Bruce F. Filson DDS PA, 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This opinion will be unpublished and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
A19-0435

Bruce F. Filson DDS PA,
Relator,

vs.

Kelly Yocom,
Respondent,

Department of Employment and Economic Development,
Respondent.

Filed December 30, 2019
Affirmed
Slieter, Judge

Department of Employment and Economic Development
File No. 36548460-4

John M. Degnan, Ruvin S. Jayasuriya, Briggs and Morgan, P.A., Minneapolis, Minnesota
(for relator)

Kelly Yocom, Hudson, Wisconsin (pro se respondent)

Anne B. Froelich, Keri A. Phillips, St. Paul, Minnesota (for respondent department)

Considered and decided by Larkin, Presiding Judge; Reyes, Judge; and Slieter,
Judge.

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U N P U B L I S H E D O P I N I O N
SLIETER, Judge
Relator Bruce F. Filson challenges the decision of an unemployment-law judge
(ULJ) to grant respondent Kelly Yocom unemployment benefits, arguing that (1) the
decision was unsupported by substantial evidence, (2) the decision was made upon
unlawful procedu re, and (3) the decision was arbitrary and capricious . Filson and
Respondent Department of Employment and Economic Development (DEED) also argue
that the matter should be remanded for an additional hearing. The ULJ’s ruling was based
on a credibility determination and on a proper conclusion that the additional testimony at
a rehearing , even assuming the anticipated testimony to be true, would not change the
outcome of the decision. Therefore, we affirm.
FACTS
Bruce Filson owns and operates Filson Gentle Dentistry in Bayport . From August
1990 to May 2018, Yocom worked for Filson in several roles, most recently as the office
manager.
As office manager, Yocom regularly purchased items and supplies for the office
with her personal credit c ard and submitted these expenses for reimbursement. Yocom
also received an $85 “shopping fee” and $25 for mileage when she shopped outside of
work hours.
Until her retirement in November 2017, Filson’s bookkeeper was D .M. The ULJ
found that w hen submitting expenses for reimbursement , “Yocom wrote down her

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purchases on a piece of paper and submitted the paper, along with the receipts, to [D.M.]
for reimbursement.”
K.R. replaced D.M. as the new bookkeeper. Shortly after starting as bookkeeper,
K.R. had concerns that Yocom was reimbursing herself for unauthorized expenses. K.R.
brought these concerns to Filson’s attention, and on May 18, 2018, Filson fired Yocom.
Yocom filed for unemployment benefits . DEED determined that Yocom was
ineligible for benefits because “[t]he evidence show[ed] that [Yocom] stole or gave away
money, property, or services without authorization.” Yocom appealed.
On November 28, 2018, the ULJ held an evidentiary hearing by telephone. Both
Yocom and Filson appeared and were represented by counsel. The ULJ questioned Filson
and Yocom extensively about the alleged thefts. Filson denied authorizing Yocom to make
the purchases. Yocom provided explanations for each purchase and claimed that Filson
authorized the purchases.
The ULJ also questioned Filson about several expense reports in the record that
were prepared by K.R. to which Filson signed his name next to the word “approved.”
Filson testified that his signature did not represent his approval b ut rather his
acknowledgement that he saw the report.
The ULJ reversed DEED’s ineligibility determination. The ULJ found that “[t]he
preponderance of the evidence shows that Yocom did not steal any money from Bruce F.
Filson DDS PA or obtain any reimbursements that were not authorized or approved by Dr.
Filson.” The ULJ further found: “Yocom was able to provide detailed an d specific
information about the reimbursements she received and her explanation was more

