Daniel Carson, 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This opinion will be unpublished and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
A18-1776

Daniel Carson,
Relator,

vs.

PACT Charter School,
Respondent,

Department of Employment and Economic Development,
Respondent.

Filed July 29, 2019
Affirmed
Smith, Tracy M., Judge

Department of Employment and Economic Development
File No. 36649325-3

Daniel Carson, Coon Rapids, Minnesota (pro se relator)

Peter A. Martin, Kutson Flynn & Deans, Mendota Heights, Minneso ta (for respondent
employer)

Keri A. Phillips, Department of E mployment and Economic Develop ment, St. Paul,
Minnesota (for respondent department)

Considered and decided by Jess on, Presiding Judge; Schellhas, Judge; and Smith,
Tracy M., Judge.

2
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
Relator Daniel Carson’s employm ent with respond ent PACT Charte r School
(PACT) terminated, and Carson sou ght unemployment benefits. An unemployment-law
judge (ULJ) found Carson to be ineligible for benefits on the basis that he quit employment
without a good reason caused by the employer. Carson now challenges the ULJ’s order of
affirmation, arguing that the ULJ failed to discharge the duty to assist parties, that the ULJ
should have given Carson an additional hearing, and that the ULJ’s decision of ineligibility
is not supported by substantial evidence. We affirm.
FACTS
Carson worked for PACT as a facilities coordinator. In April 2 018, Carson received
a written warning stating that he acted contrary to a superviso r’s directive and his own
stated plan by failing to have a storage space open so that staff could access it, and that he
did not properly follow procedures when he rented the school gy m for his personal use.
The warning called for Carson’s signature as confirmation that he understood what was
being warned and had discussed it with his manager. Right above the signature block, the
document stated, “Signing this form does not necessarily indicate that you agree with this
warning.”
Carson refused to sign the warning and filed a grievance with the school board. The
board denied Carson’s grievance and sustained the warning. Thereafter, Carson felt some
staff members avoided him, but he did not complain about the perceived problem to anyone
in authority. In early May 2018, Carson was placed on a paid ad ministrative leave until

3
PACT decided how to proceed. PACT tried to discuss with Carson his persistent refusal to
sign the warning, but Carson did not attend a requested meeting. On May 23, 2018, Carson
and his attorney met with Emily Mertes, PACT’s executive director, and PACT’s attorney.
At that meeting, Carson signed a separation agreement.
Carson sought unemployment bene fits, and respondent Department of Employment
and Economic Development (DEED) sent him a request for informat ion. Answering a
question asking why he quit instead of waiting to see if he wou ld be discharged, Carson
wrote: “My lawyer said it would be better for me to quit and not be fired because it would
reflect poorly on my resume and future opportunities to find em ployment.” PACT
submitted its response to an information request shortly thereafter. In it, PACT stated that
“Carson took the advice of his lawyer and was willing to resign based upon the mutual
agreements in the separation agreement.” PACT also stated: “[The] separation agreement
was agreed upon to prevent information from becoming public due to poor performance
and firing.” After receiving the parties’ initial responses, DE ED conducted an additional
round of fact-finding. DEED asked PACT the specific reason why Carson was separated,
to which PACT replied: “Daniel Carson voluntarily resigned from his position. He signed
a Separation Agreement at his request to ensure a positive rela tionship with the school in
the future due to his four children currently attending the school.”
In August 2018, DEED administratively determined that Carson w as eligible for
unemployment benefits, finding that PACT discharged Carson “because of unsatisfactory
work performance.” PACT appealed the determination, and an evid entiary hearing was
held before a ULJ. Carson appeared pro se at the hearing, and he did not call any witnesses

