Anne L Doering, 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This opinion is nonprecedential except as provided by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
A23-1977

Anne L Doering,
Relator,

vs.

2Care4U South, LLC,
Respondent,

4U Home Health Care South, LLC,
Respondent,

Department of Employment and Economic Development,
Respondent.

Filed October 7, 2024
Affirmed
Halbrooks, Judge *

Department of Employment and Economic Development
File Nos. 49774838-3, 49804703-3

Anne Doering, Shakopee, Minnesota (pro se relator)

2Care4U South, LLC, Savage, Minnesota (respondent employer)

4U Home Health Care South, LLC, Savage, Minnesota (respondent employer)

Keri A. Phillips, Katrina Gulstad, Minnesota Department of Employment and Economic
Development, St. Paul, Minnesota (for respondent department)

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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Considered and decided by Reyes, Presiding Judge; Slieter, Judge; and Halbrooks,
Judge.
NONPRECEDENTIAL OPINION
HALBROOKS, Judge
Relator challenges two decisions by the unemployment-law judge (ULJ) that she is
ineligible for unemployment benefits after separating from employment with two
respondent-employers. We affirm.
FACTS
Respondent-employers 2Care4U South, LLC and 4U Home Health South, LLC are
related businesses that both provide home health- care services for their respective clients.
Amy Wahlstrom-McAlister is the CEO of both businesses.
Relator Anne Doering worked for both companies as a registered nurse from
February 2022 to July 3, 2023. She worked approximately 25 to 30 hours per week for
2Care4U and approximately ten hours per month for 4U Home Health, earning the same
hourly wage at both companies. Doering’s job duties included scheduling and performing
intakes with new clients; supervising home health aides and personal -care attendants; and
visiting clients for wound care, catheter changes, medication setups, and vitals checks.
Doering was also required to report to the office to attend weekly meetings, complete
paperwork required for state licensing, and provide training and education for home health
aides.
On July 3, 2023, Wahlstrom-McAlister told Doering that she was “letting her go ,”
citing performance issues that included tardiness to client visits, tardiness to weekly
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in-office meetings, and failure to complete required paperwork on time. Doering asked to
continue working, and Wahlstrom -McAlister offered Doering the option to continue
working as the primary nurse for two clients, reduced from the approximately ten clients
she had previously, subject to the terms of a performance -improvement plan (PIP).
Doering’s other clients were assigned to another nurse. Doering’s two remaining clients
received services through 2Care4U; Doering would no longer serve any clients through 4U
Home Health . With these changes, Wahlstrom-McAlister also reduced Doering’s pay.
Doering accepted Wahlstrom-McAlister’s offer. Wahlstrom-McAlister drafted a PIP, and
Doering signed it. Wahlstrom-McAlister later testified that Doering understood that she
would be terminated if she was late to any future meetings or client visits. Later that day,
Doering texted Wahlstrom-McAlister, “I do not feel good about what we discussed. I will
accept the termination.”
Doering applied for unemployment benefits. Respondent Minnesota Department of
Employment and Economic Development (DEED) determined that she is ineligible for
benefits in connection with her separation from 4U Home Health because she was
discharged for employment misconduct. DEED also determined that she is ineligible for
benefits in connection with her separation from 2Care4U because she quit for a reason that
was not a good reason caused by the employer. Doering appealed both determinations ,
and the matters proceeded to a single hearing before a ULJ.
With respect to timeliness of client visits, Wahlstrom- McAlister testified that
Doering was sometimes up to “two to four hours late” and other times did not show up on
the scheduled date at all. Wahlstrom -McAlister testified that she received at least 20
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complaints from 10 to 15 clients about Doering’s tardiness and no- shows and that when
clients called her asking where Doering was, Doering did not respond to