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believable than Dr. Filson’s denial that he did not authorize the purchases or
reimbursements.”
Filson requested reconsideration , and in support of this request , Filson included
sworn affidavits from Filson’s two bookkeepers, D.M. and K.R. D.M.’s affidavit stated
that her only role was to “file the expense reimbursements” submitted by Yocom and that
she did not obtain approval from Dr. Filson for the reimbursements. K.R.’s affidavit stated
that Filson’s signatures on the reimbursement forms did not represent Filson’s approval of
the reimbur sement but were instead Filson’s way of acknowledging his receipt of the
documents.
On February 14, 2019, the ULJ affirmed his prior order, noting that the “new
evidence does not sho w that Yocom’s testimony was likely false.” He also noted that
K.R.’s claim that Filson’s signature on the expense report was simply an acknowledgment
that he saw the report “do[es] not make logical sense and [does] not show that Yocom’s
testimony was likely false.” This certiorari appeal follows.
D E C I S I O N
This court reviews a ULJ’s decision and may affirm, remand, reverse, or modify the
decision. Minn. Stat. § 268.105, subd. 7(d) (2018). Filson argues three grounds to support
a reversal. We may affirm, reverse, remand, or modify the ULJ’s decision
if the substantial rights of the petitioner may have been
prejudiced because the findings, inferences, conclusion, or
decision are:
. . . .
(3) made upon unlawful procedure;
. . . .

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(5) unsupported by substantial evidence in view of
the entire record as submitted; or
(6) arbitrary or capricious.
Id. We consider Filson’s claims in reverse order.
I. The ULJ’s decision is not arbitrary and capricious.
Filson makes two arguments that the ULJ’s decision was arbitrary and capricious:
(A) the ULJ erred in denying an additional hearing , and (B) the ULJ’s decision does not
represent the agency’s judgment.
A. The ULJ did not abuse his discretion in denying an additional hearing.
Both Filson and DEED contend that the ULJ abused his discretion in denying an
additional hearing to consider D.M.’s and K.R.’s testimony. We review a ULJ’s denial of
a request for an additional evidentiary hearing for an abuse of discretion. Skarhus v.
Davanni’s Inc., 721 N.W.2d 340, 345 (Minn. App. 2006).
Minn. Stat. § 268.105, subd. 2(c) (2018), provides that a ULJ 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.

Filson and DEED rely on subdivision 2(c) (2), arguing that D.M.’s and K.R ’s
affidavits show that Yocom’s testimony was likely false, and that this likely false evidence
had an effect on the ULJ’s decision. The ULJ’s credibility findings, to which we give

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deference, Peterson v. Nw. Airlines. Inc., 753 N.W.2d 771, 774 (Minn. App. 2008), review
denied (Minn. Oct. 1, 2008), compel us to disagree.
D.M.’s and K.R.’s affidavits claim that they did not obtain Filson’s approval for
reimbursing Yocom. Even if true, however, this does not have the requisite “effect on the
outcome of the decision.” Id., subd. 2(c)(2).
The ULJ expressly found credible Yocom’s testimony that Filson provided
authorization for all her submitted expenses: “Yocom was able to provide detailed and
specific information about the reimbursements she received and her explanation was more
believable than Dr. Filson’s denial that he did not authorize the purchases or
reimbursements.” We generally defer to the ULJ’s credibility determinations . Peterson,
753 N.W.2d at 774. Thus, even if D.M. and K.R. did not obtain Filson’s approval for the
expenses, the ULJ found credible Yocom’s testimony that Filson did authorize the
expenses. That D.M. and K.R. did not personally obtain Filson’s approval is immaterial to
the ULJ’s decision. The ULJ did not abuse his discretion by denying an additional hearing.
Filson also makes an alternative argument pursuant to Minn. Stat. § 268.105,
subd. 2(c)(1). Section 268.105, subdivision 2(c)(1) , provides that an additional hearing
should be granted when there is evidence not submitted th at “ would likely change the
outcome of the decision and that there was good cause for not having previously submitted
that evidence.” Filson again points to K.R.’s claim that she did not obtain Filson’s approval
for the reimbursements. First, as noted, K.R.’s testimony would not “change the outcome
of the decision.” Minn. Stat. § 268.105, subd. 2(c)(1). Second, Filson cannot show good

