This opinion will be unpublished and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

A03-1084

 

Yei M. Hall,

Respondent,

 

vs.

 

Masterson Personnel, Inc.,

Relator,

 

Commissioner of Employment and

Economic Development,

Respondent.

 

Filed April 27, 2004

Affirmed

Stoneburner, Judge

 

Department of Employment and Economic Development

File No. 1815 03

 

Yei M. Hall, 5849 73rd Avenue North, #224, Brooklyn Park, MN 55429-6148 (pro se respondent)

 

T. Michael Kilbury, Peterson, Logren & Kilbury, P.A., 250 Wright Building, 2233 University Avenue West, St. Paul, MN  55114-1629 (for relator)

 

Lee B. Nelson, M. Kate Chaffee, Department of Employment and Economic Development, 390 Robert Street North, St. Paul, MN 55101 (for respondent commissioner)

 

            Considered and decided by Stoneburner, Presiding Judge; Hudson, Judge; and Crippen, Judge.*

 

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            Relator Masterson Personnel, Inc. challenges the decision of respondent Commissioner of Employment and Economic Development that respondent Yei M. Hall is entitled to unemployment compensation benefits, arguing that there is no support in the record for the commissioner’s representative’s findings and conclusions, and that Hall was discharged for misconduct.  We affirm.

FACTS

 

            Respondent Yei Hall was employed by relator Masterson Personnel, Inc., a temporary-staffing service.  Hall had numerous assignments with various clients and completed some assignments successfully.  At times, however, she became belligerent and argumentative with personnel at the assignments and at relator’s office.  A number of clients removed Hall from her assignment and requested that she not return. 

            Relator counseled Hall about her inappropriate behavior, and discharged her on several occasions, but rehired her.  The final discharge occurred after a client terminated Hall’s assignment because she was talking to herself and talking to a coat rack.

After one of her discharges, Hall filed a claim for unemployment benefits.  A department adjudicator determined that Hall was discharged for misconduct and denied benefits.  Hall appealed.

            Hall’s responses at the hearing before the unemployment law judge prompted the ULJ to inquire about her mental health.  Hall testified that she suffers from a mental illness.  The ULJ asked Hall if she would be willing to provide a statement from her physician or psychiatrist.  Hall agreed.  The ULJ offered to continue the hearing so that relator could review and respond to the doctor’s statement and raise objections to it.  But relator’s representative waived this opportunity.  The ULJ held the record open to allow Hall to obtain a statement from her physician, which was submitted by the physician directly to the ULJ.  The report stated that Hall is diagnosed with schizophrenia, paranoid type, the symptoms of which, at times, impact her functioning.  The ULJ determined that Hall was discharged for reasons other than employment misconduct and that she was qualified to receive unemployment benefits.  Relator appealed.  The commissioner’s representative affirmed.  This certiorari appeal followed.

            When the commissioner sent the record to this court, Hall’s physician’s statement was inadvertently omitted.  On discovering the oversight, the commissioner provided the document to this court and to relator by mail.  Relator, by letter, objected to the commissioner’s “supplementation” of the record, and argued that the physician’s letter is not part of the record.

 

D E C I S I O N

 

            We must first determine whether the letter from Hall’s physician is part of the record.  Relator concedes that the ULJ held the record open for submission of a report from Hall’s doctor but argues there is no evidence that any such report was offered or received.  But the ULJ’s decision states that observation and testimony of Hall “in conjunction with the statement from [Hall’s] physician” were sufficient to establish that the conduct that led to Hall’s discharge was caused by her mental illness.  This statement shows that the ULJ received and considered a statement from Hall’s physician.  The commissioner’s representative’s decision also refers extensively to the physician’s letter, demonstrating clearly that the commissioner’s representative reviewed and considered the physician’s statement.

            The ULJ is required to conduct the evidentiary hearing as an evidence-gathering inquiry and not as an adversarial proceeding.  Minn. Stat. § 268.105, subd. 1(b) (2002). Relator argues that the commissioner did not comply with the commissioner’s rule requiring that documentary evidence be received into the record.  The administrative rule governing receipt of evidence provides:

                        Only evidence received into the record of any hearing may be considered by the referee.  The parties may stipulate to the existence of any fact or the authenticity of any exhibit.

 

                        All competent, relevant, and material evidence, including records and documents in the possession of the parties which are offered into evidence, shall be part of the hearing record.  A referee may receive any evidence which 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.  A referee may exclude any evidence which is irrelevant, immaterial, unreliable, or unduly repetitious.  A referee shall not be bound by statutory and common law rules of evidence.  The rules of evidence may be used as a guide in a determination of the quality and priority of evidence offered.  A referee may draw adverse inferences from the refusal of a party or witness to testify on the basis of any privilege.  A referee shall only use reliable, probative, and substantial evidence as a basis for decision.