Wahlstrom-McAlister’s attempts to contact her.
Doering testified that she could only recall two complaints, one from a client’s
father that was unrelated to lateness and one from a fellow employee when Doering was
late to an in-home training. When the ULJ asked Doering whether Wahlstrom-McAlister
ever talked to her about a client complaining that she was late, Doering testified, “I would
need a specific incident.” When asked to answer the question in general terms, Doering
stated that Wahlstrom-McAlister sometimes told her that clients had complained that she
was late but that Wahlstrom-McAlister did not give her specific examples.
Doering estimated that she was 10 to 15 minutes late to approximately five percent
of client visits. S he did not remember ever being two to four hours late. She also stated
that she called clients ahead of time if she was running late and that they were
understanding. She stated that if she was going to be an hour late, she would reschedule,
but that did not happen very often. When asked if she could have avoided being late,
Doering testified that she could have planned visits and managed her time bette r by
scheduling clients according to their location.
With respect to weekly meetings, Wahlstrom- McAlister testified that Doering was
15 to 60 minutes late to nearly every meeting. Doering admitted that she was late to
meetings but stated that the meetings were “very casual” and that even when she was 10 to
15 minutes late, the meeting sometimes would not start for another 20 minutes.
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Addressing Doering’s failure to timely submit paperwork, Wahlstrom-McAlister
testified that Doering often failed to complete and turn in the paperwork despite stating that
she had done so when she submitted her timecards. The companies’ administrative
assistant, A.N., testified that she kept a running list of paperwork that was overdue and that
she consistently reminded Doering to submit it. Doering testified that as an administrative
assistant, A.N. did not understand what paperwork needed to be submitte d and when.
Doering admitted that she failed to complete some of the paperwork on time because of
time constraints and because of her preference for electronic charting but said that did not
happen very often.
Wahlstrom-McAlister submitted documentation of five different warnings to the
ULJ, one of which was accompanied by a PIP from 2022. The warnings address ed all of
the performance issues that Wahlstrom-McAlister claimed were employment misconduct .
Wahlstrom-McAlister also noted in the warnings and her testimony that Doering refused
to sign them. Doering disputed this testimony, stating that she had never seen the warnings
and that Wahlstrom -McAlister had only mentioned these issues in casual verbal
conversations. But Doering concede d that in some of those conversations
Wahlstrom-McAlister was “actually mad.” Doering suggested that the warnings were
prepared after her separation but admitted that she refused to sign the PIP in 2022, claiming
that it was unreasonable.
Wahlstrom-McAlister also submitted “progress notes ,” which document ed
information relevant to clients’ medical car e, and an email from a DHS nurse manager
relaying additional client complaints . The progress notes were drafted by another nurse,
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R.D., shortly before and after Doering’s separation and describe client complaints about
Doering’s timeliness, communication, and quality of care. The nurse manager’s email
describes the same complaints but identifies the subject as an employee named “Sarah.”
Before the hearing, Doering requested subpoenas to obtain testimony from the nurse
manager and three of the clients identified in R.D.’s progress notes. At the conclusion of
the hearing, the ULJ stated that she did “not find it necessary to continue [the] hearing to
receive [their] testimony.” Doering also submitted an exhibit , the contents of which are
not in the record or described in the briefing, that the ULJ excluded because it contained
sensitive information.
Following the hearing, the ULJ determined that Doering is ineligible for benefits
pursuant to her employment with 4U Home Health because she was discharged for
employment misconduct. The ULJ also determined that Doering is ineligible for
