Nikita Seras-Nachole Cordes, Relator v. Heartland Midwest, LLC - Burger King, Department of Employment and Economic Development

This opinion will be unpublished and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
A15-0554
Nikita Seras-Nachole Cordes,
Relator,
vs.
Heartland Midwest, LLC - Burger King,
Respondent,
Department of Employment and Economic Development,
Respondent.
Filed December 14, 2015
Affirmed
Larkin, Judge
Department of Employment and Economic Development
File No. 32844455-4
Nikita Seras-Nachole Cordes, Forest Lake, Minnesota (pro se relator)
Heartland Midwest, LLC, St. Louis, Missouri (respondent)
Lee B. Nelson, Timothy C. Schepers, Minnesota Department of Employment and
Economic Development, St. Paul, Minnesota (for respondent department)
Considered and decided by Worke, Presiding Judge; Larkin, Judge; and Bjorkman,
Judge.
UNPUBLISHED OPINION
LARKIN, Judge
Relator challenges an unemployment-law judge’s (ULJ’s) decision that she is
ineligible for unemployment benefits. Because the ULJ’s decision is supported by
substantial evidence and relator has not established a basis to reverse, we affirm.
FACTS
Relator Nikita Seras-Nachole Cordes applied for unemployment benefits after
quitting her job as a shift manager for respondent Heartland Midwest LLC (Heartland),
an Illinois-based company that operates several Burger King restaurants in Minnesota.
Respondent Minnesota Department of Employment and Economic Development (DEED)
determined that Cordes was eligible to receive benefits. Heartland appealed. A ULJ held
a three-day telephonic evidentiary hearing regarding Cordes’s eligibility and found that
the relevant facts are as follows.
On July 27, 2014, Cordes was working as a shift manager at a Heartland restaurant
in north St. Paul when two employees made a comment about “cutting off a pickle.”
Cordes, a transgender woman, approached the employees, demanded to know what they
were talking about, and asked if they were making a joke about transgender persons. The
employees denied making such a joke.
On August 1, district manager Ed Davis informed Cordes that she was being
transferred to a restaurant on St. Paul’s eastside. The transfer had been planned for a few
weeks. The district manager told Cordes that the manager at the east St. Paul restaurant
was impressed with her performance and had requested the transfer. Cordes appeared
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pleased and did not object to the transfer. She worked her final shift at the north St. Paul
restaurant the next day.
On August 4, Cordes began working at the east St. Paul restaurant. That day, an
employee addressed Cordes as “sir” in a sarcastic manner, and Cordes warned the
employee not to engage in such conduct. Later, the employee refused to comply with a
work instruction from Cordes. On August 7, the employee was fired for insubordination
and discriminatory conduct.
On August 5, Cordes was the closing manager. She allowed Monty Fagnan, a
nonemployee, to be in the restaurant after hours and in an employee-only area, and she
failed to lock the restaurant at closing time. Heartland notified Cordes that she had
violated Heartland’s closing policies and gave her a disciplinary warning.
On August 12, Cordes called a Heartland hotline and left a message stating that
she had been sexually harassed at the north St. Paul restaurant, that she reported the
sexual harassment to her manager, and that nothing was done. Two days later, Davis met
with Cordes and asked her to describe her reported harassment. Cordes refused to
cooperate unless Fagnan was present. Cordes referred to Fagnan as her legal counsel, but
Fagnan is not a licensed attorney.1 Davis ended the meeting and contacted Heartland’s
human-resources department.
On August 18, representatives from the human-resources department attempted to
obtain information from Cordes by phone. Cordes refused to provide information unless
Fagnan was present. Afterward, human-resources director Kim Ervin called Cordes, and
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Fagnan testified that he is engaged to Cordes.
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Cordes stated that she would not participate in an investigation unless Fagnan was
involved. Ervin told Cordes that the investigation was internal and private and that
Fagnan was not allowed to participate. Cordes again refused to provide information.
After the phone call, Ervin sent Cordes a letter, inviting her to provide facts regarding her
reported harassment and to submit the information by mail, fax, or e-mail. Cordes did
not provide any additional information.
On the evening of August 18, Cordes was the closing manager. When she closed
the restaurant at 1:00 a.m., she left more than $3,500 unsecured in the cash drawers and
office safe. Cordes left a note claiming that she did not have time to inventory and secure
the cash because of a computer malfunction earlier in her shift and because she was
shorthanded. Heartland issued Cordes a disciplinary warning for her failure to secure the
cash.
