Tonya Johnson v. Asbestos Workers Union No. 34, Relator, Department of Employment and Economic Development ( 2014 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2012).
STATE OF MINNESOTA
IN COURT OF APPEALS
A14-0052
Tonya Johnson,
Respondent,
vs.
Asbestos Workers Union No. 34,
Relator,
Department of Employment and Economic Development,
Respondent.
Filed September 2, 2014
Affirmed
Chutich, Judge
Department of Employment and Economic Development
File No. 31564637-3
Brian R. Christiansen, KrisAnn R. Norby-Jahner, Hellmuth & Johnson, Edina, Minnesota
(for respondent)
Brendan D. Cummins, Cummins & Cummins, LLP, Minneapolis, Minnesota (for relator)
Lee B. Nelson, Munazza Humayun, St. Paul, Minnesota (for respondent department)
Considered and decided by Halbrooks, Presiding Judge; Chutich, Judge; and
Klaphake, Judge.

Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
UNPUBLISHED OPINION
CHUTICH, Judge
Relator Asbestos Workers Union No. 34 (the Union) challenges the
unemployment-law judge’s decision that respondent Tonya Johnson is eligible for
unemployment benefits because she was not discharged for employment misconduct.
The Union contends that the evidence does not support the factual findings and that the
unemployment-law judge should have issued a subpoena and ordered an additional
hearing. Because substantial evidence supports the findings and the unemployment-law
judge acted within her discretion, we affirm.
FACTS
In January 2009, respondent Tonya Johnson began working for the Union as an
administrative assistant. In July 2012, Johnson called the Union and told Keith
Christopherson, the business manager, that her air-conditioning unit was broken and that
she needed to take the day off to get it repaired. Christopherson told Johnson that he
would contact a contractor that he knew to look at the unit as a favor.
Johnson’s husband met the union contractor at the house. The contractor did not
tell Johnson’s husband that he would be charging for the visit. The contractor told him
that the Johnsons were “friend[s] of the owners,” which Johnson and her husband
understood to mean that they would not be charged. Johnson and her husband ultimately
paid a different company to fix the unit.
At the Union, Christopherson opened a bill for the air-conditioning service that
was mailed to the Union. He paid the $422 bill using his Union credit card, and he did
2
not tell Johnson about the bill. Johnson and her husband did not see any bills or invoices
from the contractor, and they did not know that Christopherson used Union funds to pay
for the service.
In August 2012, Johnson told Christopherson that she had been charged with
shoplifting and that she was upset with her attorney. Christopherson recommended a
different attorney, Thomas Sieben, and spoke with Sieben about representing Johnson.
Christopherson offered to pay for Sieben’s attorney fees. Johnson accepted,
understanding his offer to mean that he would pay with his personal money. She
believed that Christopherson was paying with his own money because he was her friend,
he wanted to help, and he could afford it.
Christopherson told Sieben that he was paying for the representation and directed
Sieben to send any billing and payment information to him. Christopherson falsified
documents to receive funds from the Union, which he used to pay the attorney fees. He
hand-delivered two checks totaling $6,000 to Sieben’s office, and he left the checks with
the receptionist. Christopherson did not tell Johnson that he used Union money to pay
her attorney fees.
In June 2013, the Union discovered that Christopherson had misappropriated
approximately $40,000 of the Union’s funds. Johnson also learned about
Christopherson’s wrongdoings at that time.
Johnson continued to work for the Union until August 26, 2013. The Union then
terminated Johnson’s employment because it thought that Johnson knew of and
benefitted from Christopherson’s misappropriation.
3
Johnson unsuccessfully applied for unemployment benefits from respondent
Department of Employment and Economic Development (department). Johnson
appealed the department’s determination that she was ineligible for benefits. In
September 2013, the unemployment-law judge conducted an evidentiary hearing by
telephone. Johnson testified and was represented by counsel; Keith Christopherson and
Johnson’s husband testified on her behalf. The Union was represented by counsel, and
the new business manager and financial secretary testified on the Union’s behalf.
