidin g that McCorison is ineligible for unemployment
benefits.

Minn. Stat. § 268.095, subd. 4(1) (2018) provides that an empl oyee discharged
because of “employment misconduct ” is not eligible for unemploy ment benefits.
Employment misconduct includes “ any intentional, negligent, or indifferent conduct, on
the job or off the job that displays clearly . . . a serious violation of the standards of behavior
the employer has the right to reasonably expect of the employee.” Id., subd. 6(a).

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The ULJ found that “McCorison was discharged for a pattern of behavior of
disrespect to coworkers and fo r calling a customer a ‘f---ing i diot.’” Based upon his
findings of fact, the ULJ concluded that McCorison engaged in employment misconduct.
A. The evidence in the record substantially supports the ULJ’s findings of
fact.

The ULJ’s specific findings of fact relevant to the employment -misconduct
determination are as follows: (1) “on November 12, 2016, McCori son shouted at a
coworker in the kitchen” and r eceived a written warning about t he incident; (2) on
September 29, 2017, she threatened a coworker stating “I am going to strangle you” and “I
am going to kill you”; (3) on S eptember 29, 2017, she called a customer a “f---ing idiot”;
and (4) the general manager verbally warned McCorison ten times that “she should keep
her voice down and be respectful.”
These findings of fact are drawn directly from the general man ager’s testimony and
the performance improvement plans. The only countervailing evid ence is the written
statements from McCorison that the ULJ found to be less credibl e. Given the deference
due to the ULJ’s credibility determination, not only is there e vidence in the record
supporting the ULJ’s fact-finding, but the record consists most ly of such evidence. The
ULJ’s findings of fact should not be disturbed.
B. The findings of fact warrant the legal conclusion that McCor ison
engaged in employment misconduct.

“ A s a g e n e r a l r u l e , r e f u s i n g t o abide by an employer’s reasona ble policies and
requests amounts to [employment] misconduct.” Schmidgall v. FilmTec Corp. , 644
N.W.2d 801, 804 (Minn. 2002).

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According to the Pizza Luce Empl oyee Handbook, Pizza Luce empl oyees are
expected to hold themselves to standards of conduct that includ e: (1) “[t]reating all
customers, visitors, and coworker s i n a c o u r t e o u s m a n n e r ” a n d (2) “[r]efraining from
behavior or conduct deemed offensive or undesirable.” These policies are reasonable; they
are directly related to the workplace environment and customer experience that Pizza Luce
provides as a restaurant.
And there can be little doubt that McCorison seriously violate d Pizza Luce’s
reasonable policies on September 29, 2017, by threatening her c oworker and insulting a
customer. Moreover, before the i ncident on September 29, 2017, she received multiple
warnings—one written and ten verbal—regarding similar behaviors implicating the same
policies. “[W]hen there are multiple violations of the same rul e involving warnings or
progressive discipline,” it is particularly true that the emplo yee’s failure to abide by the
rule constitutes employment misconduct. Schmidgall, 644 N.W.2d at 806-07.
In sum, the ULJ did not err in deciding that McCorison is inel igible for the
unemployment benefits.
Affirmed.