Kenneth Kuller, 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This opinion is nonprecedential except as provided by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
A21-1144

Kenneth Kuller,
Relator,

vs.

Supervalu, Inc.,
Respondent,

Department of Employment and Economic Development,
Respondent.

Filed May 16, 2022
Affirmed
Bryan, Judge

Department of Employment and Economic Development
File No. 45743377

Kenneth Kuller, Burnsville, Minnesota (pro se relator)

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

SuperValu Inc., St. Louis, Missouri, (respondent employer)

Considered and decided by Bryan, Presiding Judge; Jesson, Judge; and Wheelock,
Judge.
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NONPRECEDENTIAL OPINION
BRYAN, Judge
Relator challenges the decision by the un employment law judge (ULJ) to deny
relator’s request for reconsideration, arguing that the ULJ did not adequately address each
of the nine issues raised in his request. Because relator’s arguments misconstrue the ULJ’s
decision and do not accurately reflect the applicable law and procedures, we affirm.
FACTS
From June 2017 until his discharge on Ma rch 14, 2021, relator Kenneth Kuller
worked for respondent Supervalu, Inc. (Supervalu). Between April 2020 and March 2021,
customers and co-workers rep eatedly complained that Kuller made inappropriate jokes,
harassed co-workers, and offended customers. Following the last incident, Kuller was
suspended pending additional investigation, and Supervalu discharged him approximately
one week later. Respondent Department of Employment and Economic Development
(DEED) determined that Kuller was eligible to receive benefits, but Supervalu appealed
the determination. The case proceeded to an ev identiary hearing to determine whether
Kuller was discharged from Supervalu for employment misconduct.
At the hearing, both Kuller and his manager, A.K., testified about the separate
incidents for which management received co mplaints. A.K. and Kuller also testified
regarding discussions that management had with Kuller and the disciplinary actions taken
against him by management, which incrementally progressed in severity. The parties also
testified about an incident from the fall of 20 20, which became the subject of the parties’
mediation. As a result of mediation, the parties agreed that the incident would be removed
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from Kuller’s file if he met behavioral expecta tions for the next year. A.K. testified that
the incident related to the mediation was not considered in Supervalu’s decision to
terminate Kuller. The ULJ also admitted six exhibits.1
On July 8, 2021, the ULJ i ssued a decision (the posth earing decision) that Kuller
was ineligible for unemployment benefits. In its findings of fact, the ULJ referenced six
incidents, including two from the “spring of 2020,” and four others that occurred on June
1, 2020; September 27, 2020; December 17, 2020; and March 5, 2021. The ULJ also found
that A.K.’s testimony was credible because he “presented his testimony in a clear and
straightforward manner without anything to suggest inaccuracy or deception. His
testimony presented a logical sequence of events culminating in Kuller’s discharge.” The
ULJ found that Kuller’s testimony was not credible, explaining the following:
Kuller denied every claim against him. He said the customers
must have misheard what they claimed to overhear. He said he
never harassed [his co-worker] and that [the co-worker] was
harassing him. He placed the fault for his discharge on [A.K.],
who he claimed treated him unfairly. It is highly unlikely that
every customer and co-worke r complaint against Kuller
resulted from him being misheard. Kuller also contradicted his
own testimony, suggesting he was not providing accurate
testimony. Kuller’s testimony was not credible.

Based on these findings, the ULJ determined that Kuller “engaged in a pattern of
inappropriate behavior that resulted in mult iple customer and co-worker complaints,”

1 Kuller also submitted a 30-page document that was referred to as Exhibit 7. On the first
day of the hearing, although th e ULJ had a copy of it, Superv alu had not received a copy
of this document. The ULJ described the c ontents of the document and explained that
evidence need not be in writte n form to be valid. The UL J permitted Kuller to introduce
the contents of the document into the record through his testimony at the hearing.
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Kuller continued this pattern of behavior even after being “told to stop,” and this behavior
constituted employment misconduct because it “s howed clearly a serious violation of the
standards of behavior the employer has a right to reasonably expect of [Kuller].”
Kuller requested reconsideration,2 raising a variety of challenges to the merits of the
posthearing decision, divided into the followi ng three categories: (1) eight separate
challenges to the factual findings made by th e ULJ in its posthearing decision (including
separate challenges to six specific factual findings, a challenge to the ULJ’s credibility
determinations, and an argument that the UL J failed to make necessary factual findings
regarding the context of disciplinary actions against Kuller); (2) four challenges labeled as
errors of law (including a challenge that the ULJ failed to properly defer to the findings of
fact in the department’s initial determination of eligibility, an argument that the ULJ failed
to make necessary factual findings regard ing Kuller’s intent and the definition of
“employment misconduct”); and (3) four ch allenges labeled as “procedural errors”
(including arguments regarding the standard of review a pplied by the ULJ to DEED’s
initial determination of eligibility, the ULJ’s admission of evidence, consideration of issues
Kuller believes were irrelevant, and the failure to consider a relevant issue). In support of
this request, Kuller submitted a one-page document, titled “Media tion Result Kenneth
Kuller” (the mediation statement), which indicated that management agreed not to suspend
Kuller. This document stated:

