Eric Robert Mitzuk, 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This opinion will be unpublished and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
A18-2032

Eric Robert Mitzuk,
Relator,

vs.

Davlyn Inc.,
Respondent,

Department of Employment and Economic Development,
Respondent.

Filed September 3, 2019
Affirmed
Ross, Judge

Department of Employment and Economic Development
Case No. 36658152-3

Eric R. Mitzuk, St. Paul, Minnesota (pro se relator)

Keri A. Phillips, Anne B. Froelich, Minnesota Department of Employment and Economic
Development, St. Paul, Minnesota (for respondent Department of Employment and
Economic Development)

Considered and decided by Ross, Presiding Judge; Reill y, Judge; and Johnson,
Judge.
U N P U B L I S H E D O P I N I O N
ROSS, Judge
Erik Mitzuk challenges an unemployment law judge’s (ULJ’s) determination that
he is not eligible for unemployment benefits after he failed to report to work or notify his
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employer that he would be absent. He argues that the ULJ erroneously found that he quit,
failed to develop the record, and improperly rejected his request for another evidentiary
hearing. Because the ULJ’s decision is supported by sufficient evidence, because the record
was adequately developed, and because the ULJ appropriately rejected Mitzuk’s request
for an additional hearing, we affirm.
FACTS
Erik Mitzuk began working at Davlyn Inc. as a desk laborer in February 2017.
Mitzuk’s final day of work was March 9, 2018. Mitzuk filed for unemployment benefits
on July 20, 2018, but was deemed ineligible. Mitzuk appealed, and a hearing was held
before a ULJ.
According to a ULJ’s factual findings, on March 10, 2018, Gary Andert, Davlyn’s
owner, caught the company’s operations manager attempting to download company trade
secrets onto a laptop. He called Davlyn’s landlord and requested that he change the locks
on the warehouse to prevent the operations manager from accessing additional company
data. He also hired a security guard to patrol the warehouse.
On March 12, Mitzuk was scheduled to work, but he never showed up or informed
anyone at Davlyn that he would be absent. No one at Davlyn could reach Mitzuk until the
next month, when he collected his March paycheck. Mitzuk claims that he went to the
warehouse on March 12 with the operations manager but that their keys did not open the
door, the security guard told them to leave, and they were unable to contact anyone at
Davlyn.
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The ULJ found that Mitzuk quit his employment and could not receive
unemployment benefits. Mitzuk requested reconsideration, arguing that the decision was
not supported by sufficient evidence, the ULJ failed to develop the record, and he was
entitled to an additional hearing. The ULJ affirmed, concluding that the decision was
sufficiently supported, that the ULJ developed the record at the hearing, and that none of
the additional documents submitted by either Mitzuk or Davlyn necessitated a second
hearing.
Mitzuk appeals by writ of certiorari.
D E C I S I O N
Mitzuk makes three arguments on appeal. He argues that the ULJ’s decision is not
supported by sufficient evidence, that the ULJ failed to develop the evidentiary record, and
that the ULJ erroneously denied his request for an additional hearing. None of his
arguments succeed.
The ULJ’s decision was supported by substantial evidence. We can reverse or
modify a ULJ’s decision if it was “unsupported by substantial evidence in view of the entire
record as submitted.” Minn. Stat. § 268.105, subd. 7(d)(5) (2018). We review the ULJ’s
factual findings in the light most favorable to the decision and give deference to the ULJ’s
credibility determinations. Icenhower v. Total Auto., Inc., 845 N.W.2d 849, 855 (Minn.
App. 2014), review denied (Minn. July 15, 2014). The ULJ heard testimony from Gary
Andert, Mitzuk, and Davlyn’s operations manager. The ULJ found that Gary Andert’s
testimony was “straightforward, plausible, and consistent,” while Mitzuk’s was generally
implausible and conflicted with the operations manager’s testimony. Mitzuk merely
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highlights the same conflicting accounts that the ULJ considered. We do not reweigh
evidence on appeal. Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988). We see no
clear error in the ULJ’s believing Gary Andert’s testimony.
Gary Andert’s testimony supports the ULJ’s finding that Mitzuk quit his job. An
employee quits if he chooses to end his employment. Minn. Stat. § 268.095, subd. 2(a)
(2018). Gary Andert testified that Mitzuk did not show up for work on March 12 and
contacted neither Gary Andert nor anyone else within the company to explain his absence.
This testimony supports the ULJ’s finding that Mitzuk quit and is not eligible for
unemployment benefits.
We reject Mitzuk’s argument that the ULJ erred by failing to help him during the
evidentiary hearing. A ULJ is obligated to aid the parties in the presentation and
development of evidence. Minn. R. 3310.2921 (2017). We may reverse a ULJ’s decision
if it is “made upon unlawful procedure.” Minn. Stat § 268.105, subd. 7(d)(3) (2018). We
are unconvinced by Mitzuk’s argument that the ULJ failed to help him during the
evidentiary hearing by not sua sponte calling Alex Andert, a Davlyn employee, to testify.
A ULJ may obtain additional testimony that she believes will aid in her decision. Minn. R.
3310.2921. The ULJ asked questions about Alex Andert’s involvement in the events and
heard nothing suggesting that he knew anything about whether Mitzuk quit. Neither Mitzuk
nor the operations manager testified that Alex Andert was present when Mitzuk claims he
was barred entry from the warehouse. And although Mitzuk did testify that he spoke with
Alex Andert after March 12, he also testified that they did not discuss why he had not come
back to work. The ULJ sufficiently aided Mitzuk in developing the record.
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The ULJ did not improperly fail to convene an additional evidentiary hearing. We
will reverse a ULJ’s decision to deny a request for an additional evidentiary hearing only
if the decision constitutes an abuse of discretion. Kelly v. Ambassador Press, Inc., 792
N.W.2d 103, 104 (Minn. App. 2010). An additional hearing must be ordered if a party
shows that evidence that 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.

Minn. Stat. § 268.105, subd. 2(c)(1)–(2) (2018).
Mitzuk contends that the evidence he submitted in support of his reconsideration
request would change the outcome of the decision because it would prove that Gary Andert
was lying. Mitzuk presented no evidence to the ULJ substantiating his argument. Mitzuk
refers to documents that were not provided to the ULJ, and we cannot consider them on
appeal. Minn. R. Civ. App. P. 110.01. The ULJ did not abuse her discretion by denying
Mitzuk’s request for an additional hearing.
Affirmed.