Edward Curtis, Jr., Relator, vs. ARG Resources LLC, Respondent, Department of Employment and Economic Development, Respondent.

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. l(c).
STATE OF MINNESOTA
IN COURT OF APPEALS
A21-0027
Edward Curtis, Jr.,
Relator,
vs.
ARG Resources LLC,
Respondent,
Department of Employment and Economic Development,
Respondent.
Filed October 11, 2021
Affirmed
Johnson, Judge
Department of Employment and Economic Development
File No. 40527698-3
Edward A. Curtis, Benson, Minnesota (pro se relator)
Anne B. Froelich, Keri Phillips, Minnesota Department of Employment and Economic
Development, St. Paul, Minnesota (for respondent department)
ARG Resources, L.L.C., Willmar, Minnesota (respondent employer)
Considered and decided by Johnson, Presiding Judge; Bryan, Judge; and Frisch,
Judge.
NONPRECEDENTIAL OPINION
JOHNSON, Judge
Edward Curtis Jr. was fired from his job because he yelled and swore at his manager.
He applied for unemployment benefits. The department of employment and economic
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development concluded that he is ineligible because he was discharged for employment
misconduct. We affirm.
FACTS
For approximately eight months in late 2019 and early 2020, Curtis was employed
as a cook at an Arby' s restaurant in Willmar. The evidence described below is consistent
with the facts that were found by the unemployment-law judge (ULJ).
On April 23, 2020, Curtis was scheduled to begin a work shift at 4:00 p.m. At
approximately 4:30 p.m., Curtis called his manager, Craig Schwartz, and said that he would
not be at work that day because he was having problems with his car. The restaurant had
a policy that required employees to give notice to a manager at least three hours before a
scheduled shift if the employee was going to be tardy or absent. Because Curtis called
Schwartz after his shift had begun, Schwartz entered a written warning on Workday, an
online application that the restaurant used to keep records and to communicate with its
employees. Curtis received notices from the Workday application via his wife's cell phone.
Shortly after Curtis gave untimely notice of his absence, he called Schwartz a second time,
in response to the warning on Workday. During the second conversation, Curtis engaged
in what Schwartz described as a "45-minute rant" during which Curtis called Schwartz a
"f--king liar" and asked why Schwartz was "out to f--k [him] over."
On April 27, 2020, Curtis called Schwartz again and asked why Schwartz was not
protecting his employees from COVID-19. Curtis again used profanity and again called
Schwartz a liar. Curtis also asked Schwartz for the telephone number of the area manager,
which Schwartz provided. After speaking with Curtis, Schwartz called the area manager
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to apprise him of the situation. During that telephone call, the area manager authorized
Schwartz to terminate Curtis's employment.
On April 28, 2020, Curtis was scheduled to begin a work shift at 3 :00 p.m. Before
that time, Curtis called Schwartz and again asked for the area manager's telephone number.
Schwartz informed Curtis that his employment was being terminated and told him not to
come to work for the 3 :00 p.m. shift. Curtis nonetheless went to Arby's shortly before
3:00 p.m. When Curtis arrived, Schwartz gave him a piece of paper with the area
manager's telephone number and asked him to leave. Curtis refused to leave and yelled
and used profanity to an extent that was audible to customers. Schwartz called the police.
When a police officer arrived, Curtis left Arby's "without further incident."
In May 2020, Curtis applied for unemployment benefits. Based on the information
that Curtis had provided in his application, the department of employment and economic
development made an initial determination that Curtis is eligible for unemployment
benefits. The restaurant filed an administrative appeal and argued that Curtis should be
ineligible because he engaged in employment misconduct.
A ULJ conducted a hearing by telephone in September 2020. Schwartz testified on
behalf of the restaurant; Curtis testified on his own behalf. After the hearing, the ULJ
issued a written decision in which he determined that Curtis is ineligible for unemployment
benefits because he engaged in employment misconduct. Curtis requested reconsideration,
but the ULJ denied the request and affirmed the prior ruling. Curtis appeals by way of a
petition for a writ of certiorari.
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DECISION
Curtis argues that the ULJ erred by determining that he is ineligible for
unemployment benefits on the ground that he was discharged for employment misconduct.
Unemployment benefits are intended to provide financial assistance to persons who
have been discharged from employment "through no fault of their own." Stagg v. Vintage
Place Inc., 796 N.W.2d 312, 315 (Minn. 2011). Thus, a person who has been discharged
from employment based on "employment . misconduct" is ineligible to receive
unemployment benefits. Minn. Stat. § 268.095, subd. 4 (1) (2020); Stagg, 796 N.W.2d at
314. "Employment misconduct" is defined by statute to mean "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." Minn. Stat.
§ 268.095, subd. 6(a) (2020). Generally, "refusing to abide by an employer's reasonable
policies and requests amounts to disqualifying misconduct." Schmidgall v. FilmTec Corp.,
644 N.W.2d 801, 804 (Minn. 2002).
Curtis makes three arguments in his appellate brief, which we address in tum.
I. Findings of Fact
Curtis first argues that the ULJ made findings of fact that are inconsistent with
certain parts of the evidentiary record. Specifically, he argues that the ULJ' s findings are
inconsistent with three documents that he submitted to the ULJ.
The first document is an e-mail message that the area supervisor sent to Curtis on
April 28, 2020, in response to Curtis's e-mail requesting a telephone conversation. The
area supervisor's message is very short; it states, in full: "I am on a call right now, you can
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call me at 3:00 PM." Curtis does not explain how the e-mail is inconsistent with any of
the ULJ's findings of fact. We conclude that it is not inconsistent with the ULJ's decision.