Throughout the month of August, Michelle Martinez, the manager of the east
St. Paul restaurant, received several complaints that Cordes was intimidating and
bothering employees. Around August 20, Martinez observed that Cordes had connected
her personal computer notepad to a restaurant computer.
On August 22, Davis and Martinez met with Cordes. Ervin participated in the
meeting via phone. Davis and Martinez gave Cordes a written disciplinary warning,
directing her to stop bothering employees and connecting personal computer devices to
the restaurant computer. Shortly after the meeting, Cordes quit, claiming harassment
based on gender and sexual orientation and retaliation for complaining about
discrimination and harassment.
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The ULJ determined that Cordes quit her employment without a good reason
caused by Heartland, that she is ineligible to receive unemployment benefits, and that she
had been overpaid $910 in benefits. Cordes requested reconsideration. The ULJ
affirmed the determination. This certiorari appeal follows.
DECISION
On certiorari review of an eligibility determination, this court may reverse or
modify the ULJ’s decision
if the substantial rights of the petitioner may have been
prejudiced because the findings, inferences, 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 procedure; (4) affected
by other error of law; (5) unsupported by substantial evidence
in view of the entire record as submitted; or (6) arbitrary or
capricious.
Minn. Stat. § 268.105, subd. 7(d) (Supp. 2015). “We review de novo a ULJ’s
determination that an applicant is ineligible for unemployment benefits. And we review
findings of fact in the light most favorable to the ULJ’s decision and will rely on findings
that are substantially supported by the record.” Fay v. Dep’t of Emp’t & Econ. Dev., 860
N.W.2d 385, 387 (Minn. App. 2015) (quotation omitted).
I.
An applicant who quits employment is ineligible for unemployment benefits,
subject to certain exceptions. Minn. Stat. § 268.095, subd. 1 (2014). One such exception
is if “the applicant quit the employment because of a good reason caused by the
employer.” Id., subd. 1(1). A good reason to quit caused by an employer “is a reason:
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(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) (2014).
“If an applicant was subjected to adverse working conditions by the employer, the
applicant must complain to the employer and give the employer a reasonable opportunity
to correct the adverse working conditions before that may be considered a good reason
caused by the employer for quitting.” Id., subd. 3(c) (2014). “An applicant has a good
reason caused by the employer for quitting if it results from sexual harassment of which
the employer was aware . . . and the employer failed to take timely and appropriate
action.” Id., subd. 3(f) (2014).
“[T]he reason for an employee’s separation [from employment] is a factual
determination.” Embaby v. Dep’t of Jobs & Training, 397 N.W.2d 609, 611 (Minn. App.
1986). But whether that reason constitutes a good reason caused by the employer is a
legal question, which this court reviews de novo. Peppi v. Phyllis Wheatley Cmty. Ctr.,
614 N.W.2d 750, 752 (Minn. App. 2000).
The primary issue in this appeal is whether Cordes quit because of a good reason
caused by Heartland. In making that determination, the ULJ acknowledged Cordes’s
testimony that she quit because of discrimination, harassment, and retaliation. But the
ULJ concluded that Cordes, “by refusing to cooperate, hindered the investigation and did
not give [Heartland] a reasonable opportunity to investigate and take remedial action”
and that Heartland, “[t]o the extent possible, given [Cordes’s] refusal to cooperate, . . .
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took reasonable and timely action to respond to [Cordes’s] complaint.” The ULJ also
concluded that the record failed to establish retaliation.
Cordes contends that she quit because of “harassment from her peers” and
“supervisors.” She argues that record evidence contradicts the ULJ’s finding that no
“supervisory employee engaged personally in harassment or discrimination against
[Cordes] based on her protected class status.” She asserts that Davis, Martinez, Ervin,
and another store manager all “participated in the harassment.” Cordes does not provide
any citations to the record or otherwise identify record evidence that supports her
assertion.
