Rhonda Peterson, 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This opinion will be unpublished and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
A20-0308

Rhonda Peterson,
Relator,

vs.

DJ’s Companies Inc.,
Respondent,

Department of Employment and Economic Development,
Respondent.

Filed December 14, 2020
Affirmed
Smith, John, Judge*

Department of Employment and Economic Development
File No. 37742589-2

Aaron P. Minster, Moss & Barnett, Minneapolis, Minnesota (for relator)

DJ’s Companies Inc., Albertville, Minnesota (for respondent employer)

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

Considered and decided by Slieter, Presid ing Judge; Frisch, Judge; and Smith, John,
Judge.

* Retired judge of the Minnesota Court of Ap peals, serving by appointment 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
SMITH, JOHN, Judge
We affirm the determination of an unemp loyment-law judge (U LJ) that relator,
Rhonda Peterson, is ineligible for unemployment benefits because the ULJ made sufficient
findings, including credibility findings, to support the conclusion that Peterson committed
misconduct.
FACTS
Peterson began working for respondent-emp loyer DJ’s Companies Inc. (DJ’s) in
May 2015. Peterson missed numerous days of work in 2019, including a full week in July.
DJ’s modified its attendance policy during that week to require employees to use vacation
days when they called in sick. Anne Savitski, the vice president of DJ’s, testified that she
and Peterson spoke about the ne w attendance policy in July 2019. But Savitski did not
issue any written or verbal warnings to Peterson about her attendance.
Savitski testified that she told Peters on that DJ’s changed its attendance policy
because Peterson had been abusing it, and th at Peterson had used all of her remaining
vacation time. Savitski testif ied that Peterson agreed that she had abused the policy by
taking a lot of time off, but asked to use one vacation day for the day before Labor Day, so
she could go to Chicago to help her son move . Savitski denied Peterson’s request. The
following week, Peterson asked for Monday, A ugust 23, and Friday, August 26, off from
work to help her son move the following week. Savitski denied this request as well.
Peterson did not appear for wo rk on August 23 or 26 be cause she was in Chicago.
She also did not work on August 29 because she was ill. Savitski did not speak to Peterson

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about her absences, but instead allowed her to continue working while Savitski searched
for a replacement. DJ’s prepared an advertisement to find a replacement for Peterson, and
posted it on August 23 when she did not arrive for work. In September, Peterson sustained
injuries in a car accident that caused her to miss work in September and October. Savitski
terminated Peterson’s employment by letter before Peterson was cleared by her doctor to
return to work.
At the evidentiary hearing before the ULJ, Savitski testified that Peterson called the
president of DJ’s on August 21, and told him that she was not coming in on August 23 and
26, and that he would “have to fire her if he didn’t like it.” Peterson testified that the
president gave her permission to be absent on August 23 and 26, and denied the statement
attributed to her by Savitski. Peterson testified that the president told her to go “take care
of what you need to do and get back to work.” Peterson then testified that she had no notice
that her job was in jeopardy because of her a ttendance. She finally testified that no one
from DJ’s talked to her about her attendance, and that the majority of her absences occurred
during the slow season when she understood that absences were tolerated.
After the evidentiary hearing, the ULJ i ssued its findings of facts, reasons for
decision, and decision. The ULJ conclude d that Peterson violated her employer’s
expectations on August 23 and 26, 2019, because she did not have permission to be absent.
The ULJ concluded that Peterson was neverthe less eligible for unemployment benefits
because the preponderance of the evidence showed that her conduct was not serious. The
ULJ concluded that Peterson’s conduct was not serious because Savitski never warned her
about her absences and retained her as an employee while searching for a replacement.

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DJ’s requested that the ULJ reconsider her decision. The ULJ determined that her
previous decision was incorrect , reversed that decision, a nd concluded that Peterson was
ineligible for unemployment benefits. In re versing the decision, the ULJ reasoned that
Peterson’s misconduct was serious because DJ’s began taking immediate steps to replace
her, and that DJ’s delay in communicating to Peterson did not detract from the seriousness
of the misconduct. This certiorari appeal followed.
D E C I S I O N
Peterson challenges the ULJ’s determination that she is ineligible for unemployment
benefits. This court may affirm the ULJ’s decision, remand for fu rther proceedings, or
reverse “if the substantial rights of the petitioner may have been prejudiced.” Minn. Stat.
§ 268.105, subd. 7(d) (Supp. 2019). The substantial rights of the petitioner may have been
prejudiced if the ULJ’s findings, conclusions, or decision are affected by an error of law,
unsupported by substantial evidence, or are arbitrary or capricious. Id. Peterson asks this
court to reverse the ULJ’s decision because (1) the ULJ did not make the specific credibility
findings required by Minn. Stat. § 268.105, subd. 1a(a) (2018), and (2) her absences were
not misconduct. Because the ULJ made spec ific credibility findings and did not err in
concluding that Peterson’s absences were employment misconduct, we affirm.
I. The ULJ set forth reasons for discrediti ng Peterson’s testimony as required by
Minn. Stat. § 268.105, subd. 1a(a).
First, Peterson argues that the ULJ comm itted reversible error by not specifically
addressing her testimony that she had permission to be absent on August 23 and 26, 2019.
We disagree.