4
other than himself. The ULJ first took testimony from Carson and Mertes and then let the
parties examine the witnesses. When it was Carson’s turn to cro ss-examine, he asked
Mertes only a few questions then stated that he did not have further questions. In general,
the parties testified to what they had already represented to D EED through written
submissions.
T h e U L J i s s u e d h i s d e c i s i o n o n August 24, 2018. He found that Carson was
ineligible for unemployment bene fits because Carson quit employ ment without a good
reason caused by the employer. Sp ecifically, the ULJ found that , at the May 23 meeting,
“Carson’s attorney advised Carson to quit because he believed the school was going to find
a reason to terminate him” and th at “Carson then resigned becau se he did not want a
discharge on his employment record.” Neither the April warning nor Carson’s perception
that staff avoided him after the warning was found to be a good reason for quitting—neither
would, according to the ULJ, “com pel an average, reasonable worker to quit and become
unemployed.” Carson filed a request for reconsideration, mainly arguing that he wanted to
introduce, as new evidence, testimony by his lawyer who had attended the May 23 meeting.
The ULJ issued an order denying an additional hearing and affirming his original decision.
This certiorari appeal follows.
D E C I S I O N
We review a ULJ’s decision for whether it is: “(1) in violatio n of constitutional
provisions; (2) in excess of the s tatutory authority or jurisdi ction of the department;
(3) made upon unlawful procedure; (4) affected by other error of law; (5) unsupported by
substantial evidence in view of the entire record as submitted; or (6) arbitrary or

5
capricious.” Minn. Stat. § 268.105, subd. 7(d) (2018). As to the eligibility decision, we do
not disturb a ULJ’s findings of fact as long as there is “evide nce in the record that
substantially supports them.” Gonzalez Diaz v. Three Rivers Cmty. Action, Inc. , 917
N.W.2d 813, 815-16 (Minn. App. 2018). But a ULJ’s interpretation of the unemployment
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. The ULJ did not violate his d uty to reasonably assist parties.
Carson cites Thompson v. County of Hennepin to argue that the ULJ violated his
“duty to reasonably assist pro se parties with the presentation of the evidence and the proper
development of the record.” 660 N.W.2d 157, 161 (Minn. App. 200 3). While the rule on
which Thompson is based has since been amended to impose on the ULJ a duty to assist
all parties, the ULJ was still required to assist Carson. Minn. R. 3310.2921 (2019) (“The
unemployment law judge must assi st all parties in the presentat ion of evidence. . . . The
unemployment law judge must ensure that all relevant facts are clearly and fully
developed.”) Carson argues that t he ULJ violated his duty by “f ail[ing] to inform both
parties that . . . the parties ha ve the right to request that t he hearing be continued so that
additional witnesses and documents can be presented, by subpoena if necessary.” He also
characterizes this alleged failu re to notify the parties of the ir rights as a due-process
violation under Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893 (1976). Had the ULJ let
him know, Carson argues, he would have called his lawyer who was present at the May 23
meeting to testify.

6
Carson’s argument fails because the ULJ did provide notice of t he parties’ right to
continue the hearing and secure evidence through subpoena. At the hearing, before taking
any testimony, the ULJ stated:
[Y]ou do have the right to re quest that the hearing be
rescheduled if there is specific relevant evidence, like
documents or witnesses that are outside of your control that
need to be obtained by subpoena. If this is a concern that you
have, please let me know. Do any of you have questions or
concerns before we continue?

Carson answered: “Nope, no question right now.”
Carson also argues that the ULJ stopped him from asking questions of Mertes during
the hearing and thereby inhib ited his ability to fully develop the record. Specifically,
Carson complains that he could not cross-examine Mertes on her alleged failure to produce
timely performance reviews for PACT employees. But Carson was not stopped from asking
that question. The only question that the ULJ stopped Carson from asking was the question
to Mertes of why Carson had not signed the April warning. The ULJ explained that Mertes
could not “answer the question of why [Carson] did or did not d o something” and that
Carson could testify to such information without “need[ing] to try to make [Mertes] guess
what’s in [Carson’s] head.” Because Carson does not argue that the ULJ needed to allow
that question for proper development of the record and Carson was not stopped from asking
any other questions, his argument fails. The ULJ did not violat e his duty to reasonably
assist Carson.

7
II. The ULJ did not err by denyin g Carson an additional hearing.
Carson argues that the ULJ shou ld have granted him an addition al hearing on the
request for reconsideration. ULJs must order an additional hear ing when the party
requesting reconsideration 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) (2018). We review the decisio n to deny reconsideration
for an abuse of discretion. Kelly v. Ambassador Press, Inc., 792 N.W.2d 103, 104 (Minn.
App. 2010).
Carson cites to the first part of subdivision 2(c) and argues that his lawyer’s
testimony would likely change the outcome of the decision. But Carson does not explain
why he could not present his lawyer’s testimony at the initial hearing, except that the ULJ
did not inform him of his right t o continue the hearing and sub poena the lawyer if
necessary. As discussed earlier, the ULJ did so inform Carson. Carson fails to show the
required “good cause,” and, thus, the ULJ did not abuse his dis cretion by denying Carson
an additional hearing under subdivision 2(c)(1).

