Katie Kissner, Relator v. Restore 24, LLC, Department of Employment and Economic Development ( 2016 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A15-2020
Katie Kissner,
Relator,
vs.
Restore 24, LLC,
Respondent,
Department of Employment and Economic Development,
Respondent.
Filed August 15, 2016
Affirmed
Smith, Tracy M., Judge
Department of Employment and Economic Development
File No. 33802414-2
Katie R. Kissner, St. Cloud, Minnesota (pro se relator)
Restore 24, LLC, Sauk Rapids, Minnesota (respondent)
Lee B. Nelson, Minnesota Department of Employment and Economic Development,
St. Paul, Minnesota (for respondent department)
Considered and decided by Larkin, Presiding Judge; Rodenberg, Judge; and
Smith, Tracy M., Judge.
UNPUBLISHED OPINION
SMITH, TRACY M., Judge
Relator Katie Kissner challenges an unemployment-law judge’s (ULJ)
determination that she was discharged due to employment misconduct and that she is
therefore ineligible for unemployment benefits. Because we defer to the ULJ’s
credibility determinations and the ULJ did not err by not obtaining testimony from
someone Kissner identified as a potential witness, we affirm.
FACTS
Kissner began working as a cleaning technician at respondent Restore 24, LLC in
June 2013. She was quickly promoted to cleaning manager. But following Restore 24’s
restructuring of job duties in March 2015, Kissner was demoted to cleaning technician.
Restore 24 employees generally report to Restore 24’s office and carpool to each
day’s jobsite. On July 15, 2015, Kissner had been approved to report directly to her
jobsite as long as she agreed to check in with her supervisor to make sure that the
schedule had not changed. Due to a schedule change caused by a sick employee,
Kissner’s supervisor attempted to contact Kissner to tell her to report to Restore 24’s
office and carpool to a different jobsite. When Kissner did not arrive at Restore 24 on
time, the other employees left without her. Kissner reported to the office a few minutes
later and was sent home.
Later that day, Restore 24’s CEO, John Mondloch, thrice attempted to contact
Kissner. He left a voicemail on his third call. According to Mondloch and Restore 24’s
office manager, Sherri Jenkins, who overheard Mondloch leaving the voicemail,
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Mondloch asked Kissner to call him back by 4:00 p.m. to discuss the day’s events. They
denied that Mondloch made any reference to firing Kissner. But according to Kissner,
Mondloch stated that if Kissner failed to return the call by 4:00 p.m., she would be fired.
Kissner’s boyfriend stated that he heard the voicemail and agreed with Kissner’s
description of it. Kissner did not receive Mondloch’s voicemail until 5:30 or 6:00 p.m.
and did not return Mondloch’s call because she “took [Mondloch’s voicemail] as [her]
termination.”
Kissner did not report to work as scheduled on July 16, 17, and 20. Restore 24
sent a letter to Kissner on July 21, explaining its company policy that three consecutive
absences are considered a voluntary resignation. Because Kissner had missed three
consecutive days of work, Restore 24 accepted Kissner’s voluntary resignation from
employment.
Following a hearing, a ULJ determined that Kissner had been discharged for
employment misconduct and was therefore ineligible for unemployment benefits because
the preponderance of the evidence showed that Kissner was discharged by letter on
July 21 after failing to show up to work for three days. In making this determination, the
ULJ found that Mondloch’s testimony about the July 15 voicemail was more credible
because Jenkins overheard Mondloch leaving the voicemail, Kissner’s boyfriend’s
credibility was undermined by his relationship with Kissner, and Kissner demonstrated
conduct at the hearing consistent with Mondloch’s testimony that “Kissner sometimes
hears what she wants to hear.”
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Kissner timely filed a request for reconsideration on two grounds. First, Kissner
argued that Restore 24 provided false evidence at the hearing about prior oral and written
warnings given to Kissner about her job performance. The ULJ rejected this argument
because Kissner had not shown that the evidence the ULJ relied upon to make his
employment-misconduct determination was likely false. Kissner had challenged the job-
performance evidence at the hearing, arguing that she had not received the warnings and
that Restore 24’s documents were therefore “falsified.” But Restore 24 did not assert at
the hearing that Kissner had received the warnings, and the ULJ quickly determined that
the documents were “created to memorialize what happened” in advance of the hearing.
Second, Kissner argued that she was denied the opportunity to question someone she had
identified as a potential witness. The ULJ rejected this argument because Kissner had
agreed at the hearing that it was not necessary to call this witness. The ULJ affirmed his
ineligibility determination on reconsideration.
