Loralyn R. Brandt, 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This opinion will be unpublished and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
A19-0276

Loralyn R. Brandt,
Relator,

vs.

LaMettry’s Collision Inc.,
Respondent,

Department of Employment and Economic Development,
Respondent.

Filed September 23, 2019
Affirmed
Cochran, Judge

Department of Employment and Economic Development
File No. 36788220-3

Loralyn R. Brandt, Hastings, Minnesota (pro se relator)

LaMettry’s Collision Inc., Inver Grove Heights, Minnesota (respondent employer)

Munazza Humayun, Anne B. Froelich, St. Paul, Minnesota (for respondent department)

Considered and decided by Larkin, Presiding Judge; Cochran, Ju dge; and
Kalitowski, Judge.


 Retired judge of the Minnesota Court of Appeals, serving by app ointment 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
COCHRAN, Judge
Relator Loralyn R. Brandt challe nges the decision of an unempl oyment-law judge
(ULJ) that she is ineligible for unemployment benefits. Brandt a r g u e s t h a t s h e w a s
deprived of due process, that the ULJ failed to support her cre dibility determinations, and
that the ULJ erred in concluding that Brandt was discharged for employment misconduct.
Because we conclude that Brandt w as not deprived of due process , that the ULJ properly
explained her credibility deter minations, and that substantial evidence in the record
supports the ULJ’s conclusion that Brandt was discharged for employment misconduct, we
affirm.
FACTS
From April 24, 2018 to September 11, 2018, Brandt worked as a d etailer for
LaMettry’s Collision, an automotive repair shop. Brandt was a full-time, hourly employee
before she was discharged.
Brandt and Steve Daniel, LaMettry’s chief financial officer (CFO), testified during
the unemployment-benefits hearing. Daniel testified that LaMettry’s has a written policy
requiring every employee who wo rks eight or more consecutive ho urs to take an unpaid
one-hour lunch break and to punch out for that lunch break. Employees are also expected
to take two additional 15-minute paid breaks, one in the morning and one in the afternoon.
Every new employee attends orientation, which covers LaMettry’s break policy. Brandt
received a manual containing the policy and testified that she read the manual, but did not

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remember whether the policy was in the manual. 1 Brandt testified that, whe n she first
interviewed for a job at LaMettry’s, she told her interviewers that she only could take
half-hour lunch breaks, rather than the standard one-hour lunch breaks. She testified that
s h e m a d e t h i s r e q u e s t b e c a u s e o f h e r c h i l d c a r e n e e d s . S h e f u r ther testified that the
interviewers told her that would not be a problem.
Daniel testified that LaMettry’s makes efforts to enforce the b reak policy. Daniel
acknowledged that the policy is not always followed, but he stated that when management
finds out that an employee is not following the policy, managem ent does force the
employee to follow the policy. Daniel noted that all employees need to take breaks during
the day and that it is a problem when management asks an indivi dual to follow the policy
and that person nevertheless defi es it. Daniel testified that it creates a problem for
LaMettry’s because LaMettry’s can get into trouble if it does not “provide time for breaks
and document that.” (Emphasis added.)
On August 29, 2018, a manager confronted Brandt about the requi rement that she
take a lunch break. Brandt responded that she did not want to take an unpaid lunch break
because she had missed shifts ear lier that week and wanted to w ork through lunch to add
additional paid hours to increase her paycheck, which she relied on to pay her mortgage.
The record includes Brandt’s time cards starting July 27, 2018. From July 27 to
August 28, Brandt worked six or more hours 16 times, including 10 instances in which she

1 Daniel testified that LaMettry’s has an “employee manual.” The ULJ later asked Brandt
whether she received and read t he “employee handbook,” and Bran dt responded that she
did. It appears that these comments refer to the same document.

