Erwin Butler, 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This opinion will be unpublished and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
A18-1822

Erwin Butler,
Relator,

vs.

Mahkahta Trucking,
Respondent,

Department of Employment and Economic Development,
Respondent.

Filed July 22, 2019
Affirmed
Bratvold, Judge

Department of Employment and Economic Development
Case No. 36324561-5

Richard C. Swenson, Klun Law Firm, P.A., Ely, Minnesota (for relator)

Mahkahta Trucking, Eveleth, Minnesota (respondent-employer)

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

Considered and decided by Larkin, Presiding Judge; Slieter, Judge; and Bratvold,
Judge.
2
U N P U B L I S H E D O P I N I O N
BRATVOLD, Judge
Relator challenges an unemployment-law judge’s (ULJ) determination that he is
ineligible for unemployment benefits because he was discharged for employment
misconduct after he negligently operated a dump truck. Because the ULJ’s decision is
supported by substantial evidence, and because the ULJ did not abuse her discretion in
denying Butler’s motion for reconsideration, we affirm.
FACTS
Relator Erwin Butler began working as a driver for respondent Mahkahta Trucking
(Mahkahta) on May 8, 2016.
On October 9, 2017, Butler was driving a dump truck for Mahkahta and taking loads
of mud from Duluth to a “pit” in Carlton. After dumping a load at the pit in the evening,
Butler “forgot to put the bed of the dump truck down before leaving the site.” Butler then
drove away from the jobsite and onto State Highway 45. After driving about a quarter of a
mile on the highway , Butler’s truck box struck a power line, which he failed to notice.
About a block later, Butler’s truck box, still in the upright position, struck an interstate
overpass. The force of the impact “caused extensive damage to the bridge that he hit” and
to Mahkahta’s truck, which had the truck box ripped off . Before the accident, Butler “did
not check his rearview mirror on October 9.” Butler reported the accident to Mahkahta and
the police around 6:30 p.m., and he remained at the scene until Shelly Holmes, Mahkahta’s
owner, arrived.
3
Mahkahta discharged Butler on October 9. Mahkahta’s insurance carrier had
informed Holmes that “it would no longer cover Butler as a driver.”1 A few days later, the
state charged Butler with a petty misdemeanor for driving a vehicle with a height of over
13 feet six inches. See Minn. Stat. § 169.81, subd. 1(a ) (2016) (“[N]o vehicle unladen or
with load shall exceed a height of 13 feet six inches.”); see also Minn. Stat. § 169.80,
subd. 1(a) (2016) (providing that violation of size, weight, and load restrictions is a
misdemeanor). Butler later entered an Alford plea on the traffic violation and was
convicted.2
Butler applied for unemployment benefits. Respondent Department of Employment
and Economic Development (DEED) determined that Butler was ineligible for
unemployment benefits because he was discharged for employment misconduct. Butler
appealed and the ULJ conducted a telephone evidentiary hearing.
Butler, represented by counsel, and Holmes provided testimony. Regarding the
October 2017 accident, Holmes testified that Butler should have noticed his truck box was
raised by looking “in his mirrors.” She also testified that the insurance company determined

1 Holmes testified, in part, that Mahkahta’s insurer refused to cover Butler because he had
two accidents in one year. Butler was also involved in an accident in May 2017. Butler
backed up his dump truck over an electrical manhole at a job site, causing damage. Butler
stated that he relied on directions from a foreman. The ULJ’s first written decision
addressed the May 2017 accident and determined that Butler “ was not negligent.” In the
ULJ’s decision after reconsideration, she did not address the May 2017 accident.