unemployment benefits pursuant to her employment with 2Care4U because she quit for a
reason that was not a good reason caused by 2Care4U; rather, Doering’s reason for quitting
arose out of her employment misconduct. Doering requested reconsideration of the
decisions, and the ULJ denied the request.
This certiorari appeal by Doering follows.
DECISION
Doering presents two overall challenges on appeal. First, she argues that the ULJ
failed to conduct a fair and impartial hearing as it relates to the evidence of Doering’s
employment misconduct. Second, she argues that the ULJ erred by determining that she
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did not quit 2Care4U for a good reason, asserting that she did not quit and that she
reasonably rejected Wahlstrom-McAlister’s offer of continued employment.
When reviewing a ULJ’s eligibility determination, we may affirm, remand for
further proceedings, or reverse or modify the decision if the substantial rights of the relator
have been prejudiced because the findings, inferences, conclusion, or decision are a ffected
by an error or law or are unsupported by substantial evidence. Minn. Stat. § 268.105,
subd. 7(d) (Supp. 2022).
We review de novo “the ULJ’s interpretation of the unemployment statutes
and . . . the ultimate question whether an applicant is eligible to receive unemployment
benefits.” Menyweather v. Fedtech, Inc. , 872 N.W.2d 543, 545 (Minn. App. 2015). We
review a ULJ’s factual findings for whether they are substantially supported by the
evidence. Gonzalez Diaz v. Three Rivers Cmty. Action, Inc., 917 N.W.2d 813, 815- 16
(Minn. App. 2018). Substantial evidence is “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Id. at 816 n.4 (emphasis and quotation
omitted). In reviewing factual findings, we defer to the ULJ’s credibility determinations
and evaluation of conflicting evidence. Nichols v. Reliant Eng’g & Mfg., Inc., 720 N.W.2d
590, 594 (Minn. App. 2006). We review a ULJ’s decision to deny an additional evidentiary
hearing for an abuse of discretion. Kelly v. Ambassador Press, Inc., 792 N.W.2d 103, 104
(Minn. App. 2010).
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I. The ULJ conduct ed a fair and impartial hearing and did not err by
determining that Doering engaged in employment misconduct .
Doering presents numerous challenges to the ULJ’s development and consideration
of the record on the subject of employment misconduct. Whether Doering engaged in
employment misconduct underlies both of the ULJ’s determinations because the ULJ
determined that (1) Doering is ineligible for benefits in connection with her employment
with 4U Home Health because she was discharged for employment misconduct and
(2) Doering is ineligible for benefits in connection with her employment with 2Care4U
because her resignation occurred because of her employment misconduct . See Minn. Stat.
§ 268.095, subds. 1(1), 3(d), 4(1) (2022). “Employment misconduct means 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) (2022).
At the outset, we note that Doering represented herself at the hearing. “The ULJ is
required to assist unrepresented parties in the presentation of evidence, and to control the
hearing in order to protect the parties’ right to a fair hearing and ensure that relevant facts
are clearly and fully developed.” Ntamere v. Decisionone Corp., 673 N.W.2d 179, 180
(Minn. App. 2003); see also Minn. R. 3310.2921 (2023) (“The unemployment law judge
must assist all parties in the presentation of evidence.”) . “When a party is pro se, the ULJ
must help the party to recognize and interpret the parties’ claims.” Ntamere, 673 N.W.2d
at 180 (quotation omitted).
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Doering first argues that the ULJ’s denial of her request for subpoenas was legally
insufficient and arbitrary. The ULJ has authority to subpoena witnesses. Minn. Stat.
§ 268.188(a) (2022).
The unemployment law judge may issue subpoenas to
compel the attendance of witnesses . . . upon a showing of
necessity by the requesting party. . . . The requesting party
must identify the person . . . to be subpoenaed, the subject
matter of the evidence requested, and their necessity. A request
for a subpoena may be denied if the testimony or documents
sought would be irrelevant, immaterial, or unduly cumulative
or repetitious.

