This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-1318

 

Michele R. Sykes,

Relator,

 

vs.

 

Wal-Mart Associates, Inc.,

Respondent,

 

Commissioner of Employment

and Economic Development,

Respondent.

 

Filed June 22, 2004

Reversed and remanded

Hudson, Judge

 

Department of Employment and

Economic Development

File No. 4292 03

 

Michele R. Sykes, 5021 Ė 19-1/2 Avenue Northwest, Rochester, Minnesota 55901 (pro se relator)

 

Wal-Mart Associates, Inc., Owatonna Location, c/o TALX UCM Services, Inc., P.O. Box 283, St. Louis, Missouri 63166-0283 (respondent)

 

Lee B. Nelson, Katrina I. Smith, Minnesota Department of Employment and Economic Development, 390 North Robert Street, St. Paul, Minnesota 55101 (for respondent commissioner)

 

††††††††††† Considered and decided by Hudson, Presiding Judge; Randall, Judge; and Forsberg, Judge.*

U N P U B L I S H E D†† O P I N I O N

HUDSON, Judge

On appeal by writ of certiorari, relator, Michele Sykes, challenges the representative of the Commissioner of Employment and Economic Developmentís decision that relator quit her employment without good cause attributable to her employer.† Relator contends that she was denied a fair hearing because the Department of Employment and Economic Development and the unemployment law judge failed to subpoena witnesses that could have helped relator establish her case.† We reverse and remand.†

FACTS

Relator, Michele Sykes, worked full time for Wal-Mart as a cashier from June 4, 2002, through December 6, 2002.† On July 18, 2002, Sykes and other employees received coaching for improvements for using the hand keys to type in the price of items when they would not scan.† About a month later, Sykes received a performance appraisal praising her for her good attitude but stating that she needed to improve her timeliness.†

Sometime toward the end of November of 2002, Sykes, along with three other employees, used Wal-Martís open-door policy to express their concerns to Wal-Mart manager Tammy Reed over the promotion of a fellow employee.† Reed, who testified at the unemployment hearing, stated that she discussed the complaints raised by Sykes and her co-workers with the store manager Brett, and expressed concerns to the employee whom management was considering for the promotion.†

On November 28, 2002, Sykes received a second coaching for improvement, for ďlack of respect for individuals,Ē ďbossinessĒ toward other associates, and for doing more ďwatching than working.Ē† The night supervisor issued the coaching in response to complaints by two of Sykesís co-workers.† After receiving the second coaching, Sykes felt that the night manager was unfairly targeting her and complained to her manager.† Sykes testified that after this incident she also spoke with the Department of Labor and the local union, and after these discussions suggested to her fellow employees that unionizing may be a good idea.†

Sykes contends that, prior to complaining about the promotion of her co-worker, no one had ever expressed any concern about her ability to perform her job; rather, management told her that she was doing a great job.†

On December 6, 2002, Sykes received a third coaching for improvement for taking too long to water the plants.† Sykes was warned that any further problems could result in termination.† Sykes continued to feel management was unfairly targeting her so she walked out and quit her employment.† Reed testified that Sykes was a good cashier and that the coaching for improvements were meant to give her an opportunity to improve her skills in certain areas.†

††††††††††† Sykes applied for unemployment benefits and a Department of Employment and Economic Development (department) adjudicator initially determined that Sykes was eligible because she quit her employment for a good reason caused by the employer.† Wal-Mart appealed that determination, and after conducting a de novo hearing, the unemployment law judge (ULJ) reversed the initial determination finding that Sykes quit her employment without a good reason attributable to the employer.†

Before the hearing, Sykes called the department to request that the department subpoena: (1) Sara Edwards, one of the supervisors who had given her the coaching for improvements on both November 28, 2002, and December 6, 2002; (2) Tena Juraclo, a supervisor who had given her positive feedback and called her a valuable asset; (3) a co-worker that Sykes had trained; (4) a police officer on duty on December 6, 2002, who had witnessed her water the plants; and (5) other Wal-Mart employees.† Sykes stated that the person she spoke with at the department told Sykes that she would not subpoena the witnesses because the department employee did not feel it was important.† At the hearing, Sykes made her request directly to the ULJ.† After hearing Sykesís testimony on what each of the witnesses would testify to, the ULJ denied Sykesís request stating that he would decide the case on what he had in front of him.† The ULJ did not provide any reasons for his decision to deny the request.†

Sykes appealed this decision to the commissionerís representative, and in her appeal Sykes requested that the commissionerís representative grant her a new hearing to give her the opportunity to call the witnesses she attempted to have subpoenaed at the first hearing.† The commissionerís representative did not address Sykesís request for subpoenas, and affirmed the ULJís decision concluding that Sykes was disqualified from receiving benefits because she quit her employment with Wal-Mart, and no exception to disqualification applied.† This certiorari appeal follows.