Sam Schultz, who replaced Christopherson as the Union’s business manager,
testified that the only reason that Johnson was discharged was because she knew that
Union funds were improperly used to pay for personal repairs to her air-conditioning unit
and for her attorney. Schultz assumed that Johnson knew about the payments because
(1) the contractor’s paid invoice, showing that the Union’s credit card was used, listed
Johnson’s home address after “bill to” and “ship to” and (2) Johnson and Christopherson
“were always together” and “were pretty good friends.”
On October 7, 2013, the unemployment-law judge determined that Johnson’s
employment was not terminated because of employment misconduct. She credited
Johnson and Christopherson’s testimony that Johnson did not know about
Christopherson’s misappropriation of Union funds. The unemployment-law judge held
that, because Johnson was unaware that Christopherson used the Union funds, Johnson
did not commit employment misconduct. The Union requested reconsideration, and the
unemployment-law judge affirmed her decision. This petition for a writ of certiorari
followed.
4
DECISION
We review de novo an unemployment-law judge’s determination that an applicant
is ineligible to receive unemployment benefits. Stassen v. Lone Mountain Truck Leasing,
L.L.C., 814 N.W.2d 25, 30 (Minn. App. 2012). We may affirm the unemployment-law
judge’s decision, remand it 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 affected by error of law or are “unsupported by substantial
evidence in view of the entire record as submitted.” Minn. Stat. § 268.105, subd. 7(d)
(2012).
An employee discharged because of employment misconduct is ineligible for
unemployment benefits. Minn. Stat. § 268.095, subd. 4(1) (2012). “Employment
misconduct means any intentional, negligent, or indifferent conduct, on the job or off the
job 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) (2012).
The purpose of chapter 268 is to assist those “who are unemployed through no
fault of their own.” Minn. Stat. § 268.03, subd. 1 (2012). The “chapter is remedial in
nature and must be applied in favor of awarding unemployment benefits,” and any
provision precluding receipt of benefits must be narrowly construed. Minn. Stat.
§ 268.031, subd. 2 (2012).
5
I. Substantial Evidence
The Union asserts that the unemployment-law judge’s decision that Johnson did
not commit employment misconduct is unsupported by substantial evidence in the record.
Whether an employee committed a certain act is a question of fact. Lawrence v. Ratzlaff
Motor Express Inc., 785 N.W.2d 819, 822 (Minn. App. 2010), review denied (Minn.
Sept. 29, 2010). We review factual findings in the light most favorable to the decision,
and we defer to the unemployment-law judge’s credibility determinations. Id. Factual
findings “will not be disturbed when the evidence substantially sustains them.” Id. We
review de novo “[w]hether a particular act constitutes disqualifying misconduct.”
Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).
The record substantially supports the unemployment-law judge’s determination
that Johnson did not know that Christopherson paid her criminal attorney or paid the
contractor with Union money. Johnson testified that she believed Christopherson was
paying for the attorney with his own money and that she was not aware of any payment
to the contractor for the air-conditioning service. Christopherson also testified that he did
not tell Johnson that he used Union funds to pay.
The Union has not presented evidence to the contrary. Instead, the Union argues
that alleged contradictory testimony during the hearing shows that Johnson was not
credible and that no reasonable fact-finder would believe Christopherson, given his
admitted actions in misappropriating Union funds. The unemployment-law judge
rejected these arguments on reconsideration, and we agree. When viewing the testimony
as a whole, it is not contradictory. Rather, Johnson consistently testified that she was
6
unaware that Christopherson paid for the services with Union funds, that she did not read
Sieben’s retainer agreement, and that she did not see an invoice from the contractor.
Sieben’s conduct and whether the payment was a gift or a loan are irrelevant to Johnson’s
knowledge of the misappropriations.