2 In an Alford plea, a defendant consents to a conviction without admitting guilt. Doe 136
v. Liebsch, 872 N.W.2d 875, 879 (Minn. 2015) (citing North Carolina v. Alford, 400
U.S. 25, 37, 91 S. Ct. 160, 167 (1970)). The hearing record indicates that Butler entered
his plea and was convicted in March 2018, but the plea and record of conviction are not
included in the appellate record.
4
nothing was wrong with the truck-box hydraulics. Butler testified that he did not recall how
often he checked his mirrors. He also testified that he put the truck box down before he left
the pit and he “disengaged” the truck-box hydraulics. Because he found the truck-box
controls in “neutral” after the accident, he asserted that the truck box should have been
down. Butler testified that he believed “something in the electrical” systems caused the
truck box to lift up. Butler also offered brief testimony about his Alford plea. Butler’s
attorney asked the ULJ to take judicial notice of Butler’s Alford plea to the traffic violation.
The ULJ issued a written decision in April 2018, finding that Butler was eligible for
benefits because he was terminated “for reasons other than employment misconduct.”
Regarding the October 2017 accident, the ULJ found that Butler “check[ed] the controls”
before leaving the jobsite and “checked his mirrors,” but that he did not know the truck
box “had lifted” or “engaged.” The ULJ also found that a “preponderance of the evidence
shows that the box was engaged . . . because of a technical malfunction that was not within
Butler’s control.” The ULJ concluded that Butler’s driving w as not misconduct. Because
Butler was discharged for reasons other than misconduct, the ULJ determined that he was
eligible for unemployment benefits.
Mahkahta requested reconsideration, asserting that it could submit “statements from
mechanics, truck specialists, [the Minnesota Department of Transportation (DOT)] or
others to verify that there could not be [a] technical malfunction” with the truck box. The
ULJ granted Mahkahta’s request, set aside her previous decision and findings of fact, and
conducted a second evidentiary hearing, in part, to reopen the record for more information
about the October 2017 accident.
5
At the second evidentiary hearing, the only witness to testify was Shane Lokken, a
dispatcher for Mahkahta. Lokken “oversee[s] the truck shop mechanics” and has “a degree
in truck trailer maintenance and mechanics.” Lokken testified that he went to the scene of
the October 2017 incident, looked inside Butler’s dump truck, and saw the switches that
controlled the truck box were in “[o]ff and neutral,” which is consistent with the truck box
being left “in the air.”3 Regarding whether an electrical malfunction could have caused the
truck box to lift, Lokken testified: “It’s two separate systems. It’s not capable of doing
that.” Lokken also testified that the truck box is “completely mechanically operated” and
that there “is no electrical whatsoever.” He described the lift system as “air over
hydraulics.” After Lokken finished testifying, Butler requested a continuance so he could
subpoena two DOT officers who were at the scene of the accident. The ULJ granted
Butler’s request.
The evidentiary hearing continued in August 2018. Initially, the ULJ stated that she
was taking judicial notice of “an Alford Plea that [Butler] made on March 8 of 2018.” The
ULJ also received testimony from four people. Butler, Holmes, and Lokken largely
repeated earlier testimony. The only new witness was DOT Officer Dinehart, who
inspected the accident scene shortly after the collision occurred. Dinehart testified that she
did not inspect or photograph the truck box’s operating mechanism.

3 Lokken testified that two switches control the dump truck box. The “power switch,”
which is either on or off, activates the drive for the pump to raise the truck box, but does
not actually move the truck box up or down. A second switch has three positions: up, down,
or neutral. Lokken testified that if an operator leaves the second switch in the neutral
position while the truck box is already up, this “will hold the box up . . . and it will stay
there.”
6
On August 20, 2018, the ULJ issued a written decision, determining that Butler was
ineligible for unemployment benefits because he was discharged for employment
misconduct. The ULJ found that Butler committed two negligent acts during the October
2017 incident: he failed to “put the bed of the dump truck down before leaving the site,”
and also failed to “check his rear view mirror.” The ULJ determined that Mahkahta’s
“witnesses’ testimony and written submission are more credible overall” because Lokken
gave “reliable testimony that the truck bed operated on an air-based hydraulic system,
which is not connected in any way to the electrical system.”
In September 2018, Butler requested reconsideration of the ULJ’s decision. In part,
Butler argued that his plea and conviction for driving an “over height” vehicle “is irrelevant
to the basic factual issue as to how the dump truck box came to be in the upright position.”
Butler also requested that the record be reopened to allow for “expert testimony as to the
possibility of mechanical or electrical problems or malfunctions being the cause of the box
being raised.”
In October 2018, the ULJ determined that “[n]one of [Butler’s] arguments are new
information or evidence” that would necessitate an additional hearing. Accordingly, the
ULJ affirmed her findings of fact and decision from August 2018. Butler appeals.
D E C I S I O N
In reviewing a ULJ’s decision on unemployment benefits, this court “may affirm
the decision of the [ULJ] or remand the case for further proceedings; or it may reverse or
modify the decision if the substantial rights of the petitioner may have been prejudiced.”
Minn. Stat. § 268.105 , subd. 7(d) (2018). A petitioner’s substantial rights may be
7
prejudiced if, among other things, “the findings, inferences, conclusion, or decision ” are
(1) “affected by other errors of law,” (2) “unsupported by substantial evidence in view of
the entire record as submitted,” or (3) “arbitrary or capricious.” Id. at (4)-(6)
I. The ULJ’s decision that Butler committed employment misconduct is
supported by substantial evidence.