2 Kuller made an initial request, submitted a su pplemental letter, a nd filed an amended
motion. Because Kuller refers to the amended motion as the request for reconsideration in
his briefs to this court, we do the same.
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Management reported an in cident on October 23rd
where he claimed [Kuller] had to ld an inappropriate joke.
Company believes this report was antagonistic and unlikely to
be accurate. Management agreed not to discipline [Kuller] for
this incident that would have called for a 3-day suspension and
agreed not to bring it up again. [Kuller] agreed to refrain from
future comments that may be deemed inappropriate.3

On August 12, 2021, the ULJ issued a de cision (the decision on reconsideration)
denying Kuller’s request for reconsideration, declining to hold a new hearing, and
concluding that “the [posthearing decision], is factually and legally correct.” The ULJ
explained that the postheari ng decision “came down largel y to credibility.” The ULJ
concluded that nothing in the request for reconsideration would change the outcome:
[T]he ULJ found that the employer’s witnesses were credible
and Kuller was not. . . . Kuller claimed that everyone who
complained about him was either lying or was mistaken about
what happened. This is not likely to be true. Kuller also at one
time contradicted himself. In his initial request for
reconsideration, Kuller descri bed this as “an inadvertent
misstatement.” In the context of the testimony, however, this
was not a slip of the tongue; Ku ller blatantly contradicted his
prior testimony.

Kuller’s testimony in the heari ng was not credible. There is
nothing in Kuller’s request for reconsideration that leads the
ULJ to change the credibility findings.

In addition, the ULJ addressed the mediation statement. The ULJ concluded that a
new hearing was not needed because the me diation statement did not relate to the
employment decision and would not change the outcome of the hearing:

3 While testimony suggested that the mediation related to the September 27, 2020 incident,
the mediation statement itself refers to an inci dent date of October 23, 2020. In addition,
the mediation statement concerned an inappr opriate joke, but the September incident
related to Kuller calling a coworker inappropriate names.
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Kuller argues that a new hearing is required because Supervalu
did not provide the mediation agreement. Supervalu did not
discharge Kuller because of what happened in the mediation
session. Nothing in the heari ng suggested that the mediation
agreement was necessary for the decision. Kuller does not
credibly explain how the contents of the mediation agreement
would change the decision. The mediation agreement was not
necessary for the decision. The ULJ will not reopen the record
to receive it.

Finally, the ULJ determined that the factual findings in the posthearing decision
supported the conclusion of employment misc onduct and specifically determined that
Kuller’s arguments regarding the standard of review was an incorrect statement of law:
Kuller argues that the ULJ made errors of law. He argues that
the findings of fact do not support a finding of employment
misconduct and that the ULJ ap plied the wrong standard of
law. Kuller was discharged be cause he intentionally made
numerous statements at work that were inappropriate and
unprofessional. He was warned about this and continued to
engage in the same behavior. His actions showed clearly a
serious violation of the standards of behavior the employer has
a right to reasonably expect of the employee. Kuller claimed
the ULJ should have given greater deference to the original
determination of []eligibility. This is not a correct statement of
the law.

Kuller appeals by writ of certiorari.
DECISION
In his brief to this court, Kuller identifies the following nine issues
4 from his request
for reconsideration of the posthearing decision: various challenges to the factual findings
(numbered on appeal as issues 1, 2, and 9); an assertion that the ULJ failed to rule out each

