Jean-Yves Viardin, Relator,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-1090

Jean-Yves Viardin,
Relator,

vs.

Eclipse Select MN LLC,
Respondent,

Department of Employment and Economic Development,
Respondent.

Filed April 25, 2022
Reversed and remanded
Smith, Tracy M., Judge

Department of Employment and Economic Development
File No. 4268326-3

Matthew E. Anderson, Anderson Law Group PLLC, St. Paul, Minnesota (for relator)

Eclipse Select MN, LLC, Vadnais Heights, Minnesota (respondent employer)

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

Considered and decided by Smith, Tracy M., Presiding Judge; Connolly, Judge; and
Kirk, Judge.


 Retired judge of the Minnesota Court of A ppeals, serving by appoi ntment pursuant to
Minn. Const. art. VI, § 10.
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NONPRECEDENTIAL OPINION
SMITH, TRACY M., Judge
Relator challenges the decision of an une mployment-law judge (ULJ) that he is
ineligible for unemployment benefits be cause he was discharged for employment
misconduct and aggravated empl oyment misconduct. Relator argues that (1) the ULJ’s
factual findings are clearly erroneous and (2) the ULJ abused their discretion by declining
to order an additional hearing on reconsideration. Because the ULJ abused their discretion
by declining to order an additional hearing, we reverse and remand.
FACTS
Mark Bigelbach is the owner of responde nt Eclipse Select MN LLC (Eclipse), an
amateur soccer club. At some point, Eclip se and MapleBrook Soccer Association
(MapleBrook) entered into a “Cooperati on and Services Agreement” (agreement).
Bigelbach claimed that, pursuant to the agre ement, Eclipse and Ma pleBrook merged to
operate as one entity named Minnesota Eclipse MapleBro ok (Eclipse/MapleBrook).
Relator Jean-Yves Viardin, an employee of MapleBrook, was hired as the director of
coaching of Eclipse/MapleBrook.
At issue is a rewards program offered th rough Adidas in which promotional dollars
are awarded by Adidas to participating so ccer clubs when player s purchase Adidas
products at Planet Soccer. The promotional dollars could then be spent on Adidas products.
Bigelbach believed that, under the agreement, Eclipse/MapleBrook owned the
Adidas account. He also believed that Viar din was still employed with MapleBrook and
began to suspect that Viardin was misallo cating the Adidas promotional dollars. On
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July 30, 2020, Bigelbach emailed Viardin an d demanded the username and password for
the Adidas account. Upon accessing the account, Bigelbach observed that in January 2020,
Adidas paid Eclipse/MapleBrook approximat ely $35,000 in promotional dollars for
uniform purchases at Planet Soccer for the 2019 -2020 soccer season. Bigelbach believed
that Viardin spent most of the promotional dollars on himself and on his semi-pro adult
soccer teams. Viardin was subs equently discharged for us ing the Adidas promotional
dollars for personal use.
Viardin established an unemployment benefits account with respondent Minnesota
Department of Employment and Economic Development, and a department administrative
clerk determined that Viardin was ineligible for unemployment benefits because he was
discharged for aggravated employment misconduct. Viardin appealed that decision, and a
de novo hearing was conducted. At the hearing, Viardin claimed that he did not misallocate
the Adidas promotional dollars because, unde r the agreement, the promotional dollars
“never belonged to Eclipse,” they belonged to MapleBrook.
The ULJ found that “[a]t some point, Eclipse and MapleBrook . . . became one
entity,” and that “[w]hen Eclipse/MapleBrook purchases uniforms and gear from Adidas,
Adidas awards promotional support dollars to Eclipse/MapleBrook.” The ULJ also found
that by spending “over $30,000 worth of Eclipse/MapleBrook promotional support dollars
on products for himself and his businesses,” Viardin “stole over $30,000 worth of Adidas
promotional support dollars from Eclipse/MapleBrook.” The ULJ concluded that because
an “employer has a right to reasonably expect that an employee will not steal from the
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business,” Viardin’s conduct constituted employ ment misconduct and, therefore, Viardin
was ineligible for unemployment benefits.
Viardin requested reconsideration of the ULJ’s decision, seeking a new hearing at
which additional evidence could be submitted. The ULJ de nied an additional evidentiary
hearing and affirmed the deci sion, concluding that the “evi dence Viardin submitted with
his request for reconsideration would not lik ely change the outcome of the decision and
does not 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.”
Viardin appeals, requesting that this cour t reverse the decision of the ULJ and rule
that he is eligible for unemployment benefits. In the alternative, Viardin requests reversal
and remand for an additional evidentiary hearing.
DECISION
I. The ULJ’s determination of empl oyment misconduct was not erroneous.
Viardin challenges the ULJ’s decision th at he was discharged for employment
misconduct. “Employment misco nduct means any intentional, negligent, or indifferent
conduct, on the job or off the jo b, that is a serious violation of the standards of behavior
the employer has the right to reasonably expe ct of the employee.” Minn. Stat. § 268.095,
subd. 6(a) (2020). An employee who is discharged for employment misconduct is ineligible
for unemployment benefits. Id., subd. 4(1) (2020).
Whether an employee committed employmen t misconduct is a mixed question of
law and fact. Stagg v. Vintage Place Inc., 796 N.W.2d 312, 315 (Minn. 2011). On appeal,
this court defers to the ULJ’s credibility determinations and will uphold the ULJ’s findings
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of fact if supported by subs tantial evidence. Minn. Stat. § 268.105, subd. 7(d)(5) (2020);
