This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ß 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
Ken R. Worden,
Department of Employment and
Filed May 8, 2007
Department of Employment and
File No. 3850† 06
Ken R. Worden,
Calcutta Partners LLC,
Lee B. Nelson, Linda A. Holmes, Minnesota Department of Employment and Economic Development, First National Bank Building, 332 Minnesota Street, Suite E200, St. Paul, Minnesota 55101-1351 (for respondent Department)
††††††††††† Considered and decided by Hudson, Presiding Judge; Randall, Judge; and Dietzen, Judge.
U N P U B L I S H E D†† O P I N I O N
Relator challenges the ULJís determination regarding the date of his last day of work.† Because credibility determinations are within the purview of the ULJ, we affirm.
Relator Ken Worden began working for respondent Calcutta Partners, LLC, as a delivery driver for Green Mill on October 1, 2005. †Respondent requires its employees to call in before the start of their shift if they are going to be late or absent.† In early February 2006, relator overslept and was late for work without calling in. †On February 10, 2006, appellant again overslept and did not go to work or call in before his shift was scheduled to start.† Later that day, relator called into work and was told that he had been removed from the work schedule and discharged.†
††††††††††† A Minnesota Department of Employment and Economic Development (DEED) adjudicator determined that relator was disqualified from receiving unemployment benefits because he was discharged for employment misconduct.† The DEED adjudicatorís decision states that relatorís date of separation from employment was February 14, 2006.† Relator appealed that decision, arguing that he did not commit misconduct. †On March 30, 2006, after an evidentiary hearing, an unemployment law judge (ULJ) concluded that relator was terminated for employment misconduct.† The findings of fact issued by the ULJ state that relatorís last day of work was February 10, 2006.
As a result of his disqualification, relator received a notice of overpayment stating he had to repay $432 in unemployment benefits that were paid to him.† After the ULJ determined that relatorís last day of work was February 10, 2006, and not February 14, 2006, relator received another notice of overpayment, which directed him to repay an additional $294, for a total of $726.
Relator requested reconsideration of the ULJís decision, arguing that his last day of work was actually February 14.† On May 10, 2006, the ULJ issued an order of affirmation of his March 30, 2006, decision. †This certiorari appeal follows.†††
D E C I S I O N
Relator challenges the date of his discharge as determined by the ULJ.† Relator argues that he should not have to pay the additional $294 because the ULJís determination of his date of discharge is erroneous.†††††
reviewing the decision of a ULJ, this court may affirm the decision, remand the
case for further proceedings, or reverse or modify the decision if the
substantial rights of the petitioner may have been prejudiced because the
decision is affected by error of law, is unsupported by substantial evidence,
or is arbitrary or capricious.† Minn.
Stat. ß 268.105, subd. 7(d) (2006).†
The ULJís factual findings must be viewed in the light most favorable to
the decision.† Skarhus v. Davanniís, Inc., 721 N.W.2d 340, 344 (Minn. App. 2006).† This court defers to the ULJís determinations
regarding witness credibility and conflicting evidence.†
Here, after examining the testimony and evidence before him, the ULJ determined that relator was discharged from his employment on February 10, 2006.† The ULJ weighed the conflicting testimony of relator and his supervisor, and determined that the supervisorís testimony was more credible:
[the supervisorís] greater degree of certainty regarding the date of the discharge makes his testimony more credible than [relatorís] testimony.† Generally, [relatorís] testimony was vague.† [The supervisorís] testimony was more definite. . . .† [The supervisorís] testimony was more persuasive than [relatorís] testimony.
Because credibility determinations are within the purview of the ULJ and because the evidence in the record tends to support the ULJís findings, we conclude that the ULJís finding that relatorís last day of work was February 10, 2006, was supported by substantial evidence and not arbitrary and capricious.
††††††††††† Relator also submitted documents to
this court that were apparently not part of the record before the DEED
adjudicator or the ULJ.† We decline to consider
these documents.† ďThe papers filed in
the trial court, the exhibits, and the transcript of the proceedings, if any,
shall constitute the record on appeal in all cases.Ē†