In formal briefs, “[e]ach statement of a material fact shall be accompanied by a
reference to the record.” Minn. R. Civ. App. P. 128.02, subd. 1(c). Although Cordes
filed an informal brief, see Minn. R. Civ. App. P. 128.01, subd. 1 (permitting informal
briefs), this court generally holds pro se litigants to the same standards as attorneys and
requires that they comply with court rules. Fitzgerald v. Fitzgerald, 629 N.W.2d 115,
119 (Minn. App. 2001). We have reviewed the record without the benefit of citations to
the record, and we do not find evidence supporting Cordes’s claim that Heartland
supervisors harassed her or discriminated against her. However, our review of the record
satisfies us that substantial evidence supports the ULJ’s findings regarding the reported
harassment.
Given those findings, the ULJ did not err by concluding that Cordes did not quit
because of a good reason caused by Heartland. Although Cordes complained to
Heartland about alleged harassment and discrimination, she did not give Heartland a
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reasonable opportunity to correct those conditions. Instead, she refused to participate in
Heartland’s investigation. Heartland attempted to take timely and appropriate action,
interviewing Cordes and other employees about the allegations, but Cordes repeatedly
refused to provide information regarding her allegations. Under the circumstances, the
ULJ did not err by concluding that Cordes did not quit for a good reason caused by her
employer. See Minn. Stat. § 268.095, subd. 3(c).
II.
Cordes presents several additional arguments in support of reversal. Each is
addressed in turn, and none warrants reversal.
Credibility Findings
Cordes argues that the ULJ failed to make necessary credibility findings. “When
the credibility of a witness testifying in a hearing has a significant effect on the outcome
of a decision, the [ULJ] must set out the reason for crediting or discrediting that
testimony.” Minn. Stat. § 268.105, subd. 1a(a) (2014). This court gives deference to a
ULJ’s credibility determinations, Skarhus v. Davanni’s Inc., 721 N.W.2d 340, 344
(Minn. App. 2006), and will affirm if “[t]he ULJ’s findings are supported by substantial
evidence and provide the statutorily required reason for her credibility determination,”
Ywswf v. Teleplan Wireless Servs., Inc., 726 N.W.2d 525, 533-34 (Minn. App. 2007).
The ULJ determined that Cordes’s testimony was not credible. Cordes argues that
the ULJ’s reasons for discrediting her testimony “are vague at best and do not provide
enough to reasonably credit or discredit testimony.” However, the ULJ gave several fact-
specific reasons for his credibility determination. The ULJ stated that Cordes’s testimony
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(1) was inconsistent with Heartland’s policy against permitting nonemployees in the
restaurant after hours, (2) was inconsistent with security video that showed that Cordes
did not lock the restaurant doors, (3) was contradicted by Martinez’s testimony that she
did not authorize Cordes to allow a nonemployee in the restaurant after hours, and
(4) was contradicted by Martinez’s testimony that Cordes admitted to the violations when
she received a disciplinary warning. Cordes does not argue that those reasons are
inadequately supported by the record evidence.
Because the ULJ provided adequate reasons for discrediting Cordes’s testimony,
we do not disturb the ULJ’s credibility determination. See id. at 533 (rejecting argument
that ULJ’s credibility determination was lacking because “[t]he ULJ’s findings [were]
supported by substantial evidence and provide[d] the statutorily required reason for her
credibility determination”).
Hearsay Evidence
Cordes complains that the ULJ “allowed third-party statements of ‘employee[s]’
produced by Heartland Midwest LLC into evidence, despite [her] protest that she could
not cross-examine the supposed writers of the documentation nor inquire as [to] the
validity of the statements.”
Cordes does not identify the specific statements that she asserts the ULJ should
have excluded. But at the evidentiary hearing, Cordes objected to written statements
from employees at the east St. Paul restaurant. Cordes stated, “In regards to the
statements[,] these people are not present so I really don’t have an opportunity to cross
examine them. So I’m just wondering how can I attest to the validity of these documents
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without the people here.” The ULJ overruled Cordes’s objection, stating, “Hearsay is
admissible in these hearings. I will consider that these statements from the employees are
hearsay, but I’m [going to] . . . let that go to the weight that I give them rather than their
admissibility.”
A ULJ “may receive any evidence that possesses probative value, including
hearsay, if it is the type of evidence on which reasonable, prudent persons are accustomed
to rely in the conduct of their serious affairs.” Minn. R. 3310.2922 (2013). Because the
employees did not testify at the evidentiary hearing, their statements are hearsay. See
Minn. R. Evid. 801(c) (defining “hearsay” as “a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove the truth of
the matter asserted”). However, the statements are signed and dated by the declarants
and are the type of evidence on which reasonable persons would customarily rely. See,
e.g., Jenkins v. Am. Express Fin. Corp., 721 N.W.2d 286, 288 n.1 (Minn. 2006)
(incorporating facts from letter written by third-party who did not testify at administrative
hearing despite hearsay-status of letter). The ULJ therefore did not err by receiving the
statements.