Minn. R. 3310.2914, subp. 1 (2023). We review a ULJ’s decision to deny a request for a
subpoena for an abuse of discretion. Icenhower v. Total Auto., Inc., 845 N.W.2d 849, 853
(Minn. App. 2014), rev. denied (Minn. July 15, 2014).
Doering asserts that the three clients she sought to subpoena had “firsthand
knowledge about the alleged complaints” that appear in R.D.’s progress notes. In her
subpoena request, she stated that the clients’ testimony would confirm whether those
clients complained to R.D. and, if so, what they told her. She also asserts that the DHS
nurse manager she sought to subpoena had “firsthand knowledge about [the] email that was
misrepresented as a complaint.” In her subpoena request, she stated that the DHS nur se
manager would confirm whether the email was referring to Doering or someone named
Sarah.
The ULJ did not abuse her discretion when she decided it was not necessary to
receive testimony from witnesses with “firsthand knowledge.” There is ample evidence in
the record about client complaints, and the ULJ could have reasonably concluded that
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testimony from three of those clients would not undermine a finding that many clients
regularly complained. The complaints in the progress notes are detailed and consistent
with the other evidence, including Doering’s admissions that she was sometimes late and
that Wahlstrom-McAlister notified her that this was a problem.
Regarding the nurse manager’s testimony, the ULJ accepted
Wahlstrom-McAlister’s explanation at the hearing that the nurse manager mistakenly used
the name Sarah because “Sarah” held Doering’s position before Doering was hired and
Wahlstrom-McAlister received the email during Doering’s employment. The explanation
is consistent with the dates of Doering’s employment, during which she was the only nurse
employed by the companies, and the email describes the same complaints cited throughout
the record. We the refore conclude that the ULJ did not abuse her discretion by denying
Doering’s subpoena requests.
Second, Doering argues that the ULJ failed to assist her in developing the record on
the circumstances of the written warnings, placing an “unfair burden of proof” on Doering
by asking her why Wahlstrom-McAlister would lie about the warnings. In her request for
reconsideration, Doering argued that further testimony from Wahlstrom -McAlister about
“why Doering refused to sign [the warnings], why no witness signed them to confirm
authenticity, what room they were presented to Doering in, etc.” would have revealed that
the warnings were falsified.
The ULJ’s determinations of ineligibility contain no references to the written
warnings. But to the extent that the ULJ may have relied on them, the ULJ found only that
Doering’s conduct was a serious violation of the employers’ reasonable expectations and
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that Doering was aware of the expectations. The ULJ stated that these findings were based
on Doering’s own testimony. Although Doering testified that she never saw the written
warnings, Doering also testified more generally that Wahlstrom -McAlister notified her of
the issues with her job performance, that she was aware she was expected to be on time ,
and that she could have improved her timeliness with better planning.
Doering argues that the ULJ should not have relied on her testimony because
Doering struggled to rec all events and more reliable evidence was available to, but not
submitted by, the employers. Because Doering did not raise these arguments to the ULJ in
her requests for reconsideration, we decline to consider them. See Peterson v. Ne. Bank
Minneapolis, 805 N.W.2d 878, 883 (Minn. App. 2011) (“[B]ecause this issue was not raised
before the ULJ, it is not properly before this court on review.”). The ULJ found Doering’s
testimony about her issues with timeliness credible because her statements were against
her own interest. We defer to the ULJ’s credibility determinations and discern no clear
error with respect to this finding. We therefore conclude that the ULJ did not violate her
duty to assist Doering and ensure the relevant facts regarding the warnings were developed
and did not abuse her discretion by denying Doering’s request for a second evidentiary
hearing to take more testimony on that subject.
Doering argues that the evidence shows, and further evidence would support, that
R.D. falsified the progress notes because R.D. is biased in favor of the employers, the
complaints do not belong in medical records, and other medical records might not
corroborate the complaints in the documents . Doering did not make this argument to the
ULJ; rather, she argued at the hearing that the notes were irrelevant because they were
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written after her separation. Just as a party cannot obtain appellate review of an issue not
raised to the ULJ, a party may not “obtain review by raising the same general issue litigated
below but under a different theory.” Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).
We decline to consider Doering’s remaining arguments because they are not properly
before this court.
Doering also contends that the ULJ erred by excluding an exhibit that contained
sensitive information. B ut Doering did not explain in her submissions to the ULJ, and does
not explain on appeal, how admitting the exhibit might have changed the outcome of the
hearing. Therefore, we do not address this argument. Peterson, 805 N.W.2d at 883;
Schoepke v. Alexander Smith & Sons Carpet Co., 187 N.W.2d 133, 135 (Minn. 1971) (“An
assignment of error based on mere assertion and not supported by any argument or
authorit[y] is waived . . . unless prejudicial error is obvious on mere inspection.” ).
We conclude that the ULJ conducted a fair and impartial hearing and did not violate
her duty to assist Doering in developing the record. Doering makes no further argument
that the record does not support the ULJ’s determination that her conduct met the definition
of employment misconduct. A review of the record supports the ULJ’s determination.