4 We observe that the request for reconsideration is not numbered and that the nine issues
identified by Kuller on appeal do not exactly ma tch those issues raised in the request for
reconsideration. None of the discrepancies, however, impacts our opinion.
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statutory exception to the definition of “employment misconduct” (numbered on appeal as
issue 3); an argument that the ULJ applied the incorrect standard of review in its
posthearing decision (numbered as issue 4); a variety of procedural errors regarding notice
and admission of evidence (numbered as issues 5, 6, and 7); and a belief that the ULJ failed
to address his claim of retaliation (numbered as issue 8). Kuller argues that the ULJ’s
failure to address each of the issues in th e decision on reconsidera tion compels reversal
and remand because the ULJ’s defective decision does not satis fy the factors set forth in
section 268.105, subd. 7(d) (2020). We are not convinced, however, and we conclude that
relator’s arguments misconstrue the ULJ’s decision and rest on a misunderstanding of the
applicable law and procedures below.
Minnesota provides “workers who are unemployed through no fault of their own a
temporary partial wage replacement.” Minn. Stat. § 268.03 (2020). An employee who is
discharged for misconduct is ineligible for unemployment benefits. Minn. Stat. § 268.095,
subd. 4(1) (2020). DEED makes an initial de termination of eligibility for unemployment
benefits, Minn. Stat. § 268.101, subd. 2 (2020 ), and either party may appeal this initial
determination and request a “d e novo” evidentiary hearing, Minn. Stat. § 268.105, subd.
1(a) (2020). The ULJ makes a decision “upon the evidence obtained” and issues “written
findings of fact, reasons for decision, and de cision.” Minn. Stat. § 268.105, subd. 1a(a)
(2020). The ULJ’s posthearing decision is fi nal unless a request for reconsideration is
filed. Id. “Any party, or the commissioner, may . . . file a request for reconsideration” of
the ULJ’s posthearing decision. Minn. Stat. § 268.105, subd. 2(a) (2020).
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A request for reconsideration must be decided by the ULJ who issued the
posthearing decision, and if timely filed, the ULJ makes a decision on reconsideration that
either affirms, modifies, or sets aside the findings and conclusions from the ULJ’s
posthearing decision and orders an additional evidentiary hearing. Minn. Stat. § 268.105,
subd. 2(f)(1), (2), (3) (2020). The relator may obtain appellate review by writ of certiorari.
Minn. Stat. § 268.105, subd. 7.
When reviewing the ULJ’s decision, we may remand for further proceedings,
affirm, reverse, or modify the decision if th e relator’s substantial rights were prejudiced
because the ULJ’s findings, infe rences, conclusion, or decision are “(1) in violation of
constitutional provisions; (2) in excess of the statutory authority or jurisdiction of the
department; (3) made upon unlawful procedur e; (4) affected by other error of law;
(5) unsupported by substantial ev idence in view of the hearing record as submitted; or
(6) arbitrary or capricious.” Minn. Stat. § 268.105, subd. 7(d). We defer to the credibility
determinations of the ULJ a nd uphold the factual finding s regarding ineligibility and
employment misconduct if substantial evidence in the record supports them. Id.; Wilson v.
Mortg. Res. Ctr., Inc. , 888 N.W.2d 452, 460-61 (Minn. 2 016). “Substantia l evidence is
‘such relevant evidence as a reasonable mind might accept as ade quate to support a
conclusion.’” Posey v. Securitas Sec. Servs. USA, Inc., 879 N.W.2d 662, 665 (Minn. App.
2016) (citing Minneapolis Van & Warehouse Co. v. St. Paul Terminal Warehouse Co. ,
180 N.W.2d 175, 178 (Minn. 1970)). When addressing a question of law, this court is “free
to exercise . . . independent judgment.” Jenkins v. Am. Exp. Fin. Corp., 721 N.W.2d 286,
289 (Minn. 2006). We do not reweigh co nflicting evidence, see Wilson, 888 N.W.2d at
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460, and we will not reverse a ULJ’s decision when the claimed error did not prejudice the
relator’s substantial rights, Minn. Stat. § 268.105, subd. 7(d); Ywswf v. Teleplan Wireless
Servs., Inc., 726 N.W.2d 525, 530 (Minn. App. 2007) (rejecting the relator’s argument of
an unfair hearing because the asserted error was harmless).
Kuller argues that the decision on reconsid eration inadequately addressed each of
the nine issues raised in his request for re consideration. We are not convinced for two
primary reasons. First, we observe that contrary to Kuller’s argument, the ULJ addressed
the bulk of the issues raised in Kuller’s request for reconsider ation. For example, in the
decision on reconsideration, the ULJ addresse d the factual disputes raised in Kuller’s
request for reconsideration (identified as issues 1, 2, and 9). The ULJ noted that this case
“largely came down to cred ibility,” reiterated the prior de termination that “Kuller’s
testimony was not credible,” pointed out that Kuller “blatantly contradicted” himself at the
evidentiary hearing and explained how the record corroborated the testimony provided by
Supervalu’s witnesses. Because of these credibility determinations, the ULJ concluded in
its decision on reconsideration that the ev idence admitted at th e evidentiary hearing
supported the factual findings in the posthearing decision.
Similarly, the ULJ addressed and rejected Kuller’s argument regarding the statutory
definition of “employment misconduct” (identified as issue number 3). The ULJ explicitly
concluded that Kuller “inten tionally made numerous statements at work that were
inappropriate and unprofessional,” and that Ku ller “was warned about this and continued
to engage in the same behavior.” The ULJ determined that these actions met the statutory
definition. The ULJ also rej ected the standard-of-review ar gument Kuller made as issue
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number 4. The ULJ concluded that this argument was based on an incorrect statement of
the law. Finally, the ULJ addressed Kuller’s claim of retaliation (identified as issue number
8). The ULJ disbelieved Kull er’s testimony regarding hi s suspicion that Supervalu
retaliated against him. In this regard, the UL J directly addressed the bulk of the issues
raised (including issues 1, 2, 3, 4, 8, and 9) and did not, as Kuller now argues, ignore eight
of the nine issues that Kuller identifies from his request for reconsideration.
Second, many of Kuller’s contentions misstate the applicable law and administrative
procedures. For example, contrary to Kulle r’s argument, no legal authority requires that
the ULJ’s decision on reconsideration repeat facts and reasoning already included in the
posthearing decision. Similarly, Kuller raises an issue (identified as issue number 3)
regarding the exceptions to the statutory definition of “employment misconduct.” Contrary
to his belief, there is no legal authority requi ring the ULJ to specifically address and rule
out each of the ten possible exceptions to this de finition. This is especially true when, as
Kuller did in this case, the re lator denies the allegations in stead of admitting the conduct
and arguing that it is excusable under one of the ten exceptions.
In addition, Kuller argues that in the UL J’s posthearing decision, the ULJ applied
de novo review and did not defer to DEED’s initial determination of eligibility (identified
as issue 4). Kuller also argues that in the ULJ’s posthearing decision, the ULJ improperly
relied on evidence that was not submitted to DEED prior to the department’s initial
determination of eligibility (identified as issues 5 and 6). Kuller is mistaken regarding the
applicable law. Contrary to his argument, th e ULJ applied the correct standard of review
and properly relied on the evidence admitted at the evidentiary hearing. See Minn. Stat.
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§ 268.105, subds. 1(a) (referring to “de novo ” evidentiary hearing), 1a(a) (requiring the
ULJ to decide the appeal from DEED’s in itial determination based “upon the evidence
obtained” at the evidentiary hearing). Finally, Kuller raises a concern that the ULJ did not
provide sufficient notice that the evidentiary hearing would relate to employment
misconduct (identified as issue 7). This ar gument, however, overlooks the statements in
the written notice and at the outset of the heari ng, which made clear that the scope of the
hearing would include the allegations of misc onduct. We decline to reverse the ULJ’s
decision on reconsideration because many of the issues identified by Kuller (including
issues 3, 4, 5, 6, and 7) are based on mi sunderstandings of the applicable law and the
procedures below.5
Finally, portions of Kuller’s brief could be construed to challenge the ULJ’s
decision not to hold a new evidentiary heari ng or reopen the record. To obtain a new
evidentiary hearing, the governin g statutory provisions require Kuller to show that some
additional evidence not previously submitted would either change the outcome of the
proceeding or would cast doubt on the truth of evidence that was previously admitted and
that affected the outcome of the proceeding . Minn. Stat. § 268.105, subd. 2(c)(1), (2)
(2020). We review this part of the ULJ’s decision on reconsideration for an abuse of