Cordes’s Evidence
Cordes assigns error to the ULJ’s treatment of her testimony, evidence, and
witnesses. She contends that the ULJ “did not give [her] the same opportunity as
[Heartland] when presenting testimony” and did not consider, refer to, or rule on all the
evidence she presented.
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“A hearing to determine qualification for unemployment benefits is an evidence-
gathering inquiry.” Vasseei v. Schmitty & Sons Sch. Buses Inc., 793 N.W.2d 747, 750
(Minn. App. 2010). A ULJ must “ensure that all relevant facts are clearly and fully
developed.” Minn. R. 3310.2921 (2013). A ULJ “may only use reliable, probative, and
substantial evidence as a basis for decision.” Minn. R. 3310.2922. “All competent,
relevant, and material evidence, including records and documents in the possession of the
parties that are offered into evidence, are part of the hearing record.” Id. A ULJ “may
exclude any evidence that is irrelevant, immaterial, unreliable, or unduly repetitious.” Id.Likewise, a ULJ “may limit repetitious testimony and arguments.” Minn. R. 3310.2921.
Many of Cordes’s arguments are unavailing under the administrative rules. The
ULJ was not required to give Cordes and Heartland equal time to present testimony or
evidence; nor was the ULJ required to consider all of Cordes’s evidence. Rather, the
ULJ’s duty was to develop all relevant facts and make a decision based on the reliable,
probative, and substantial evidence. See Minn. R. 3310.2921-.2922.
The only issue in Heartland’s appeal of DEED’s eligibility determination was
whether Cordes quit because of a good reason caused by Heartland. A review of the
record, including the transcript of the evidentiary hearing, does not indicate that the ULJ
unfairly limited Cordes’s presentation of her case or restricted her from offering evidence
regarding that issue. The ULJ occasionally interrupted Cordes, overruled her objections,
and precluded her from presenting certain testimony or evidence, but the record shows
that the ULJ was attempting to keep the three-day hearing focused on the relevant issue.
As the ULJ stated, “[s]ome testimony was excluded because it was not relevant to
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[Cordes’s] claims of discrimination, harassment, and retaliation, or it was tangential,
repetitive, or unlikely to affect the outcome of the appeal.” Moreover, Cordes had
substantial opportunities to cross-examine witnesses and testify, in addition to giving a
closing statement. Indeed, Cordes cross-examined all of Heartland’s witnesses.
Cordes complains that Fagnan was not allowed to testify, even though Heartland’s
witnesses “were allowed ample opportunity to give their entire narrative.” The record
belies that claim. Fagnan told the ULJ that, although he had not worked for Heartland,
Cordes “only worked a few shifts where [he] wasn’t present, either in the parking lot or
in one of the stores.” When the ULJ asked Cordes if she had any testimony from Fagnan,
she replied, “If you have any questions for Mr. Fagnan he’d be more than happy to
answer them. As for whether or not he has anything he’d like to add I can’t speak for
him on that matter, that’s up to him.” The ULJ gave Fagnan an opportunity to speak but
quickly stopped him after he began discussing his “long, long history” with district
manager Ed Davis, his ex-girlfriend, and her sister. After the ULJ redirected Fagnan,
Fagnan discussed his work history and alleged that he observed food-safety issues at one
of Heartland’s restaurants. The ULJ noted that Cordes quit because of harassment and
retaliation, not food-safety issues, and Fagnan stated, “I guess my testimony was done.
I’ll send you back over to [Cordes].”
Cordes also complains that the ULJ failed to determine whether Heartland violated
various federal and state statutes, including 42 U.S.C. § 2000e-3(a) (2012) (Title VII of
the Civil Rights Act of 1964), Minn. Stat. § 177.253 (2014) (mandatory work breaks),
Minn. Stat. § 181.961 (2014) (review of personnel record by employee), and Minn. Stat.