An employee who is discharged for employment misconduct “is ineligible for
all unemployment benefits.” Minn. Stat. § 268.095, subd. 4(1) (2018). Employment
misconduct includes “intentional, negligent, or indifferent conduct” that clearly displays
“a serious violation” of the employer’s standards or a “substantial lack of concern for the
employment.” Id., subd. 6(a) (2018) . This court reviews a ULJ’s determination that an
employee engaged in employment misconduct under a mixed standard of review.
Dourney v. CMAK Corp., 796 N.W.2d 537, 539 (Minn. App. 2011). Whether an “employee
committed a particular act is a fact question, which [this court] review[s] in the light most
favorable to the decision and will affirm if supported by substantial evidence.” Id. But this
court reviews de novo whether the employee’s act “constitutes employment misconduct.”
Id.
Here, the ULJ concluded that Butler committed employment misconduct because
he was negligent while driving a dump truck for Mahkahta. First, the ULJ found that Butler
“failed to lower the truck bed, which result ed in Butler hitting a bridge and causing
extensive damage.” The ULJ based this finding, in part, on Lokken’s testimony regarding
the mechanics of the “truck bed,” which she found credible. The record evidence supports
these findings. Butler presented no evidence, apart from his own testimony, in support of
8
his theory that an “electrical problem or failure” caused the truck box to spontaneously
engage. Butler testified that he “believe[d] it was something in the electrical underneath
[the truck box].” But Lokken, who worked on Mahkahta’s dump trucks as a mechanic,
testified that the truck- box hydraulics are “completely mechanically operated” and “have
no electrical whatsoever.” He testified that the box-elevating mechanism used air over
hydraulics. Because B utler did not provide any evidence supporting his theory that the
truck box went up by itself, the ULJ had ample basis for rejecting it. Even if we were to
assume the ULJ had received evidence supporting both theories, the ULJ found Lokken’s
testimony credible. This court does not second -guess the credibility determinations of the
ULJ. See Skarhus v. Davanni’s Inc., 721 N.W.2d 340, 345 (Minn. App. 2006) (“Credibility
determinations are the exclusive province of the ULJ and will not be disturbed on appeal.”).
When we view the evidence in the light most favorable to the ULJ’s decision, we conclude
that the ULJ’s finding that Butler forgot to lower the truck box is supported by substantial
evidence.4
Second, the ULJ found that Butler “failed to exercise the care necessary to avo id
damaging the truck and [overpass],” in part, because Butler failed to check his mirrors and