D E C I S I O N

When reviewing the departmentís determination about an employeeís qualifications for unemployment benefits, we review the commissionerís representativeís findings rather than the unemployment law judgeís findings.† Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).† We have a narrow standard of review that requires us to view the commissionerís representativeís findings in the light most favorable to the decision; the decision is not disturbed if the evidence reasonably tends to sustain the commissionerís representativeís findings.† Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).†

The commissionerís representativeís findings are a mixed question of law and fact.† Colburn v. Pine Portage Madden Bros., Inc., 346 N.W.2d 159, 161 (Minn. 1984).† The question of whether an employee voluntarily resigns is a fact question for the commissioner.† Shanahan v. Dist. Memíl Hosp., 495 N.W.2d 894, 896 (Minn. App. 1993).† Whether an employee had good cause to quit is a question of law subject to de novo review.† Ryks v. Nieuwsma Livestock Equip., 410 N.W.2d 380, 382 (Minn. App. 1987).† But because of a procedural defect in the proceedings below, we do not reach the merits of whether relator had good cause to quit.†

Sykes contends that she quit for good reason caused by her employer because, although she was an excellent employee, her employer gave her unsubstantiated coaching for improvements in retaliation against her for: (1) meeting with a supervisor to express her concern about an employee being considered for a promotion; and (2) her discussions with other employees about possible unionization.† Sykes argued that she was not given an opportunity to prove her case because the department and the ULJ refused to subpoena key witnesses who would support her claim.†

Pursuant to Minn. Stat. ß 268.105, subd. 1(b) (2002), when a party appeals the departmentís determination on unemployment benefits, neither party bears the burden of proof.† The ULJ is, however, required to assist unrepresented parties in the presentation of evidence, and to ensure that the record is fully developed in order to protect the partiesí right to a fair hearing.† Minn. R. 3310.2921.† When the party is pro se, the ULJ must help the party ďrecognize and interpret the partiesí claims.Ē† Miller v. Intíl Express Corp., 495 N.W.2d 616, 618 (Minn. App. 1993).† The department may issue subpoenas to compel witnesses to attend unemployment compensation hearings.† Minn. Stat. ß 268.188 (a) (2002).† And in fact, the department has established its own rule regarding the process for issuing a subpoena:

Subpoenas are available to a party to compel the attendance of witnesses, the production of documents or other exhibits upon a showing of necessity by the party applying for subpoenas.† Subpoenas may be obtained by calling or writing the appellate office sufficiently in advance of the scheduled hearing to allow for the service of the subpoenas.† The requesting party must identify the person or documents to be subpoenaed, the subject matter of the evidence requested, and their necessity.† A request for a subpoena may be denied if the testimony or documents sought would be irrelevant, immaterial, or unduly cumulative or repetitious . . . .

 

Minn. R. 3310.2914, subd. 1 (2001).†

††††††††††† Recently, in Thompson v. County of Hennepin, 660 N.W.2d 157, 160-61 (Minn. App. 2003), this court held that the relator was deprived of a full and fair hearing because she was denied the opportunity to present the testimony of witnesses who were allegedly subpoenaed to testify at the hearing.† In Thompson,the record was unclear as to whether the department had failed to issue the subpoenas or whether the department had issued the subpoenas and the witnesses simply failed to attend the hearing.† Id.Nevertheless, this court concluded that it was clear that ďthe record should have alerted the commissionerís representative to a significant procedural defect regarding allegedly subpoenaed witnesses.Ē† Id.† Thus, this court reversed and remanded the case to the commissionerís representative to ensure that relator received a full and fair hearing.† Id.

††††††††††† Similarly in Ntamere v. DecisionOne Corp., 673 N.W.2d 179, 182 (Minn. App. 2003), this court determined that when the commissionerís representative failed to enforce a subpoena compelling the testimony of a witness, the procedural defect was so significant that the case should be remanded to provide for a full and fair hearing.†

In Sykesís case, the department and ULJ refused to issue subpoenas compelling Sykesís witnesses to attend the hearing.† On further appeal, the commissionerís representative failed to address Sykesís request to the ULJ for the issuance of subpoenas, or her request for a new hearing so that she could attempt to subpoena the witnesses again.† While we acknowledge that the testimony of some of Sykesís proposed witnesses might not have been relevant or necessary, we are persuaded that the testimony of Edwards and Juraclo, two of Sykesís former supervisors, would have been relevant and necessary.† Edwards was one of the supervisors who signed the coaching for improvements Sykes received on November 28, 2002, and December 6, 2002, and Sykes stated that she would like to question Edwards about the legitimacy of the coaching for improvements.† Because Edwards was one of the parties who decided to issue the coachings, Sykes was entitled to question Edwards concerning Sykesís claim of retaliation.† Moreover, Edwards could testify about Sykesís work performance immediately prior to receiving the coaching for improvements.† While Reed testified to what was said by the employees who reported that Sykes was bossy, Reed did not witness Sykesís behavior immediately before she received the coaching for improvement, and she did not know why the coaching stated Sykes did more ďwatching than working.Ē† Edwards could better account for Sykesís work performance before she received the coaching.†

Further, Juraclo completed Sykesís performance appraisal and had worked closely with Sykes.† Therefore, she was in a better position to accurately testify about Sykesís work performance and address whether Sykes was given coaching for improvements in an effort to encourage her to quit or establish a reason to fire her.† Reed never actually worked with Sykes except for during shift changeovers.† Based on this record, it is clear that the testimony of Edwards and Juraclo was necessary and would have provided the commissioner with first-hand knowledge of Sykesís work performance and the reasons she was given the coaching for improvements.† More importantly, as in Thompson and Ntamere, this ďrecord should have alerted the commissionerís representative to a significant procedural defectĒ regarding Sykesís subpoena request and whether she was given a full opportunity to present her defense to the allegation of employment misconduct.† On these facts, we conclude that it was error for the commissionerís representative not to have ordered a remand.† Accordingly, we reverse the commissionerís representativeís determination and remand this matter to the commissionerís representative to ensure that the record is fully developed and that Sykes receives a full and fair hearing.†

Reversed and remanded.

 

 



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