 

Minn. R. 3310.2922 (2003).  If the referee allows a party to submit additional documents during the course of the hearing, the documents are to be provided to the referee and the opposing party and the record is left open to allow objection and response from the opposing party.  Minn. R. 3310.2912.

            We conclude that the wide discretion to receive evidence allowed by the rule gave the ULJ in this case authority to solicit information regarding Hall’s mental health.  The ULJ properly offered to continue the hearing to allow a response and objection from relator, but relator’s agent waived the requirements for admission of the additional evidence requested by declining the ULJ’s offer to continue the hearing and agreeing to the ULJ’s consideration of the physician’s report without prior review or opportunity to object by relator.  And, under Minn. R. Civ. App. P. 110.05, the commissioner was authorized to correct the omission in the record caused by inadvertent failure to forward the physician’s statement with the originally transmitted record. 

            This court also has authority to correct the omission in the record.  Under Minn. R. Civ. App. P. 110.05, an appellate court may consider documents that were filed and provided to the trial court but not placed in the trial court file by the court administrator due to a filing technicality.  Stanek v. API, Inc., 474 N.W.2d 829, 832 (Minn. App. 1991), review denied (Minn. Oct. 31, 1991), cert. denied, 503 U.S. 977 (1992).  We conclude that the physician’s report is properly considered part of the record on appeal.

            We now turn to the merits.  The factual findings by the commissioner’s representative will be reviewed “in the light most favorable to the commissioner’s decision and will not [be disturbed] as long as there is evidence that reasonably tends to sustain those findings.”  Schmidgall v. Filmtec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  “Whether a particular act constitutes disqualifying misconduct is a question of law, which this court reviews de novo.”  Id.  On certiorari appeals, this court will review the findings by the commissioner’s representative, rather than the findings by the ULJ.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).

            Employment misconduct is defined as:

                        (1)       any intentional conduct, on the job or off the job, that disregards the standards of behavior that an employer has the right to expect of the employee or disregards the employee’s duties and obligations to the employer; or

                        (2)       negligent or indifferent conduct, on the job or off the job, that demonstrates a substantial lack of concern for the employment.

 

Minn. Stat. § 268.095, subd. 6(a) (2002).  The supreme court, interpreting the statute, stated that “[f]or the conduct to be intentional, it must be deliberate.”  Houston v. Int’l Data Transfer Corp., 645 N.W.2d 144, 149 (Minn. 2002).  The court, in interpreting the word “disregards,” stated that

[t]here must be a sufficient showing in the record that the employee not only engaged in intentional conduct, but also intended to, or engaged in conduct that evinced an intent to, ignore or pay no attention to his or her duties and obligations or the standards of behavior the employer has a right to expect.

 

Id. at 150.

            The legislature has also defined behavior that specifically does not constitute misconduct: “Inefficiency, inadvertence, simple unsatisfactory conduct, poor performance because of inability or incapacity, or absence because of illness or injury with proper notice to the employer, are not employment misconduct.”  Minn. Stat. § 268.095, subd. 6(b) (2002).

            We first address relator’s argument that Hall did not provide notice to relator of her illness.  The notice requirement in Minn. Stat.§ 268.095, subd.6(b), applies to absences due to illness or injury.  There is no requirement that an employee must give notice of the cause of an inability or incapacity that leads to poor performance.

            We next address whether the commissioner’s representative’s finding that Hall’s behavior was not intentional, negligent, or indifferent, but that Hall suffers from a mental illness that caused her to engage in disruptive and bizarre behavior, is supported by the record.  Relator’s representative testified that, aside from the episodes of belligerent and argumentative behavior, Hall was a very good worker.  Hall’s testimony and the statement from her physician support the commissioner’s representative’s finding.  The doctor corroborated that, aside from episodes occasioned by her illness, “Ms. Hall is a kind and gentle person,” and that she has always been a very compliant patient.  The record, including Hall’s inappropriate responses at the hearing and the physician’s statement, supports the commissioner’s representative’s determination that Hall was discharged for simple unsatisfactory conduct or poor performance because of inability or incapacity due to mental illness and she did not engage in employment misconduct. 

            Relator argues, for the first time on appeal, that Hall was not eligible for unemployment benefits because she was not “able to work” as required by Minn. Stat. § 268.085, subd. 1(2) (2002), for an applicant to be eligible to receive unemployment benefits.  If an issue is not before the commissioner’s representative it will generally not be addressed for the first time on appeal.  Imprint Tech. Inc. v. Comm’r of Econ. Sec., 535 N.W.2d 372, 378 (Minn. App. 1995).  Eligibility is an issue on which the commissioner’s representative is to make a specific determination on request.  Minn. Stat. § 268.101, subd. 3(a) (2002).  Resolution of the issue may require a factual determination.  See Mueller v. Comm’r of Econ. Sec., 633 N.W.2d 91, 92-93 (Minn. App. 2001).  Because the record on this issue was not developed, we decline to consider the matter for the first time on appeal.

            Affirmed.

 



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