The second document is a police report, which also is very short. It describes the
situation as follows: "disgruntled employee, refusing to leave." It summarizes the
resolution of the incident as follows: "Curtis understood he was fired and no longer
welcome in the store; left without further incident." Curtis again does not explain how the
police report is inconsistent with any of the ULJ' s findings of fact. We conclude that it is
not inconsistent with the ULJ' s decision.
The third document is a three-page handwritten statement by Curtis's wife in which
she states that she was present for all of Curtis's telephone conversations and describes
them in detail. The statement is very similar to the testimony Curtis gave at the evidentiary
hearing. The ULJ found Curtis's testimony to be not credible and relied instead on the
testimony of Schwartz, whom the ULJ found to be more credible.
We note that all three of these documents were not introduced into evidence during
the evidentiary hearing but, rather, were submitted to the ULJ with Curtis's request for
reconsideration. However, the exchange of e-mail messages between Curtis and the area
supervisor was read into the record by Curtis during his testimony. "In deciding a request
for reconsideration, the unemployment law judge must not consider any evidence that was
not submitted at the hearing, except for purposes of determining whether to order an
additional hearing." Minn. Stat. § 268.105, subd. 2(c) (2020). A ULJ "must order an
additional hearing if a party shows that evidence which was not submitted at the hearing"
either, first, "would likely change the outcome of the decision" and the party had good
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cause for not submitting it earlier or, second, "would show that the [other] evidence that
was submitted at the hearing was likely false" and that the false evidence affected the
decision. Minn. Stat. § 268.105, subd. 2(c)(l)-(2). This court applies an abuse-of­
discretion standard of review to a ULJ's decision not to hold an additional hearing. Kelly
v. Ambassador Press, Inc., 792 N.W. 2d 103, 104 (Minn. App. 20 10).
In denying Curtis's request for reconsideration, the ULJ stated that "Curtis presents
no new information or evidence that would likely change the outcome of the decision."
That determination is not erroneous. The first and second documents do not contradict the
ULJ' s decision in any way. Furthermore, the first and second documents were not relevant
to whether Curtis was tenninated for employment misconduct because he was terminated
by telephone on April 28, 2020, before he arrived at the restaurant. Minn. Stat. § 268.095,
subd. 7 (providing that "applicant may not be held ineligible for unemployment benefits
... for any acts ... occurring after the applicant's separation from employment"). The
third document is inconsistent with the ULJ' s decision, but the statement does not contain
new information because Curtis previously had denied yelling and swearing at Schwartz.
Accordingly, an additional evidentiary hearing was unnecessary. Thus, the ULJ did not
err in his findings of fact.
II. Fair Hearing
Curtis also argues that the ULJ erred by not providing him with a fair hearing.
Specifically, Curtis suggests that the ULJ cut him off when he was speaking, did not listen
to his testimony, and treated Schwartz in a more favorable manner.
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A ULJ "must assist all parties in the presentation of evidence." Minn. R. 3310.2921
(2019). The ULJ also "must exercise control over the hearing procedure in a manner that
protects the parties' rights to a fair hearing." Id. Each party may examine witnesses, cross­
examine the other party's witnesses, and offer and object to exhibits. Id. This court will
reverse a ULJ' s decision for failure to conduct a fair hearing only if the ULJ employed an
unlawful procedure or conducted the hearing in an arbitrary and capricious manner. Minn.
Stat. § 268.105, subd. 7(d)(3), (6) (2020); see also Wichmann v. Travalia & US.
Directives, Inc., 729 N.W.2d 23� 27 (Minn. App. 2007).
The department argues that the ULJ did not fail to provide a fair hearing. The
department asserts that the ULJ interrupted both Curtis and Schwartz "in order to clarify
testimony and prevent repetitive testimony." The department also asserts that Curtis had
an opportunity to present testimony and to cross-examine Schwartz. The department
further asserts that Curtis has not identified any evidence or information that he was
prevented from providing to the ULJ.
We generally agree with the department. The ULJ occasionally interrupted both
Curtis and Schwartz. The ULJ allowed Curtis to read some of his documentary evidence
into the record and asked Curtis whether he wished to call any witnesses other than himself.
The ULJ treated Schwartz in a similar manner. The ULJ asked both Curtis and Schwartz
whether they had cross-examination questions for the other. In short, after reviewing the
transcript of the evidentiary hearing, we perceive no conduct by the ULJ that is contrary to
the applicable rules. Thus, the ULJ did not err by not conducting a fair hearing.
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III. Credibility
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Curtis last argues that the ULJ erred by relying on the testimony provided by
Schwartz, which Curtis describes as "dishonest and deceptive."
"When the credibility of a witness testifying in a hearing has a significant effect on
the outcome of a decision, the unemployment law judge must set out the reason for
crediting or discrediting that testimony." Minn. Stat. § 268.105, subd. la (a} (2020). This
court will defer to a ULJ' s credibility determinations if they are supported by substantial
evidence. See Ywswf v. Teleplan Wireless Servs., Inc., 726 N.W.2d 525, 531-33 (Minn.
App. 2007).
In his first decision, the ULJ stated that Schwartz's testimony was credible because
it was more straightforward than Curtis's testimony, because it was corroborated by a
statement of another restaurant employee who was present on April 28, 2020, and because
it was supported by the "contemporaneous notes" that Schwartz had taken and recorded in
Workday. In contrast, the ULJ noted inconsistencies in Curtis's testimony, which made it
less reliable. The ULJ's credibility determinations are adequately explained and are
supported by substantial evidence in the record of the evidentiary hearing. Thus, the ULJ
did not err by relying on the testimony of Schwartz, whom the ULJ found to be credible.
In sum, the ULJ did not err by concluding that Curtis is ineligible for unemployment
benefits on the ground that he was discharged for employment misconduct.
Affirmed.
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