5 We note that appellate review of issues 6 and 7 may have be en forfeited by Kuller’s
conduct and testimony at the ev identiary hearing. We also have concerns that Kuller
cannot establish the requisite prejudice to prevail on appeal. 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”); Mi nn. R. Civ. P. 61 (stating th at harmless error is to be
ignored); Ywswf, 726 N.W.2d at 530 (rejecting the re lator’s argument in the absence of
prejudice). Given our decision, however, we need not address forfeiture or prejudice.
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discretion. Eley v. Southshore Invs., Inc. , 845 N.W.2d 216, 218 (Minn. App. 2014);
Skarhus v. Davanni’s Inc., 721 N.W.2d 340, 345 (Minn. App. 2006).
Kuller submitted the mediation statement6 in support of the reconsideration request,
but he did not offer an explanation on appeal regarding how the mediation statement would
have changed the outcome of the proceeding or would have cast doubt on evidence that
affected the outcome. The mediation statemen t refers to a single incident and does not
directly relate to the employment decision at issue or the incidents from the spring of 2020;
June 1, 2020; December 17, 2020; or March 5, 2021. Moreover, the ULJ makes factual
findings independent of any mediation outcome. We discern no abuse of discretion in the
ULJ’s determination that the mediation stat ement would have no impact on the factual
findings regarding the incidents at issue and that the mediation statement casts no doubt on
the evidence showing a pattern of inappropriate conduct.
Affirmed.

6 Kuller also submitted a document titled “E xhibit 16—Work Schedule,” but makes no
reference to this document on appeal. We n eed not address whether consideration of the
document would have compelled a new evidentiary hearing. See State Dep’t of Lab. &
Indus. v. Wintz Parcel Drivers, Inc., 558 N.W.2d 480, 480 (M inn. 1997) (declining to
address issue not adequately briefed); Waters v. Fiebelkorn, 13 N.W.2d 461, 465 (Minn.
1944) (“[T]he burden of showing error rests upon the one who relies upon it.”).