8
The ULJ was not required to grant Carson an additional hearing under
subdivision 2(c)(2), either. The only information Carson presen ted to the ULJ in support
of his request for reconsideration was his written statement co mprising the request itself.
In that statement, Carson impliedly asserted that Mertes’s test imony—that Carson would
not have been discharged on May 23 if he had not resigned—was false. He wrote:
The applicant, being a reasonable employee, chose to resign
over the choice offered to him from the employer to either
resign or be fired because of the words spoken by the employer
to the applicant’s lawyer on May 23rd, 2018 and those words
were “our investigation is com plete and we are planning on
discharging your client, Dan Carson, at the end of this meeting
today.”

We first note that this factual statement, which Carson repeats in his briefing to this
court, was not received into evide nce in the proceeding below. And it does not comport
with Carson’s earlier testimony. At the hearing, Carson testified that his lawyer “felt like”
PACT was “just going to get rid of [Carson]” and that his lawye r said to him: “I think
they’re just, they’re just planning on firing you. They’re just going to come up with a
reason. They don’t have to give you a reason.” When asked, at the hearing, about how long
the termination process would have been had he not resigned on May 23, Carson answered:
“I would imagine it would have went pretty quick, because they, I don’t know if she wanted
me around during the summer working on projects or not, so.” The statement that Carson
newly presented to the ULJ on hi s request for reconsideration is not part of the record on
appeal and, generally, should not be 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.”).

9
But, because the issue here is wh ether the ULJ abused its discretion in determining
that an additional hearing was not warranted and ULJs do consid er new evidence for that
limited purpose, Minn. Stat. § 268 .105, subd. 2(c), we gauge th e evidentiary value of
Carson’s new statement. Carson’ s statement has no corroborating evidence such as the
lawyer’s affidavit. Thus, whether it is likely to prove Mertes’ s testimony to be false must
ultimately depend on its credibility. We conclude that the ULJ was within his discretion to
not credit Carson’s belated assertion over Mertes’s sworn testi mony, not only in light of
the usual deference due to a ULJ’s credibility determination, Cunningham v. Wal-Mart
Assocs., Inc. , 809 N.W.2d 231, 235 (Minn. App. 2011), but also because Carso n’s
statement is not in accord with his earlier testimony. The ULJ did not abuse his discretion
by denying Carson an additional hearing.
III. The ULJ’s decision to find Carson ineligible for unemploym ent benefits is
supported by substantial evidence.

A. Quitting employment
Unless an exception applies, an applicant is ineligible for em ployment benefits if
the applicant quit. Minn. Stat. § 268.095, subd. 1 (2018). Cars on argues that he “did not
quit, but was discharged.” “Whether an employee has been discha rged or voluntarily quit
is a question of fact subject to [this court’s] deference.” Stassen v. Lone Mountain Truck
Leasing, LLC, 814 N.W.2d 25, 31 (Minn. App. 2012). “A discharge from employ ment
occurs when any words or actions by an employer would lead a re asonable employee to
believe that the employer will no longer allow the employee to work for the employer in
any capacity.” Minn. Stat. § 268.095, subd. 5(a) (2018). “An em ployee who has been

10
notified that the employee will be discharged in the future, wh o chooses to end the
employment while employment in any capacity is still available, has quit the employment.”
Id., subd. 2(c) (2018).
Carson makes three specific arguments that he was in fact disc harged. First, Carson
argues that PACT conceded, in its submission to DEED, that Carson had been discharged.
The submission that he is referring to seems to be PACT’s initi al response to the
unemployment-insurance request for information. In it, PACT sta ted that the separation
agreement was signed on May 23 “to prevent information from bec oming public due to
poor performance and firing.” Presumably, based on that respons e , D E E D i s s u e d t h e
determination of eligibility, findi ng that PACT discharged Cars on because of
unsatisfactory work performance.
On the record as a whole, however, the ULJ reasonably did not construe PACT’s
initial response as a concession that Carson was discharged. Fi rst, PACT did not specify
whose motivation or intent was being described when it said: “A separation agreement was
agreed upon to prevent information from becoming public due to poor performance and
firing.” The statement can be und erstood to refer to Carson’s b elief at the time that he
would eventually be fired if he did not resign. That interpreta tion is in line with PACT’s
later submission to DEED. When as ked what “the specific reason t h a t [ C a r s o n ] w a s
separated” was, PACT answered: “ Daniel Carson voluntarily resig ned from his position.
He signed a Separation Agreement at his request to ensure a positive relationship with the
school in the future due to his four children currently attending the school.” Also, PACT’s
principal argument before the ULJ was, from the outset, that Ca rson voluntarily resigned