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worked eight or more hours. Brandt punched out for lunch breaks only three times during
that time frame, all on days that she worked fewer than eight hours. Beginning August 29,
Brandt took a lunch break on each of the four occasions that she worked at least eight hours.
Her breaks on those days varied in length, lasting 40 minutes, 30 minutes, one hour, and
20 minutes.
Daniel initially testified that Brandt was told that this was a problem in July 2018.
Upon further questioning, Daniel stated, “I don’t know if it wa s July. It’s probably
incorrect [to say it was July] but it was well before that thou gh because on the 28th of
August is when [Brandt’s supervisor] brought it to my attention that [Brandt was not]
following that policy.” On September 7, 2018, Brandt emailed D aniel to complain about
the breaks, writing, “So if I have to take Forced breaks! Why is it no one helps or fills in
for those times but if some one . . . leaves for lunch I’m supposed to fill in where he didn’t
finish.” Daniel responded that all employees need to take breaks and that he would speak
to her about other ongoing issues the next week.
On September 11, 2018, LaMettry’s discharged Brandt based on a variety of factors,
including her objections to taking assigned work breaks. Brandt applied for unemployment
benefits, and a hearing was held before the ULJ. During the he aring, Brandt argued that
she was actually discharged due to a sexual-harassment complaint that she had made. The
ULJ did not find Brandt credible, credited Daniel’s testimony, and expressly found that
“Brandt was not discharged because she complained about sexual harassment.”2 The ULJ

2 On appeal, Brandt discusses the alleged harassment, but does not argue that the ULJ erred
in finding that she was not discharged due to her sexual-harassment complaint.

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found that Brandt was discharge d based on her objections to tak ing breaks, among other
reasons. The ULJ concluded that Brandt’s objections to taking breaks, as well as the other
bases for her discharge, did not amount to employment misconduc t. The ULJ reasoned
that, although Brandt complained about the requirement to take lunch breaks, she complied
with the directive starting August 29.
Following the ULJ’s determination, LaMettry’s filed a request for reconsideration,
arguing that Brandt was aware of LaMettry’s lunch break policy and that she ignored the
policy for several weeks. After reconsidering the evidence in the record from the original
hearing, the ULJ modified her det ermination and concluded that Brandt’s “failure to take
lunch breaks on multiple occasions does amount to employment mi sconduct.” Based on
her conclusion that Brandt was discharged for employment miscon duct, the ULJ
determined that Brandt was not eligible for unemployment benefi ts under Minn.
Stat. § 268.095, subd. 4(1) (2018).
This appeal follows.
D E C I S I O N
Brandt argues that she was deprived of due process, that the UL J failed to support
her credibility determinations, and that the ULJ erred in concl uding that Brandt was
discharged for employment misconduct. When reviewing a ULJ’s decision, this court may
affirm or remand for further proceedings, “or it may reverse or modify the decision if the
substantial rights of the petiti oner may have been prejudiced” because, among other
reasons, the decision is affected by an error of law or is unsu pported by substantial
evidence. Minn. Stat. § 268.105 , subd. 7(d) (2018). When we r eview a ULJ’s

6
determination on eligibility for unemployment benefits, we view “findings of fact in a light
most favorable to the decision, and will not disturb the findings so long as there is evidence
in the record that substa ntially supports them.” Gonzalez Diaz v. Three Rivers Cmty.
Action, Inc. , 917 N.W.2d 813, 815-16 (Minn. App. 2018). We review the ULJ’ s
interpretation of the unemployment statutes and the ultimate question of whether the relator
is eligible to receive unemployment benefits de novo. Id. at 816. If an error by the ULJ
did not prejudice Brandt, then the error does not provide a bas is for reversal. See Minn.
Stat. § 268.105, subd. 7(d) (sta ting that we may reverse the UL J “if the substantial rights
of the petitioner may have been prejudiced”); Minn. R. Civ. P. 61 (stating that harmless
error is to be ignored). We consider Brandt’s various claims of error in turn.
I. Brandt was not deprived of due process.

Brandt first argues that her due-process rights were violated by the manner in which
the request for reconsideration was handled. The statute gover ning requests for
reconsideration provides that “[u]pon a request for reconsidera tion having been filed, the
chief unemployment law judge must send a notice, by mail or electronic transmission, to
all parties that a request for reconsideration has been filed.” Minn. Stat. § 268.105,
subd. 2(b) (2018) (emphasis added).
Brandt asserts that her on line account at UIMN.org 3 did not contain notice of the
request for reconsideration and that she was not aware of the r equest for reconsideration
until after the ULJ issued her second decision, which determined that Brandt was ineligible

3 UIMN.org is the official website of the Minnesota Unemployment Insurance Program,
administered by the Department of Employment and Economic Development (DEED).