Kissner appeals.
DECISION
Kissner challenges the ULJ’s determination that she was discharged due to
employment misconduct. An employee is ineligible for unemployment benefits if she
“was discharged because of employment misconduct.” Minn. Stat. § 268.095, subd. 4(1)
(2014). Employment misconduct is defined as “any intentional, negligent, or indifferent
conduct . . . that displays clearly: (1) a serious violation of the standards of behavior the
employer has the right to reasonably expect of the employee; or (2) a substantial lack of
concern for the employment.” Id., subd. 6(a) (2014).
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We may reverse or modify a ULJ’s decision if the relator’s substantial rights have
been prejudiced because the ULJ’s findings, inferences, conclusion, or decision are
unsupported by the record or affected by an error of law. Minn. Stat. § 268.105, subd.
7(d)(4)-(5) (Supp. 2015). “Whether an employee committed employment misconduct is
a mixed question of fact and law.” Skarhus v. Davanni’s Inc., 721 N.W.2d 340, 344
(Minn. App. 2006). Whether an employee committed a particular act is a question of
fact, and whether that act constitutes employment misconduct is a question of law. Id.
We view the ULJ’s findings of fact in the light most favorable to the decision and give
deference to the ULJ’s credibility determinations. Id.
The ULJ determined that Kissner had been discharged for employment
misconduct because Kissner was discharged by letter on July 21 after failing to show up
to work for three days. Kissner argues that the ULJ erred because she was instead
discharged in Mondloch’s July 15 voicemail. But the ULJ found Mondloch’s testimony
regarding the voicemail to be more credible, and we defer to the ULJ’s credibility
determination. See id.
The essence of Kissner’s argument is that the ULJ erred by finding Mondloch’s
testimony more credible than Kissner’s. As at the hearing and on reconsideration,
Kissner focuses on the documents that Restore 24 submitted regarding Kissner’s job
performance, and suggests that this “false documentation” proves that Mondloch was not
credible. Kissner is correct that it is unlawful for an employer to knowingly make false
representations to prevent an applicant from obtaining unemployment benefits. See
Minn. Stat. § 268.184, subd. 2 (2014). But no one from Restore 24 testified that Kissner
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had been provided with written warnings, and the ULJ agreed with Kissner that the job-
performance documents were only prepared in anticipation of the hearing. Moreover,
because the challenged documents did not discuss Mondloch’s voicemail or Kissner’s
failure to report to work for three days, they were irrelevant to the ULJ’s determination
that Kissner committed employment misconduct by failing to show up to work. The
challenged documents do not undermine the ULJ’s finding that Mondloch’s testimony
about the voicemail was more credible than Kissner’s.
Kissner also argues that the ULJ erred by finding that Kissner’s boyfriend’s
credibility was undermined by his relationship with Kissner. “Credibility determinations
are the exclusive province of the ULJ and will not be disturbed on appeal.” Skarhus, 721
N.W.2d at 345. We decline to disturb the ULJ’s credibility determinations regarding
either Mondloch or Kissner’s boyfriend.
Giving deference to the ULJ’s credibility determinations, we conclude that the
record supports the ULJ’s finding that Kissner was fired in the July 21 letter after failing
to report to work for three days, and not in the July 15 voicemail. An employer “has a
right to expect an employee to work when scheduled,” Del Dee Foods, Inc. v. Miller, 390
N.W.2d 415, 417 (Minn. App. 1986) (quotation omitted), and a “right to establish and
enforce reasonable work rules relating to absenteeism,” Jones v. Rosemount, Inc., 361
N.W.2d 118, 120 (Minn. App. 1985). By failing to report to work for three consecutive
days, Kissner violated the standards of behavior that Restore 24 had a right to expect.
See Minn. Stat. § 268.095, subd. 6(a)(1). The ULJ therefore did not err by concluding
that Kissner was discharged for employment misconduct.
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Finally, Kissner argues that the ULJ erred by not obtaining testimony at the
hearing from someone she had identified as a potential witness. But Kissner agreed at the
hearing that the ULJ did not need to call the witness. Moreover, the witness’s testimony
was irrelevant to the ULJ’s decision. Kissner had intended to call the potential witness to
discuss Restore 24’s “blatant lie” that she had refused to perform one of her job duties.
She did not assert that the witness had any information regarding the voicemail or
Kissner’s three-day failure to report to work. Because the ULJ’s employment-
misconduct determination was based on Kissner’s failure to report to work—not on any
alleged refusal to perform her job duties—the ULJ did not err by not obtaining the
potential witness’s testimony.
Affirmed.
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