Wilson v. Mortg. Res. Ctr., Inc., 888 N.W.2d 452, 460 (Minn. 2016). Substantial evidence
is “such relevant evidence as a reasonable mi nd might accept as adequate to support a
conclusion.” Gonzalez Diaz v. Three Rivers Cmty. Action, Inc. , 917 N.W.2d 813, 816 n.4
(Minn. App. 2018) (emphasis omitted) (quotation omitted). We do not reweigh conflicting
evidence; rather we look to the record only to determine whether the evidence reasonably
supports the ULJ’s factual finding. See Wilson, 888 N.W.2d at 460. But we review de novo
whether the facts found by the ULJ constitute employment misconduct. Schmidgall v.
FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).
Viardin argues that the ULJ’s decision is not supported by substantial evidence
because “overwhelming evidence supported Viardin’s testimony” that “MapleBrook
owned the [Adidas] account and he did not steal from it.” He also contends that “the merger
of Eclipse and MapleBrook is legally impossible” because there is no evidence indicating
that the merger satisfied the applicable Minnesota laws. The department acknowledges that
“Eclipse and MapleBrook may not have undergone a legal ‘merger.’” But the department
contends that evidence submitted to the UL J supports the finding that Eclipse and
MapleBrook operated as one entity.
Based on the limited record before the ULJ, we ag ree with the department.
Bigelbach testified that MapleBrook “was the club that merged into my business,” and that,
through this merger, the Adidas promotional dollars belonged to Eclipse/MapleBrook. This
evidence supports the ULJ’s findings that Eclipse and MapleBrook became one entity and
operated jointly. Bigelbach’s testimony also supports the finding that the Adidas
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promotional dollars belonged to Eclipse/MapleBrook. Although Viardin testified that the
Adidas promotional dollars belonged to Mapl eBrook because there was no merger of
Eclipse and MapleBrook and provided some evidence to support his position, the ULJ did
not find this evidence to credible. Instead, the ULJ found that “Viardin’s testimony is not
credible because it was indirect and evasive.” And, apart from his own testimony, Viardin
provided no evidence specifically refuting Bigelbach’s position. Therefore, because we
defer to the ULJ’s credibility findings, an d the ULJ’s findings are supported by the
evidence presented at the hearing, we conclude that the ULJ did not clearly err in finding
that Viardin stole the Adidas promotional dollars.
It is well settled that “[a] single incident of theft by an employee is employment
misconduct.” Pierce v. DiMa Corp. (1992), 721 N.W.2d 627, 630 (Minn. App. 2006). The
ULJ here found that “Viardin stole over $30,000 worth of Adidas promotional support
dollars from Eclipse/MapleBrook.” Because th e ULJ found that Viardin stole from his
employer, and that finding is supported by s ubstantial evidence, the ULJ did not err in
determining that Viardin was discharged for employment misconduct.
II. The ULJ should have granted an a dditional hearing on reconsideration.
Viardin also challenges the ULJ’s decisi on not to order an additional hearing on
reconsideration. “In deciding a request for r econsideration, the [ULJ] must not consider
any evidence that was not submitted at the he aring, 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
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had good cause for not submitting it earlier or, second, “would show that the [other]
evidence that was submitted at the hearing wa s likely false” and th at the false evidence
affected the decision. Id. We will “not reverse a ULJ’s decision to deny an additional
evidentiary hearing unless the decision constitutes an abuse of discretion.” Kelly v.
Ambassador Press, Inc., 792 N.W.2d 103, 104 (Minn. App. 2010).
In his request for reconsideration, Viardin submitted a copy of the agreement
between Eclipse and MapleBrook. Viardin contends that because this evidence shows that
the “evidence presented by Eclip se at the hearing was likely false,” the ULJ abused their
discretion by declining to order an additional hearing. We agree.
The agreement between Eclipse and MapleBrook states:
This Agreement does not ma ke either Party the agent,
employee, or representative of the other for any purpose
whatsoever. Nothing herein cont ained shall be construed to
imply a joint venture, partne rship, or principal-agent
relationship between MapleBrook and Eclipse. Neither party is
granted any express or implied ri ght or authority by the other
Party to assume or create a ny obligation or responsibility on
behalf of or in the name of the other Party, or to bind the other
Party in any manner whatsoever.

The agreement also states that it “may be termin ated by any Party,” and that “[n]othing
herein contained shall be deemed to be a sale , transfer or assignment of the monetary or
tangible assets of either party.”
The agreement’s language stating that the monetary assets of each entity are not
transferred under the agreement appears to su pport Viardin’s testim ony that the Adidas
promotional dollars were retained by MapleB rook. The plain language of the agreement
also seems to contradict Bigelbach’s testimony that Eclipse and MapleBrook merged and
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that Eclipse/MapleBrook owned the Adidas promotional dollars. And because the
agreement appears to contradict Bigelbach’s testimony, consideration of the agreement
would likely affect the decision, particularly when considered in conjunction with the
additional evidence submitted by Viardin at th e evidentiary hearing, which includes the
declaration of the Adidas repr esentative, who stated that th e Adidas promotional dollars
belonged to MapleBrook and that Viardin did not misappropriate the Adidas account.
Therefore, we conclude that the ULJ abused their discretion by declining to order an
additional hearing after reconsideration.
Reversed and remanded.