The unemployment-law judge held that “Johnson’s testimony was credible
because it was based upon firsthand knowledge, was consistent, and was supported by
Christopherson’s testimony.” And, despite Christopherson’s admissions of
misappropriating the Union’s funds, the unemployment-law judge decided that
“Christopherson’s testimony that Johnson did not know about his misappropriation was
credible” because only a “small portion” of the funds he misappropriated benefitted
Johnson and it was “in Christopherson’s best interest not to let Johnson or anyone else
know of his misappropriation.” In the reconsideration order, the judge held that
Christopherson’s past false statements “[do] not show that his testimony was false in the
hearing” and that the Union failed to show otherwise.
Because the unemployment-law judge’s findings are supported by substantial
evidence, and because the judge provided reasons for her credibility determinations, we
defer to her decision to credit Johnson and Christopherson’s testimony. See Ywswf v.
Teleplan Wireless Servs., Inc., 726 N.W.2d 525, 533 (Minn. App. 2007). We therefore
uphold the determination that Johnson is eligible for benefits because she was not
discharged for employment misconduct.
7
II. Subpoena Request
The Union contends that it was reversible error to deny its subpoena request
because the requested documents “could and will likely show” that Sieben agreed to be
paid with funds from the Union. The decision whether to issue a subpoena is within an
unemployment-law judge’s “sound discretion,” and “we will not reverse the decision
absent an abuse of discretion.” Icenhower v. Total Auto., Inc., 845 N.W.2d 849, 853
(Minn. App. 2014), review denied (Minn. July 15, 2014).
“Subpoenas are available to a party to compel . . . the production of documents or
other exhibits upon a showing of necessity by the party applying for subpoenas.” Minn.
R. 3310.2914, subp. 1 (2013). “A request for a subpoena may be denied if the testimony
or documents sought would be irrelevant, immaterial, or unduly cumulative or
repetitious.” Id.
The unemployment-law judge acted within her discretion in denying the Union’s
subpoena request. Shortly before the evidentiary hearing, the Union requested that a
subpoena be served on Sieben for “[a]ny and all fee agreements and representational
agreements referring or relating to the representation of Tonya Johnson” and “[a]ny and
all bills and invoices” for such representation. The unemployment-law judge waited to
rule on the request until the end of the hearing. After hearing all of the testimony, the
judge denied the request.
Both Johnson and Christopherson testified that Johnson did not read the retainer
agreement, and the unemployment-law judge credited their testimony. No evidence
shows that Johnson saw any invoices or bills from Sieben. The Union has not shown that
8
production of the agreement or invoices would prove that Johnson knew that
Christopherson paid for her attorney fees with Union funds. Upon this record, we cannot
say that the unemployment-law judge abused her discretion in denying the request for a
subpoena.
III. New Evidence
Lastly, the Union claims that the unemployment-law judge should have ordered an
additional hearing because it presented evidence of the air-conditioning contractor’s
standard billing practices. We defer to an unemployment-law judge’s decision whether
to grant a hearing and will reverse that decision only if the unemployment-law judge
abused its discretion. Vasseei v. Schmitty & Sons Sch. Buses Inc., 793 N.W.2d 747, 750
(Minn. App. 2010).
When 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.” 2014 Minn. Laws ch. 251, art. 2,
§ 16 (amending Minn. Stat. § 268.105, subd. 2 (2012)). The judge “must order an
additional hearing if a party shows that evidence which was not submitted at the hearing
. . . would likely change the outcome of the decision and there was good cause for not
having previously submitted that evidence.” Id.
Here, the new evidence describes the contractor’s standard practice for shipping
paid invoices, but it does not show that the invoice listing Johnson’s home address was
actually mailed to her home address. And even if the invoice was mailed to Johnson’s
home, the unemployment-law judge credited Johnson’s testimony that she did not see any
9
invoices. We conclude that the unemployment-law judge acted within her discretion
when the judge found that the proposed evidence would not have changed the outcome of
the decision.
Affirmed.
10