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for benefits. Brandt argues that because she was not aware of the request for
reconsideration, she was not able to argue against the request. Brandt does not allege that
notice of the request for reconsideration was never mailed to her by DEED.
In response to Brandt’s argument, DEED asserts that it mailed notice of the request
for reconsideration to Brandt. DEED included a copy of the notice addressed to Brandt in
the addendum to its brief. The notice of the request for recon sideration lists the same
address for Brandt as all the other filings in this case, including her appellate brief.
While DEED did not include the notice in the record on appeal, it appears that the
notice was omitted from the record by accident. Further, Brand t did not object to the
inclusion of the notice in the a ddendum to DEED’s brief. For t hese reasons, we will, on
our own initiative, consider the notice of the request for reco nsideration addressed to
Brandt to be part of the record on appeal. See Minn. R. Civ. App. P. 110.05; Stanek v.
A.P.I., Inc., 474 N.W.2d 829, 832 (Minn. App. 1991) (declining to strike documents from
a party’s brief, despite the absence of those documents from th e official record, based on
the conclusion that the documents were actually presented to th e district court), review
denied (Minn. Oct. 31, 1991).
The statute governing reconsideration only requires that the ch ief ULJ provide
notice “either by mail or electronic transmission.” Minn. Stat. § 268.105, subd. 2(b)
(emphasis added). The statute does not require DEED to provide electronic notice of the
request for reconsideration. Id. We conclude that DEED complied with this statute by
mailing the notice of the request for reconsideration to Brandt at her address on file with
DEED.

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Brandt relies on Anderson v. Moberg R odlund Sheet Metal Co. to argue that this
case should be reversed and remanded. 316 N.W.2d 286 (Minn. 19 82). In Anderson, the
supreme court reversed where an employer appealed an unemployment-benefits decision,
but the employer’s notice of appeal, containing the basis for t he employer’s appeal, was
never sent to the employee. Id. at 288.
Anderson is inapposite because, in that case, notice was never sent. Id. As noted
above, Brandt does not allege that DEED did not mail the notice to her, rather she contends
that she was unaware of it. Also, Brandt’s online appeal of DE ED’s initial determination
of ineligibility included a noti ce informing Brandt that she ne eded to keep her contact
information up to date and required Brandt to verify her curren t address. The notice also
stated that “[e]ven after you stop requesting payments, your ac count may be reviewed or
we may need to contact you for other reasons. If we can’t reach you, determinations may
be made without your input.” Thus, Brandt was on notice that s he had to maintain her
current address and that DEED could mail important notices to h e r a d d r e s s . B r a n d t ’ s
assertion that she was not aware of the request for reconsideration is insufficient to support
her claim that DEED failed to provide her notice as required by the statute and thereby
violated her due-process rights.
II. The ULJ made explicit credibility determinations supported by the record.

Minnesota law requires the ULJ to set out the reason for credit ing or discrediting
testimony “[w]hen the credibility of a witness testifying in a hearing has a significant effect
on the outcome of a decision.” M inn. Stat. § 268.105, subd. 1a (a) (2018). “Credibility
determinations are the exclusive province of the ULJ and will not be disturbed on appeal.”

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Bangtson v. Allina Med. Grp. , 766 N.W.2d 328, 332 (Minn. App. 2009) (quotation
omitted).
Brandt argues that the ULJ failed to support her credibility determinations. DEED
counters that the ULJ made exp licit credibility determinations that are supported by the
record.
Our review of the ULJ’s order after reconsideration shows that the ULJ made
express credibility determinations and set out the reasons for those determinations. The
ULJ found Daniel credible, noting that his testimony was forthcoming and sincere and that
Daniel provided detailed testimony, including specific dates. The ULJ found that Brandt’s
testimony was exaggerated, inconsistent, and misconstrued Daniel’s testimony. The ULJ
noted that Brandt testified that LaMettry’s agreed that she did not have to follow
LaMettry’s break policy, but Brandt did not reference this alle ged agreement when
complaining to Daniel about being forced to take breaks. We co nclude that the ULJ set
out her reasons for her credibility determinations in accordance with Minn. Stat. § 268.105,
subd. 1a(a).
Brandt further contends that the ULJ’s credibility determinatio ns were based on
erroneous findings or flawed reasoning. For example, Brandt argues that the ULJ erred by
considering that Daniel offered a specific date for when he fou nd out about Brandt’s
complaint in determining that he was credible. Brandt argues t hat she also provided a
specific date for initially making the sexual-harassment complaint to her supervisor. But
the ULJ’s order does not indicate that the ULJ disregarded Brandt’s assertion that she first
told a supervisor about the alleged harassment on June 20, 2018, as she testified. Rather,