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When the credibility of a witness’s tes timony has a “signifi cant effect on the
outcome of a decision, the [ULJ] must set out the reason for crediting or discrediting that
testimony.” Minn. Stat. § 268.105, subd. 1a(a). This court defers to the ULJ’s credibility
determinations when they are supported by s ubstantial evidence and the ULJ sets forth a
valid reason for crediting or discrediting a witness. See Ywswf v. Teleplan Wireless Servs.,
Inc., 726 N.W.2d 525, 532-33 (M inn. App. 2007) (deferring to the ULJ’s determination
that a witness was not credible in light of other evidence). Substantial evidence supports a
finding when a witness’s testimony is either co rroborated or refuted by other evidence in
the record. See id. at 532.
Peterson argues that the ULJ could only have concluded that her absence was
misconduct by implicitly discrediting her testimony to the contrary. She contends that the
ULJ committed reversible error by failing to st ate reasons for discre diting her testimony
concerning the phone call between her and the president of DJ’s. Respondent Minnesota
Department of Employment and Economic Development (DEED) argues that the ULJ
found that Peterson did not have permission to be absent, and argues that determination is
supported by the record and meets the requirements of Minn. Stat. § 268.105, subd. 1a(a).
In her order, the ULJ found that Peterson did not have permission to be absent on
August 23 and 26. Th e ULJ found that Savitski’s te stimony was more credible than
Peterson’s, stating: “The findings of fact regarding whether Peterson had permission to be
absent August 23, and 26, 2019, are based upon Savitski’s testimony.” In determining that
Savitski’s testimony was more credible, the ULJ relied on records submitted by Savitski
documenting Peterson’s absences. See Ywswf , 726 N.W.2d at 532-33 (deferring to

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credibility findings because th e ULJ found that corroborati ng evidence made employer’s
testimony more credible than relator’s).
Peterson argues that the ULJ was required to state specific reasons for discrediting
her testimony that she had permission to be absent. But Peterson cites to no authority, and
we are aware of none, that requires a ULJ to parse through each line of a party’s testimony
in making a credibility determin ation. The ULJ is required, when the credibility of a
witness significantly affects the outcome of the decision, to “set out the reason for crediting
or discrediting that testimony.” Minn. Stat. § 268.105, subd. 1a(a). The ULJ did so here.
The ULJ made specific findings supporting its conclusion that Savitski’s testimony
was credible while Peterson’s was not. The ULJ found that “Peterson’s testimony was not
credible” because it “changed several times dur ing the hearing, including [regarding] the
reasons for the absences, [reg arding] her symptoms, and gene rally was not consistent.”
Peterson testified that she was absent for an en tire week in July becau se she had the flu.
But she provided conflicting information conc erning her precise symptoms, whether she
attempted to go to work, and whether she contacted a doctor. Peterson testified that she
spoke to Savitski after Savitski changed the attendance policy, but later denied that Savitski
gave her the updated policy. Pe terson also testified that she had no idea that her job was
in jeopardy because of her attendance, but later testified that Savitski avoided her after her
absences on August 23 and 26. The ULJ’s finding that Peterson’s testimony that she had
permission to be absent was not credible is thus supported by substantial evidence as
required by Minn. Stat. § 268.105, subd. 1a(a) because it is based on inconsistencies in her
testimony that belie her assertions.

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II. The ULJ did not err in concluding that Peterson’s absences were employment
misconduct.
Second, Peterson argues that she did no t commit employment misconduct because
she believed she had permissi on to be absent. DEED argues that Peterson committed
employment misconduct because she seriously vi olated her employer’s expectations by
refusing to come to work. We agree th at Peterson’s absences were employment
misconduct.
An employee who is discharged for employ ment misconduct is ineligible to receive
unemployment benefits. Minn. Stat. § 26 8.095, subd. 4(1) (2018). Employment
misconduct is “any intentional, negligent, or indifferent conduct, on the job or off the job,
that is a serious violation of the standards of behavior the employer has the right to
reasonably expect of the employee.” Id., subd. 6(a) (Supp. 2019). But, “conduct an
average reasonable employee would have enga ged in under the circumstances” is not
employment misconduct. Id., subd. 6(b)(4) (Supp. 2019).
Whether an employee comm itted an act that renders them ineligible for
unemployment benefits is a mixed question of law and fact. Schmidgall v. FilmTec Corp.,
644 N.W.2d 801, 804 (Minn. 2002). Appellate courts review a ULJ’s factual findings “in
the light most favorable to the decision.” Stagg v. Vintage Place, Inc. , 796 N.W.2d 312,
315 (Minn. 2011). But reviewing courts examine whether a particular act renders a person
ineligible for unemployment benefits de novo. Id.
The ULJ found that Peterson did not have permission to be absent on August 23 and
26. Savitski’s immediate search for Pete rson’s replacement showed that Peterson’s

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absences had a serious impact on the company. Savitski’s testimony and the ULJ’s finding
that Peterson’s contrary tes timony was not credible provide s substantial support for the
ULJ’s finding that Peterson did not have permission to be absent.
Peterson argues that she did not commit misconduct under Minn. Stat. § 268.095,
subd. 6(b)(4), because an aver age reasonable employee would not have gone to work if
they believed that their boss ha d allowed them to be absent. This argument fails because
the ULJ found that Peterson did not have permission to be ab sent. Being absent without
permission from work is not “conduct an average reasonable employee would have
engaged in under the circumstances” be cause the average reasonable employee
understands that they are required to attend work when not excused. See Hanson v.
Crestliner Inc., 772 N.W.2d 539, 543 (Minn. App. 2009) (indicating that “a single absence
without permission from the employer ma y amount to misconduct”). The ULJ’s
conclusion that Peterson committed employment misconduct is thus not erroneous.
Affirmed.