11
by signing the separation agreemen t. PACT consistently argued t hat it did not discharge
Carson at the May 23 meeting and made no concession to the contrary.
Second, Carson argues that the separation agreement says he wa s being discharged.
This argument is inaccurate. The separation agreement states th at “[Carson] has
determined, for personal reasons, that severing his employment with [PACT] and seeking
other employment oppor tunities will be in his best interests.” The agreement does not
express any initiative on PACT’s part to terminate the employment. Instead, it supports the
finding that Carson quit.
Third, Carson asserts that his lawyer communicated to him durin g the May 23
meeting that “Carson had to sign the separation agreement or be terminated that day.” But,
as explained above, this factual assertion is not part of the r ecord. The record, including
Carson’s own testimony, substantially supports the ULJ’s finding that Carson quit.
B. Good reason for quitting
Even if Carson quit his employment, he could be eligible for u nemployment benefits
if he quit “because of a good reason caused by the employer.” M inn. Stat. § 268.095,
subd. 1(1).
A good reason caused by the employer for quitting is a reason:
(1) that is directly related to the employment and for
which the employer is responsible;
(2) that is adverse to the worker; and
(3) that would compel an average, reasonable worker to
quit and become unemployed rather than remaining in the
employment.

12
Minn. Stat. § 268.095, subd. 3(a) (2018). The ULJ decided that the April warning, which
Carson argues was unfounded, and the ensuing interaction betwee n Carson and PACT
would not have “compel[led] an average, reasonable worker to quit.” Id.
The ULJ’s decision is substantia lly supported by the record. Th e record suggests
that PACT tried to discuss with Carson his persistent refusal to sign the warning but Carson
did not come to the meeting. A reasonable employee, who believe d he had been wrongly
accused of something, would hav e actively pursued a discussion and tried to resolve the
issue in a constructive way, rather than feeling compelled to r esign. The only
countervailing evidence exists in the form of Carson’s bare ass ertions impugning the
motive behind the April warning and PACT’s reaction to Carson’s refusal to sign the
warning. Given the deference due to the ULJ’s credibility deter mination, Carson fails to
provide a basis for overturning the ULJ’s decision.
C. Reliability of Mertes’s testimony
Carson argues that the ULJ’s decision is not substantially sup ported by the record
because Mertes demonstrated a pattern of falsehood. Apart from Carson’s criticism of
Mertes’s credibility, which this court cannot credit in contrav ention of the ULJ’s factual
findings, the only pieces of evidence that Carson cites in supp ort are PACT’s initial
response to the request for information and the nondisparagement clause in the separation
agreement. First, Carson argues that Mertes contradicted PACT’s response to the request
for information by testifying that Carson voluntarily resigned. Mertes’s testimony did not
contradict the response, howeve r, because, as discussed earlier , the response was not a

13
concession that Carson had been discharged. Mertes’s testimony was consistent with
PACT’s position held throughout the proceeding.
Second, Carson suggests that Mertes’s testimony against his re ceiving
unemployment benefits was disingenuous because PACT “agree[d] t o not, in any way,
make any public or private stat ements, written or oral, to anyo ne, which disparages,
denigrates, criticizes, maligns or otherwise holds [Carson] in a bad or unflattering light or
which impugns or harms the reputation of [Carson].” But Carson does not explain how the
non-disparagement clause was vio lated by Mertes. No one in this case has argued that
Carson must be denied unemploymen t benefits because he engaged in misconduct. The
references to the April warning and the ensuing events were made either to give context to
the May 23 meeting or to respond to Carson’s claim that he was subjected to a hostile work
environment. Also, even if PACT or Mertes violated the nondisparagement clause, that, in
itself, does not show that any of Mertes’s testimony was untrut hful. Carson fails to show
that the ULJ’s finding of ineligibility is not supported by substantial evidence.
Affirmed.