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the ULJ’s order references the date that Daniel, the CFO, found out about the alleged
harassment to credit his testimony that the alleged harassment occurred well before Brandt
was discharged and that her complaint did not lead to her disch arge. The ULJ’s order
specifically notes Brandt’s testimony that she initially compla ined in June; that Daniel
found out about the complaint, investigated it, and took action in response to it in July; and
that Brandt did not provide an explanation for why the complain t led to her firing in
September.
Similarly, Brandt argues that the ULJ erred by concluding that she was not credible
whe n s he t e s t i f i e d t hat s he ha d an agreement with LaMettry’s th a t s he di d not ha ve t o
follow the break policy. Brandt a rgues that she testified only that she believed there was
such an agreement, not that the agreement existed. Brandt test ified that, on the day she
interviewed, she told her interviewers that she could not take a full hour break and “[t]hey
said they didn’t have an issue with that.” Based on our review of the record, we conclude
that the ULJ properly characterized Brandt’s testimony as a sta tement that an agreement
existed. But, even accepting Brandt’s assertion that she only testified that she believed an
agreement existed, Brandt’s arg ument misses the point of the UL J’s analysis. The ULJ
found the testimony not credible because Brandt did not referen ce the alleged agreement
in written emails she sent to Dan iel complaining about the poli cy on September 7, 2018.
The ULJ’s reasoning that Brandt would have mentioned the agreement, if it existed, applies
equally whether Brandt testified that the agreement actually ex isted or only that she
believed that the agreement existed.

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In sum, the ULJ made express cr edibility findings, and supporte d those findings
with specific references to the record. We see no error in the ULJ’s credibility
determinations, and we must defer to those determinations. See Bangtson, 766 N.W.2d at
332.
III. The ULJ did not err in concluding that Brandt was discharged for employment
misconduct.

Brandt argues that the ULJ erred in concluding that her conduct constituted
misconduct. Employment misconduct includes “any intentional, n egligent, 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.”
Minn. Stat. § 268.095, subd. 6(a) (1) (2018). “Whether an emplo yee engaged in conduct
that disqualifies the employee from unemployment benefits is a mixed question of fact and
law.” Id. (quotation omitted). “Determinin g whether a particular act con stitutes
disqualifying misconduct is a question of law that we review de novo.” Id.
In the decision after reconsider ation, the ULJ concluded that “ Brandt’s failure to
take lunch breaks on 10 occasions seriously violated the standards of behavior LaMettry’s
had the right to reasonably expect because she failed to comply with a reasonable directive
required by law.” Brandt argues that the ULJ erred by stating that LaMettry’s break policy
was “a reasonable directive required by law.” As Brandt notes, Minn. Stat. § 177.254,
subd. 1 (2018), provides that “[a]n employer must permit each e mployee who is working
for eight or more consecutive hours sufficient time to eat a meal.” The statute also provides
that “[n]othing in this section requires the employer to pay th e employee during the meal

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break.” Id., subd. 2 (2018). While the statute requires LaMettry’s to off er an employee
time to eat if the employee work s eight or more consecutive hou rs, it does not require an
employee to accept that opportunity.4 Thus, the ULJ erred in stating that mandatory lunch
breaks are “required by law.”
Although we agree with Brandt tha t the law does not require man datory lunch
breaks, we nevertheless conclude that LaMettry’s policy of requiring employees who work
eight or more hours on a shift to take an unpaid lunch break is a reasonable policy for
LaMettry’s. Daniel testified that LaMettry’s needs to document lunch breaks to ensure
compliance with legal regulations . Daniel also testified that employees “need to take
breaks during the day.” Requiri ng employees to take lunch brea ks, and to punch out and
back in, is a reasonable way for LaMettry’s to ensure that employees are provided a lunch
break and to document the length of the lunch break in case of any future litigation. We
conclude that LaMettry’s has the right to reasonably expect employees to take lunch breaks
when working a shift of eight or more hours.
Next we must determine whether Brandt’s conduct constituted a “serious violation”
of LaMettry’s break policy. The supreme court has stated that “an employee’s decision to
violate knowingly a reasonable policy of the employer is miscon duct.”
Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 806 (Minn . 2 0 0 2 ) . T h e s u p r e m e c o u r t
noted that “[t]his is particularly true when there are multiple violations of the same rule
involving warnings or progressive discipline.” Id. at 806-07.

