This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






Cynthia D. Washington,





Thomas Allen, Inc.,



Commissioner of Economic Security,



Filed April 15, 2003

Reversed and Remanded

Kalitowski, Judge


Department of Economic Security

File No. 1218701


James Laurence, Law Offices of Southern Minnesota Regional Legal Services, Inc., 16174 Main Avenue, Prior Lake, MN 55372; and


Charles H. Thomas, 12 Civic Center Plaza, Suite 3000, P.O. Box 3304, Mankato, MN 56002-3304 (for relator)


Thomas Allen, Inc., 2313 South Skyline Drive, Burnsville, MN 55337 (respondent)


Linda A. Holmes, Katherine H. Karsh, Laura Maupin (pro hac vice), Department of Economic Security, 390 North Robert Street, St. Paul, MN 55101 (for respondent Commissioner of Economic Security)


            Considered and decided by Kalitowski, Presiding Judge, Hudson, Judge, and Poritsky, Judge.*

U N P U B L I S H E D   O P I N I O N


            Relator Cynthia D. Washington challenges the commissioner’s representative’s denial of unemployment benefits arguing that (1) the evidentiary hearing was conducted improperly; and (2) there was insufficient evidence to support the conclusion that relator engaged in aggravated employment misconduct.  Because we conclude that the cumulative effect of errors at relator’s evidentiary hearing resulted in the denial of relator’s right to a fair hearing, we reverse and remand for a new evidentiary hearing.



            On appeal, a reviewing court must examine the decision of the commissioner’s representative, rather than that of the unemployment law judge.  Kalberg v. Park & Recreation Bd., 563 N.W.2d 275, 276 (Minn. App. 1997).  Further, decisions of the commissioner’s representative are accorded particular deference.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  While this court defers to the commissioner’s findings of fact if the evidence in the record reasonably supports them, the court exercises its independent judgment with respect to questions of law.  Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).

            From August 1999 until August 30, 2001, relator worked as a program counselor and coordinator for Thomas Allen, Inc. (employer), a private social services agency, providing group home living and services to developmentally disabled adults.  On August 30, 2001, employer gave relator a notice of termination, which she signed to acknowledge receipt.  According to the notice of termination, employer received information from other employees that relator left clients in the company vehicle unattended on several occasions while relator went into stores, violating the Vulnerable Adult Act and employer’s policy.

Relator argues that the unemployment law judge committed several errors at the evidentiary hearing, including:  (1) allowing employer to base its entire case on unreliable hearsay evidence; (2) failing to ensure that the facts were fully and clearly developed; and (3) failing to assist relator in presenting evidence.  We conclude that the cumulative effect of the errors constitutes reversible error.  Cf. State v. Underwood, 281 N.W.2d 337, 344 (Minn. 1979) (in case with substantial conflicting testimony and difficult factual determinations, cumulative errors may require reversal).

The sole witness for employer at the evidentiary hearing, a human resources manager, had no direct knowledge of the incidents that were alleged to constitute misconduct.  Rather, hearsay evidence was received by the unemployment law judge consisting of accusations against relator from two employees, as summarized by the employer’s human resources manager.  A seasonal employee, who is unidentified because neither the human resources manager nor relator could recall her name, allegedly reported that she heard relator and another employee, Ellis, speak openly about leaving clients unattended in the company van.  The unidentified seasonal employee also told the human resources manager that she saw relator smoking in the company van in the presence of clients.  Another employee, Fitzgibbons, reported that Ellis told her that relator and Ellis frequently left clients unattended in the van.  Relator denied these allegations.

Relator acknowledges that the Minnesota Rules allow the admission of hearsay evidence in economic security proceedings.  Minn. R. 3310.2922 (2001).  But relator argues that, regardless of the type of evidence admitted, the evidence must still be “reliable, probative, and substantial” according to Minn. R. 3310.2922, and that:  (1) the evidence relied on in this matter was not reliable; and (2) relator was denied any right to reasonably confront or cross-examine her accusers.  We agree.

The only evidence relied on by the commissioner’s representative in concluding that relator committed aggravated misconduct was the hearsay statements of two witnesses who were not present at the hearing:  the unidentified seasonal employee and Fitzgibbons.  The employer’s sole witness was unable to even recall the name of the employee who allegedly relayed the most damaging information about relator’s conduct.  And the report of Fitzgibbons was only that Ellis told her that Ellis and relator left clients unattended.  Thus, Fitzgibbons never personally saw relator leave clients unattended.  We conclude that the hearsay evidence here lacked sufficient indicia of reliability and unfairly prejudiced relator.  

Relator also argues that the unemployment law judge failed to properly develop the facts.  Under Minnesota law, the unemployment law judge is obligated to “ensure that relevant facts are clearly and fully developed.”  Minn. R. 3310.2921 (2001).  The human resources manager testified that:  (1) she and another manager conducted an internal investigation after receiving the reports from the two employees regarding relator’s alleged misconduct; (2) the notes from the interviews they conducted were not part of the record because the other manager was on maternity leave; (3) she could not locate the notes; and (4) she did not attempt to contact the other manager regarding the whereabouts of the notes.  Under Minnesota Rules, records and documents in the possession of the parties “shall be part of the hearing record.”  Minn. R. 3310.2922.  Because the interview notes were critical documentary evidence in the possession and control of the employer, the unemployment law judge should have required the employer to produce the notes.

The unemployment law judge also has a duty to “assist unrepresented parties in the presentation of evidence.”  Minn. R. 3310.2921.  One witness accompanied relator at the hearing, but the unemployment law judge refused to allow him to testify.  Moreover, the judge refused to accept the exhibits offered by relator at the hearing, including two letters and an achievement certificate she received from employer.  But the judge went over all of the employer’s exhibits and marked each of them for the record, including one exhibit that the judge decided not to accept into evidence.  Because the unemployment law judge excluded both the testimony and the documents presented by relator, appellate review of relator’s evidence was impossible.  While these actions standing alone may have been within the discretion of the judge, they added to relator’s perception that she was not afforded a fair hearing. 

In conclusion, (1) the evidence employer presented at the hearing was primarily unreliable hearsay; (2) key documentary evidence in the possession of employer was not made part of the record; and (3) the unemployment law judge summarily excluded all of pro se relator’s evidence.  Thus, relator is entitled to a new evidentiary hearing before the unemployment law judge.

            Finally, relator also argues that the conclusion of the commissioner’s representative that relator committed aggravated employment misconduct, rather than mere misconduct, is not supported by substantial evidence and was not properly before the commissioner’s representative because it was not presented to the unemployment law judge.  Because, as discussed above, we conclude that relator is entitled to a new evidentiary hearing, we do not reach these issues.

Reversed and remanded.


*  Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.