4 Butler also appears to suggest that the ULJ should have disregarded Lokken’s testimony
because he is married to the owner of Mahkahta and was “an interested party.” But Butler
cites no legal authority for this claimed error, and we deem it waived. See Yusuf v.
Masterson Pers., Inc., 880 N.W.2d 600, 605 (Minn. App. 2016) (“Mere assertions of error
not supported by authority cannot be considered on appeal except where prejudice is
obvious.”). To the extent that Butler is arguing that Lokken is biased, he did not explicitly
raise this issue in the ULJ hearings and only asked a few questions relating to Lokke n’s
relationship with Mahkahta’s owner. Therefore, the issue of bias is not properly before us
on appeal. See In re A.D., 883 N.W.2d 251, 261 (Minn. 2016) (stating that an appellate
court generally “will not consider an issue not addressed below”).
9
“knew he was supposed to check [them].” Butler did not testify why he failed to notice the
elevated truck box at any point between the jobsite and the interstate overpass. Butler
testified that he did not know how often he checked his mirrors before the accident and
stated that “[i]t’s just a thing that you do automatic.” He also testified that it was around a
quarter of a mile from the jobsite to the overpass. The record evidence also established that,
before striking the overpass, Butler struck a power line, but failed to notice that he had hit
it. “About a block” after he struck the power line, Butler struck the interstate overpass.
Substantial evidence supports the district court’s finding that “[i]f Butler had checked the
rear view mirror, he would have noticed that the dump bed was up.”
Butler argues that the ULJ erred in relying on his Alford plea to a petty misdemeanor
“as evidence substantiating his negligence. ” The ULJ’s written decision states that
“Butler’s Alford Plea relating to the accident supports a finding that Butler was responsible
for the truck bed being up at the time he hit the [overpass].” Butler contends that the traffic
violation has “only two elements,” which were (1) “operating a motor vehicle” (2) that the
vehicle exceeded “the maximum height limit of 13’ 6”.” He asserts that “this statute does
not establish why or how the box became elevated, just that it was elevated.” 5

5 We observe that Butler introduced the Alford plea and petty misdemeanor conviction as
evidence at the first evidentiary hearing but did not argue its relevance, or lack thereof ,
until he filed his motion to reconsider, which the district court denied. Therefore, to the
extent that Butler now objects to the ULJ’s consideration of the Alford plea and petty
misdemeanor conviction as evidence of his negligence, this argument was not presented to
or considered by the ULJ, and is not properly before this court. See In re A.D., 883 N.W.2d
at 261. Further, as provided below, we also conclude that any error did not prejudice Butler.
10
Minnesota law provides that “[n]o record of the conviction of any person for any
violation [under chapter 169] shall be admissible as evidence in any court in any civil
action.” Minn. Stat. § 169.94, subd. 1 (2018). Butler testified that a district court accepted
his Alford plea and he paid a fine for his conviction. After hearing this testimony, the ULJ
took judicial notice of the plea at the third evidentiary hearing and determined that it
“supports a finding that Butler was responsible for the truck bed being up at the time he hit
the [overpass].” Based on section 169.94, subdivision 1, the ULJ may have erred in taking
judicial notice of Butler’s Alford plea and petty misdemeanor conviction.6
Even if the ULJ erred in taking judicial notice of Butler’s Alford plea as evidence
of negligence, that does not end our analysis. Butler must demonstrate how this error
prejudiced him. See Minn. Stat. § 268.105, subd. 7(d) (permitting reversal when a ULJ’s
findings are unsupported by substantial evidence); Bloom v. Hydrotherm, Inc., 499 N.W.2d
842, 845 (Minn. App. 1993) (stating that the burden is on the appellant to demonstrate that
error is prejudicial), review denied (Minn. Jun. 28, 1993). We conclude that Butler was not
prejudiced because the Alford plea only related to the truck box being elevated. Regardless
of why or how the truck box became elevated, Butler’s negligence in failing to check his
mirrors is itself sufficient to support the ULJ’s determination of employment misconduct.
We conclude that Butler was not prejudiced by judicial notice of the Alford plea because
the ULJ found employment misconduct on unrelated grounds.

6 It is not clear whether “any court” or “any civil action” includes an administrative hearing.
See Minn. Stat. § 169.94, subd. 1. We need not decide whether the ULJ committed error in
taking judicial notice of Butler’s conviction, however, because we conclude that the any
error did not prejudice Butler.
11
Additionally, Butler offered the Alford plea as evidence at the f irst evidentiary
hearing and asked the ULJ to take judicial notice. In Anderson v. Blair, we determined that
a defendant’s introduction of his own misdemeanor conviction for driving while
intoxicated in a civil action precluded him from later claiming that the district court’s
erroneous admission of this evidence prejudiced him . 358 N.W.2d 708, 711- 12 (Minn.
App. 1984). This was because any prejudice “was established by [the defendant’s] own
presentation of evidence.” Id. at 712. Thus, we conclude that Butler is precluded from
claiming this error because Butler presented the evidence and asked the ULJ to take judicial
notice.
II. The ULJ did not abuse her discretion in denying Butler’s request for
reconsideration.

