This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-883

 

Jessie L. Peterson,
Relator,

vs.

Landmark Community Bank,
Respondent,

Commissioner of Employment and Economic Development,
Respondent.

 

Filed April 6, 2004

Reversed and remanded

Peterson, Judge

 

Department of Employment and Economic Development

File No. 190403

 

 

Jessie L. Peterson, 960 Tower Circle, Cambridge, MN  55008-3713 (pro se relator)

 

Landmark Community Bank, P.O. Box 250, Isanti, MN  55040-0250 (respondent)

 

Lee B. Nelson, Philip B. Byrne, Department of Employment and Economic Development, 390 Robert Street North, St. Paul, MN  55101 (for respondent Commissioner of Employment and Economic Development)

 

            Considered and decided by Lansing, Presiding Judge; Peterson, Judge; and Forsberg, Judge.*

 

U N P U B L I S H E D   O P I N I O N

 

PETERSON, Judge

 

This appeal is from a decision by the representative of respondent Commissioner of Employment and Economic Development that relator Jessie L. Peterson is disqualified from receiving unemployment-compensation benefits because she was discharged by respondent Landmark Community Bank for employment misconduct.  Because the record was not left open for sufficient time to permit relator to respond to evidence submitted by the employer as required under Minn. R. 3310.2912 (2003), we reverse and remand.

FACTS

Relator was employed by Landmark Community Bank as a full-time teller.  Relator was discharged for repeated tardiness and absences.  She applied for unemployment benefits, and the Minnesota Department of Economic Security made an initial determination of nondisqualification.  The bank appealed, and an unemployment law judge (ULJ) conducted a telephone hearing.

During the hearing, Heidi Stavenger, an assistant vice president for the bank, testified as follows: relator’s duties usually required her to be at work around 7:45 a.m., except for Fridays when her schedule was sometimes changed; on December 17, 2003, Stavenger met with relator to discuss her tardiness and offered relator a later shift to alleviate any problems she was having getting to work on time; Stavenger stressed the importance that relator be dependable because she was an opening teller, and her tardiness and absences impacted other employees; relator declined the offer; on December 23, 2003, a customer and a co-worker complained to Stavenger that relator smelled of alcohol; relator left early that day after another employee came in to cover her shift; and relator was discharged the next day.

Stavenger also testified that she had reviewed relator’s payroll records and determined that there had not been a huge problem, but there had been a lot of instances of relator coming in late.  The ULJ responded that the employer’s appeal letter referred to timecard reports, but the ULJ had not received any of the reports.  Stavenger said that copies of the reports were all sent in and that she did not have the reports in front of her because they had been put back into a locked file.  The ULJ replied, “All right.  Without documentation this is extremely difficult because I don’t have precise dates and times that she has been late or to verify that she has been late or absent.” 

Relator admitted that she was late two to three times within a six-month period, but she testified it was not right that she was late at 7:45 because she sometimes had to wait in the parking lot for an opening officer to arrive and open the doors.  Relator also admitted that there were days that she missed, but she asserted that she used her allotted paid time off or called in to report her absences.  Relator testified that she had the flu on December 23, 2003, and that she had not been drinking the night before.  She also asserted that because she worked at the drive-up window, it was impossible for a customer to smell her breath.[1]

Before closing the hearing, the ULJ stated that she found it “almost impossible to make any type of decision based on the evidence that actually wasn’t presented here today.”  The ULJ left the record open until 4 p.m. on the day following the hearing to allow the employer to submit relator’s payroll records and statements from employees who were aware of relator’s absenteeism.  The employer submitted those exhibits.  The ULJ also allowed relator to submit any evidence about her whereabouts the night before she was discharged, but relator did not submit any evidence.

Timecard reports submitted by the employer indicate that relator arrived after 7:45 on numerous occasions during October, November, and the first half of December 2002. 

The employer also submitted letters from three employees.  One letter was from an employee who attended the December 17, 2002, meeting where Stavenger met with relator to discuss her tardiness.  The letter confirmed Stavenger’s testimony about the meeting.  The letter also stated that the employee saw relator at work on December 23 and could smell alcohol very strongly, and it was apparent that relator was hung over.  The letter from the second employee said that on two or more occasions since July 2002, the employee had to cover for relator when she was tardy.  The third letter said that the employee had one occasion since July 2002 when he had to cover for relator when she did not show up for work.

The ULJ reversed the department’s determination of nondisqualification and found that relator was discharged because of employment misconduct.  Relator appealed to the representative of the commissioner who determined that relator was discharged due to employment misconduct, thereby disqualifying her from receiving unemployment benefits. 

D E C I S I O N

Relator argues on appeal that Stavenger kept referring to relator’s time cards, but she never sent copies of the time cards to relator or the ULJ.  The record now contains timecard reports that were received by the department on the day after the hearing while the record was still open, but the ULJ did not have these records during the hearing.   There is no record that the employer provided relator with copies of the reports.

The rule governing telephone conferences in unemployment compensation proceedings provides:

If a party moves to introduce additional documents during the course of the hearing, and the referee rules that the documents should be admitted into evidence, the moving party shall send copies of the documents to the referee and the opposing party.  The record shall be left open for sufficient time for the submission of a written objection and for response to the documents.  The response may be in writing or the referee may, when appropriate, reconvene the telephone conference hearing to obtain a response or permit cross-examination regarding the late filed exhibits.

 

Minn. R. 3310.2912 (2003) (emphasis added). 

Under this rule, the employer was required to send copies of the documents to relator and the ULJ, and the ULJ was required to leave the record open to permit relator to respond to the documents.  See Minn. Stat. §§ 645.44, subd. 16 (stating “shall” is mandatory), 645.001 (2002) (applying provisions of chapter 645 to rules).  There is no record that the employer sent copies to relator, and the record demonstrates that the ULJ did not leave the record open to permit relator to respond to the employer’s evidence.

Because relator was not provided with copies of nor permitted to respond to the evidence submitted after the hearing, as required under Minn. R. 3310.2912, we reverse the decision of the commissioner’s representative and remand to permit the commissioner to remand the matter to a ULJ to permit relator to respond to the evidence submitted after the hearing and make new findings and a decision based on all the evidence.  See Minn. Stat. § 268.105, subd. 2(c) (2002) (granting commissioner authority upon review to “remand the matter back to an unemployment law judge for the taking of additional evidence and the making of new findings and decision based on all the evidence”).

Reversed and remanded.



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

[1] The commissioner asserts on appeal that an inference could be made that relator had an alcohol problem.  But Stavenger testified that there had been no prior complaints about relator reporting to work under the influence, and the commissioner’s representative made no such finding.