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cause for failing to offer K.R.’s testimony at the hearing. Although Filson claims that the
ULJ refused to hear from K.R., this misstates the record.
The ULJ did not hear from K.R. because Filson —despite being represented by
counsel—did not call K.R. as a witness . Filson merely asked the ULJ at several points
during the hearing if the ULJ wanted to hear from K.R., and the ULJ declined. The statute
defines “[g]ood cause” as “a reason that would have prevented a reasonable person acting
with due diligence from submitting the evidence.” Minn. Stat. § 268.105, subd. 2(a).
Filson’s failure to call K.R. as a witness does not qualify. Thus, the ULJ did not abuse his
discretion in denying an additional hearing.
B. The ULJ’s decision does not represent the agency’s will.
Filson next argues that the ULJ’s decision represents the agency’s will. An agency
ruling is arbitrary and capricious if the ruling “represents the agency’s will and not its
judgment.” In re Review of 2005 Annual Automatic Adjustment of Charges for All Elect.
& Gas Utils, 768 N.W.2d 112, 118 (Minn. 2009).
Filson attacks the ULJ ’s examination of Filson over the meaning of his signature
next to the word “approved” on the expense reports. Filson testified that his signature did
not represent his approval but rather his acknowledgement that he saw the report. The ULJ
did not find this credible, noting that Filson
refused to acknowledge that he authorized the expense reports
submitted by Yocom . . . even though his signature appears on
the expense reports showing he app roved and authorized the
reimbursements to Yocom . Dr. Filson’s explanation that he
was signing the expense reports simply to confirm or
acknowledge that Yocom was requesting reimbursements . . .
was not convincing or persuasive.

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Filson argues that the U LJ misunderstood the testimony and then , based on this
misunderstanding, questioned Filson’s credibility. We do not so interpret the record.
Whitehead v. Moonlight Nursing Care, Inc. , 529 N.W.2d 350, 352 (Minn. App. 1995).
(holding that appellate courts do not reweigh evidence). Rather than misunderstand ing
Filson’s testimony, the ULJ simply did not find Filson’s explanation credible. We defer to
the ULJ’s credibility determinations. Peterson, 753 N.W.2d at 774. The ULJ’s disbelief
of Filson does not mean that the ULJ’s decision represents the “agency’s will and not its
judgment” and, therefore, the decision is not arbitrary and capricious.
II. The ULJ’s decision is supported by substantial evidence.
Filson contends that the ULJ’s decision was unsupported by substantial evidence.
Substantial evidence is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Gonzalez Diaz v. Three Rivers Community Action, Inc.,
917 N.W.2d 813, 816 n.4 (Minn. App. 2018).
Filson argues that the ULJ improperly based his decision solely on Yocom’s
credibility and Filson’s signature on the expense reimbursement documents. Filson also
argues that the ULJ ignored evidence to the contrary. We disagree.
The ULJ made a credibility determination and specifically found Yocom’s
testimony about Filson’s authorization of the purchases credible . In contrast, t he ULJ
found Filson’s testimony not credible. These are proper credibility determinations, and we
defer to them. Peterson, 753 N.W.2d at 774. Further, the ULJ did not ignore evidence to

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the contrary but instead did not find Filson’s contrary testimony credible . We conclude
that the ULJ’s decision is supported by substantial evidence.
III. The ULJ’s decision is based on lawful procedure.

We may reverse a ULJ’s decision if it was “made upon unlawful procedure.” Minn.
Stat. § 268.105, subd. 7(d)(1). A ULJ “must ensure that all relevant facts are clearly and
fully developed.” Minn. R. 3310.2921 (2017).
Filson argues that the ULJ failed to ensure all relevant facts were properly developed
because the ULJ declined to hear from K.R. Filson also claims K.R. would have
corroborated Filson’s testimony.
For the reasons previously articulated, we disagree. The ULJ did not refuse to hear
from K.R. The ULJ ensured that all relevant facts were developed, and therefore the ULJ’s
decision was not based on an unlawful procedure.
Affirmed.