A party may request reconsideration from the ULJ who issued the decision. Minn.
Stat. § 268.105, subd. 2(a), (e) (2018). Upon receiving a timely request for reconsideration,
a ULJ may affirm the findings and decision, modify the findings and decision, or set aside
the findings and decision and order an additional hearing. Minn. Stat. § 268.105, subd. 2(f)
(2018). A ULJ generally has broad discretion on whether to grant reconsideration and
order an additional evidentiary hearing. See Vasseei v. Schmitty & Sons Sch. Buses Inc.,
793 N.W.2d 747, 751 (Minn. App. 2010) (noting that statutory requirements do not restrict
the ULJ’s authority to grant an additional hearing). However, a ULJ “must order an
additional hearing” if a party shows good cause for not previously submitting evidence that
would likely change the outcome of the decision. Minn. Stat. § 268.105, subd. 2(c) (2018)
12
(emphasis added). “Good cause” means a reason that would prevent “a reasonable person
acting with due diligence from submitting the evidence.” Id.
Butler argues that the ULJ abused her discretion when she denied his request for
reconsideration because she relied on Lokken’s testimony at the second evidentiary hearing
“to overturn her previous findings as to the cause of the box having become raised.” Butler
argues that Lokken’s testim ony was “confusing and far from consistent,” was not
substantial evidence, and the ULJ should have permitted him to supplement the record with
additional evidence of his theory that the truck box raised “due to some sort of mechanical
or electrical problem or failure.”7
Butler’s request for reconsideration stated that he would introduce expert testimony
regarding whether the truck box “could have raised independently of any action by Butler.”
Butler stated that he “contacted the University of Minnesota, Duluth Mechanical
Engineering Department to determine if an expert can be retained to examine the records
of the truck and hydraulic system in question.” Butler named no particular expert.
The ULJ did not abuse her discretion in denying Butler’s request for two reasons.
First, Butler does not establish good cause for why he did not offer expert evidence at the
first two evidentiary hearings. When Mahkahta requested reconsideration of the ULJ’s
opinion in May 2018, Mahkahta indicated that it intended to “provide statements from

7 Butler makes two separate challenges to the ULJ’s denial of his request for
reconsideration. First, Butler argues that the ULJ’s refusal to grant an evidentiary hearing
is not supported by substantial evidence; second, he argues that the ULJ did not “ensure
that all relevant facts are clearly and fully developed.” We consider Butler’s challenges
together.
13
mechanics, truck specialists, DOT or others.” Therefore, Butler was aware that Mahkahta
was likely to offer expert testimony. Moreover, after the ULJ granted reconsideration to
Mahkahta and held another evidentiary hearing in July 2018, Mahkahta offered Lokken’s
expert testimony. The ULJ continued the hearing so that Butler could subpoena testimony
from DOT officers. After a three-week continuance, Butler offered testimony from one
DOT officer who failed to provide relevant information about what caused the truck box
to elevate. Butler fails to demonstrate good cause for not obtaining an y other experts
earlier.
Second, Butler provided no basis for the ULJ to determine that additional expert
testimony would likely change the outcome. Butler only stated that he generally inquired
at the University of Minnesota to determine “if an expert can be retained” to testify “as to
the possibility of mechanical or electrical problems or malfunctions being the cause of the
box being raised independent of . . . Butler.” Butler did not identify an expert, indicate
whether an expert was, in fact, available, or describe the substance of the expert’s intended
testimony.
Butler also argues that there was no evidence presented at the reconsideration
hearings to “warrant a reversal of the ULJ’s findings of April [2018].” But this court has
already explained that the ULJ’s decision is supported by substantial evidence. T o the
extent Butler argues that the ULJ’s two orders contradict each other, the first order is of no
legal effect because the ULJ issued an order “setting aside” the previous findings of fact
and decision, and then issued a new decision “modifying the previously issued findings of
fact, reasons for decision, and decision.” Minn. Stat. § 268.105, subd. 2(f)
14
We conclude that there is substantial evidence in the record to support the ULJ’s
determination that Butler engaged in employment misconduct, and that the ULJ did not
abuse her discretion in denying Butler’s motion for reconsideration.
Affirmed.