4 Neither the ULJ in her decision, nor DEED in its brief, cite t o any other law that would
require LaMettry’s to force employees to take a lunch break.

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In this case, there is substantia l evidence in the record, incl uding Brandt’s own
testimony that she was aware of the policy. Daniel testified t hat the policy was covered
during Brandt’s orientation and that it was included in a writt en employee manual, which
Brandt acknowledged receiving a nd reading. Although Brandt tes tified that she did not
remember whether the policy was in the manual, she testified th at she discussed the need
to limit her lunch breaks to half an hour during her initial interview with LaMettry’s. Thus,
by her own testimony, Brandt was aware of the policy requiring breaks and believed that
she had an agreement in place to take only half-hour lunch breaks. Despite this knowledge,
Brandt did not punch out for lunch on any of the ten days that she worked for more than
eight hours between July 27, 2018, and August 29, 2018. Furthe rmore, even after Brandt
was reprimanded on August 29, 2018 for not taking breaks, she c ontinued to take lunch
breaks that were under an hour, ev en when she worked more than eight hours. Thus, the
r e c o r d s u p p o r t s t h e U L J ’ s d e t e rmination that Brandt knew about the break policy and
repeatedly violated it.
While the record supports the ULJ’s conclusion that Brandt eng aged in employment
misconduct, Brandt argues that thi s court should reverse the UL J’s order after
reconsideration and reinstate th e ULJ’s original decision becau s e t h e U L J ’ s o r d e r a f t e r
reconsideration includes an erroneous description of one piece of Daniel’s testimony. That
testimony relates to when Brandt was reminded by her supervisor about the need to take
breaks. As Brandt notes, the ULJ’s memorandum states that Daniel “specifically testified
that after she was asked to take breaks in July, she defied the directive for two months.”
At the hearing, Daniel did testify in this manner but later equ ivocated as to the exact date

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t h a t B r a n d t w a s r e m i n d e d o f t h e n e e d t o t a k e b r e a k s . A f t e r a d ditional questioning, he
stated, “I don’t know if it was July. It’s probably incorrect [to say it was July] but it was
well before that though because on the 28th of August is when [ Brandt’s supervisor]
brought it to my attention that [Brandt was not] following that policy.”
The ULJ’s reference to July in the memorandum is inconsistent with Daniel’s later
testimony. But in the findings of fact section of the ULJ’s or der on reconsideration, the
ULJ found more generally that “Brandt was aware of [the break] policy” and that in “the
summer of 2018, management counseled Brandt on the need to take lunch breaks.” These
findings are consistent with Daniel’s testimony. Furthermore, the other substantial
evidence discussed above supports the ULJ’s findings that Brandt knew about LaMettry’s
break policy and, nevertheless, repeatedly violated the policy. W h e r e t h e f i n d i n g s
necessary for a legal conclusion are adequately supported, a co urt’s inclusion of other
unsupported findings is harmless error. Hanka v. Pogatchnik , 276 N.W.2d 633, 636
(Minn. 1979). We conclude that the ULJ’s error in referencing the July date is harmless
error and is not a basis for reversal. See Minn. Stat. § 268.105, subd. 7(d) (stating that we
may reverse the ULJ “if the substantial rights of the petitioner may have been prejudiced”);
see also Midway Ctr. Assocs. v. Midway Ctr., Inc. , 237 N.W.2d 76, 78 (Minn. 1975)
(stating that to prevail on appeal, the appellant must show both error and prejudice resulting
from the error).
For the reasons discussed above, we conclude that substantial evidence in the record
supports the ULJ’s finding that B randt repeatedly and knowingly violated LaMettry’s
lunch break policy. We further conclude that Brandt’s repeated, knowing violation of the

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policy constituted employment misc onduct. Accordingly, the ULJ d i d n o t e r r i n
concluding that Brandt was not e ligible for unemployment benefi t s b e c a u s e s h e w a s
discharged for employment misconduct.
Affirmed.