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§§ 363A.01-.44 (2014) (Minnesota Human Rights Act). But the dispositive issue was
whether Cordes gave Heartland a reasonable opportunity to correct adverse working
conditions. Thus, the ULJ’s failure to determine whether Heartland violated the specific
statutes does not prejudice Cordes’s substantial rights.
In sum, our review of the record satisfies us that the ULJ’s decision was made
upon lawful procedure and Cordes’s substantial rights were not prejudiced. See Minn.
Stat. § 268.105, subd. 7(d).
Subpoena Request
Cordes complains that the ULJ “fail[ed] to grant access to key witnesses.” We
construe this argument as an assertion that the ULJ erred by denying Cordes’s subpoena
requests. A ULJ “may issue subpoenas to compel the attendance of witnesses . . . upon a
showing of necessity by the requesting party.” Minn. R. 3310.2914, subp. 1 (2014). “A
request for a subpoena may be denied if the testimony or documents sought would be
irrelevant, immaterial, or unduly cumulative or repetitious.” Id.; see also Minn. R.
3310.2921 (providing that a ULJ “may limit repetitious testimony and arguments”).
Whether to issue a subpoena rests within the ULJ’s sound discretion, and this court “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).
During the evidentiary hearing, Cordes requested that the ULJ subpoena two
Heartland employees, Bev Trombly and Wendy Matheson. Cordes stated that Trombly
was the district manager of the east St. Paul restaurant when she started working there
and that Matheson made Davis the district manager of the east St. Paul restaurant after
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Cordes made her harassment complaint. Cordes stated that she contacted Trombly to
obtain the employee hotline number and that Trombly told her that someone from the
human-resources department would contact her. Cordes added that she “briefly touched
on” her harassment complaint with Trombly but “wanted to save it mostly for the human
resources department.” Cordes also stated that she wanted to ask Matheson about “her
reasoning behind [Davis’s assignment] as well as ask her several other questions in
regards to the changing of districts.” The ULJ denied both of Cordes’s subpoena requests
because both Trombly and Matheson “were involved marginally if at all, and their
testimony would have been duplicative and unlikely to affect the outcome of the
hearing.”
Based on Cordes’s statements, neither Trombly’s nor Matheson’s testimony was
necessary to the ULJ’s ultimate decision. Once again, the issue was whether Cordes quit
her employment for a good reason caused by Heartland. Trombly reportedly gave Cordes
the hotline number and told her that the human-resources department would be contacting
her. Matheson reportedly facilitated a change among the district managers. Trombly’s
and Matheson’s reported involvement in the circumstances giving rise to Cordes’s
benefits claim is minimal and inconsequential. Because their testimony would have been
irrelevant and immaterial, the ULJ did not abuse his discretion by denying Cordes’s
subpoena requests.
Reconsideration Request
Cordes contends that the ULJ erred by denying her request for reconsideration,
arguing that the ULJ should have granted her request and held another hearing “to receive
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relevant evidence.”
“In 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.” Minn. Stat. § 268.105, subd. 2(c)
(2014).
The unemployment law judge must order an additional
hearing if a party shows that evidence which was not
submitted at the hearing:
(1) would likely change the outcome of the
decision and there was good cause for not having previously
submitted that evidence; or
(2) would 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.
Id. “This court 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).
The ULJ denied Cordes’s reconsideration request, determining “the findings of
fact and decision to be supported by the evidence and the law.” The ULJ noted that
Cordes had submitted “a lengthy written argument and 157 pages of additional
documents” in support of reconsideration but concluded that the evidence “was available
at the time of the appeal hearing” and that Cordes had “not shown good cause for not
submitting the evidence in the appeal hearing.” The ULJ added that “the additional
information offered on reconsideration would not be likely to change [the] outcome of
the appeal.”
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Cordes argues that the ULJ erred by not considering her “persuasive, newly
discovered evidence.” Cordes describes the evidence that she submitted with her
reconsideration request, but she does not explain why the evidence would have changed
the outcome. Nor does she explain how her new evidence shows that evidence submitted
at the initial hearing is likely false or how that likely false evidence affected the outcome.
Lastly, she does not assert that she had good cause for not submitting the evidence at the
initial hearing. For those reasons, Cordes’s argument that the ULJ erred by denying her
request for reconsideration is unavailing.
In conclusion, the ULJ did not err by determining that Cordes is ineligible for
benefits, and Cordes has not established a basis for relief on appeal. We therefore affirm.
Affirmed.
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