Doering does not present any other challenges to the ULJ’s first determination, that
she was terminated from 4U Home Health for employment misconduct. We discern no
error in that determination and therefore affirm the ULJ’s decision that Doering is ineligible
for unemployment benefits in connection with her employment with 4U Home Health. We
also affirm the ULJ’s finding that Doering committed employment misconduct as it relates
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to the ULJ’s second determination and proceed to Doering’s argument that she quit
employment with 2Care4U for a good reason.
II. The ULJ did not err by determining that Doering quit 2Care4U for a reason
that was not a good reason caused by the employe r.
Doering challenges the ULJ’s determination that she quit her employment with
2Care4U for a reason that was not a good reason caused by 2Care4U, arguing that she did
not quit and that she reasonably rejected Wahlstrom-McAlister’s offer to continue working
under the PIP with fewer hours and lower pay.
An applicant who voluntarily quits their employment is ineligible for
unemployment benefits unless an exception applies. Minn. Stat. § 268.095, subd. 1 (2022).
One exception is when the applicant quits “because of a good reason caused by the
employer.” Id., subd. 1(1). “Whether an employee has been discharged or voluntarily quit
is a question of fact.” Nichols, 720 N.W.2d at 594 (quotation omitted). Therefore, we
review a ULJ’s finding that an applicant quit for whether that finding is “substantially
supported by the evidence.” Id.
“A quit from employment occurs when the decision to end the employment was, at
the time the employment ended, the employee’s.” Minn. Stat. § 268.095, subd. 2(a)
(2022). “A discharge from employment occurs when any words or actions by an employer
would lead a reasonable employee to believe that the employer will no longer allow the
employee to work for the employer in any capacity.” Minn. Stat. § 268.095, subd. 5(a)
(2022). The ULJ found that Doering quit her employment with 2Care4U when she sent
the text message that she would “accept the termination.”
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Doering asserts that she was discharged from 2Care4U, and did not quit, because
her employment ended when Wahlstrom -McAlister notified her that she was being let go
at the beginning of the July 3, 2023 meeting—not when Doering sent
Wahlstrom-McAlister the text message that she would accept the termination. Doering
cites the provision in the statute that states, “An applicant may not be held ineligible for
unemployment benefits under this section for any acts or omissions occurring after the
applicant’s separation from employment with the employer.” Minn. Stat. § 268.095,
subd. 7 (2022). Doering appears to argue that, because she was terminated at the beginning
of the July 3, 2023 conversation with Wahlstrom -McAlister, the ULJ should not have
considered Wahlstrom -McAlister’s subsequent offer of alternative employment or
Doering’s decisions first to accept and subsequently to reject the offer.
Doering’s reliance on Minn. Stat. § 268.095, subd. 7 is misplaced. The statute states
that the ULJ may not consider “acts or omissions occurring after the applicant’s separation
from employment.” Id. (emphasis added). The ULJ found that the separation occurred
when Doering sent the text message because, after considering testimony and evidence
about the full July 3, 2023 conversation and Doering’s text message, those events occurred
before and at the time of Doering’s separation. The ULJ’s finding that Doering was still
employed until she sent the text message is supported by substantial evidence, including
Doering’s own testimony that she understood she could continue working for 2Care4U
under the PIP if she wanted to do so. We therefore conclude that the ULJ did not consider
any evidence that should have been excluded and did not err by determining that Doering
quit 2Care4U.
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Next, Doering asserts that she reasonably rejected Wahlstrom -McAlister’s offer of
continued employment under the PIP with reduced hours and pay. Whether an applicant’s
reason for quitting constitutes a good reason caused by the employer is a question of law
that we review de novo; the ULJ’s conclusion must be based on factual findings that are
supported by substantial evidence in the record. Thao v. Command Ctr., Inc., 824 N.W.2d
1, 4 (Minn. App. 2012). A good reason caused by the employer is defined exclusively by
statute. Minn. Stat. § 268.095, subd. 3(g) (2022). The statute defines good reason as
follows:
A good reason caused by the employer for quitting is a
reason:
(1) that is directly related to the employment and for
which the employer is responsible;
(2) that is adverse to the worker; and
(3) that would compel an average, reasonable worker to
quit and become unemployed rather than remaining in the
employment.

Id., subd. 3(a) (2022). “A reason for quitting employment is not a good reason caused by
the employer for quitting if the reason for quitting occurred because of the applicant ’s
employment misconduct.” Id., subd. 3(d).
The ULJ determined that the reason for Doering’s demotion and subsequent
resignation arose out of Doering’s employment misconduct. Wahlstrom-McAlister
initially communicated her intent to discharge Doering because of Doering’s performance
deficiencies. Then, when Doering asked to continue working, Wahlstrom -McAlist er
agreed, with the condition that Doering improve her performance pursuant to the terms of
the PIP. We therefore conclude that the ULJ’s finding that Doering’s reason for quitting
16
arose out of her employment misconduct is supported by substantial evidence . And
because Doering’s reason for quitting occurred because of her employment misconduct ,
the ULJ did not abuse its discretion by determining that Doering quit for a reason that was
not a good reason caused by the employer. We therefore affirm the ULJ’s decision that
Doering is not eligible for unemployment benefits in connection with her employment with
2Care4U.
Affirmed.