This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






Janel M. Bruner,


Wal-Mart Associates, Inc.,

Department of Employment and Economic Development,


Filed July 17, 2007

Reversed and remanded

Minge, Judge


Department of Employment and Economic Development

File No. 5080-06


Charles H. Thomas, Law Offices of Southern Minnesota Regional Legal Services, Inc., 12 Civic Center Plaza, Suite 3000, P.O. Box 3304, Mankato, MN 56002-3304; and


Jeffrey Nelson, 421 Tenth Street, Worthington, MN 56187 (for relator)


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


Lee B. Nelson, Linda A. Holmes, 1st National Bank Building, Suite E200, 332 Minnesota Street, St. Paul, MN 55101-1351 (for respondent department)


            Considered and decided by Minge, Presiding Judge; Toussaint, Chief Judge; and Kalitowski, Judge.


U N P U B L I S H E D  O P I N I O N


MINGE, Judge


Relator argues that the unemployment law judge (ULJ) abused her discretion in denying relator’s request for reconsideration of the ULJ’s determination that relator was discharged for employment misconduct.  Relator argues that: (1) new evidence to be presented on reconsideration would likely change the outcome of the ULJ’s decision by showing that a mental condition caused her inability to perform; and (2) the ULJ deprived her of a fair trial by admitting an anonymous written complaint.  Because the evidence regarding relator’s mental condition is likely to change the outcome of the decision, because the ULJ failed to properly develop the record regarding that condition, and because it was error to admit the anonymous complaint, we reverse and remand for an additional evidentiary hearing.



In April 2001, relator Janel Bruner began working full time at Wal-Mart as a “people greeter.”  Her duties included greeting customers as they entered the store and setting a positive tone for Wal-Mart shoppers. 

Relator received several “coachings” because supervisors believed that she was not adequately performing her duties.  On February 2, 2006, management received a complaint that relator had been leaning on a trashcan as several customers walked past her.  A few days later, Wal-Mart discharged relator for “Misconduct w/Coachings.”

Relator applied for unemployment benefits, which the Department of Employment and Economic Development (department) originally granted.[1]  Wal-Mart appealed, and the matter came before a ULJ for a determination of whether relator had been discharged for employment misconduct.  The ULJ held a telephone hearing and heard testimony from relator and two of Wal-Mart’s assistant managers.  Before the hearing, the ULJ received several documents, including a brief written submission from relator stating that she had been diagnosed with depression and other mental impairments that prevented her from performing her job well at all times.  The ULJ also admitted a complaint regarding appellant’s job performance, even though the complainant’s name had been redacted from the document.  After the hearing, the ULJ concluded that relator exhibited an “I don’t care” attitude and an “indifferent course of conduct” that constituted employment misconduct. 

Relator requested reconsideration, arguing that the ULJ failed to consider her mental condition and improperly admitted the anonymous complaint.  The ULJ affirmed her prior decision, stating that “the testimony and evidence presented at the hearing did not reflect that [relator’s] failure to do her job was caused by depression,” and her “indifferent course of conduct towards her work responsibilities constituted employment misconduct.”  This certiorari appeal follows.



The first issue is whether the ULJ abused her discretion in denying relator’s request for reconsideration.[2]  When reviewing a ULJ’s denial of a request for reconsideration, “[a] reviewing court accords deference to a ULJ’s decision not to hold an additional hearing and will reverse that decision only for an abuse of discretion.”  Skarhus v. Davanni’s Inc., 721 N.W.2d 340, 345 (Minn. App. 2006). 

“In deciding a request for reconsideration . . . [t]he [ULJ] must order an additional evidentiary hearing if an involved party shows that evidence which was not submitted at the evidentiary hearing: (1) would likely change the outcome of the decision and there was good cause for not having previously submitted that evidence . . . .”  Minn. Stat.       § 268.105, subd. 2(c) (2006).  Here, the ULJ decided that relator was discharged for employment misconduct, which is defined as “any intentional, negligent, or indifferent conduct, on the job or off the job (1) that displays clearly a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee, or (2) that displays clearly a substantial lack of concern for the employment.”  Minn. Stat. § 268.095, subd. 6(a) (2004).  But

[i]nefficiency, inadvertence, simple unsatisfactory conduct, a single incident that does not have a significant adverse impact on the employer, conduct an average reasonable employee would have engaged in under the circumstances, poor performance because of inability or incapacity, good faith errors in judgment if judgment was required, or absence because of illness or injury with proper notice to the employer, are not employment misconduct.


Id. (emphasis added). 

A.         Reconsideration:  Good Cause


Relator argues that she had good cause for failing to present evidence of her mental condition at the initial hearing.  “An applicant’s entitlement to unemployment benefits shall be determined based upon that information available without regard to any common law burden of proof . . . .”  Minn. Stat. § 268.069, subd. 2 (2004).  When a party is not represented by counsel, the ULJ has a duty to assist the unrepresented party with presenting evidence and developing the record, including all relevant facts.  Thompson v. County of Hennepin, 660 N.W.2d 157, 161 (Minn. App. 2003); Minn. R. 3310.2921 (2005). 

Although relator did raise the issue of her mental condition in her brief written statement submitted before the hearing, she did not dwell on her condition.  But, the evidence accompanying her request for reconsideration indicates that relator’s mental condition causes her to minimize her disability.  Moreover, the ULJ did not follow up or question relator about what, if any, effect the condition had on her work performance.  Based on relator’s condition, the undeveloped record concurring that condition, and the ULJ’s failure to assist relator in developing the record, we conclude that the ULJ abused her discretion and that relator had good cause for failing to introduce such evidence.


B.         Reconsideration:  Likelihood of Changing Outcome

Relator argues that the ULJ abused her discretion in affirming the finding of misconduct without conducting an additional evidentiary hearing regarding her mental condition because, relator contends, such evidence is likely to change the outcome of the decision.  The department as a respondent represents to this court that

it is appropriate for the case to be remanded for a new evidentiary hearing.  The issues of mental illness raised by [relator] in both her written statements to the department prior to the hearing and her request for reconsideration after the hearing require that a fuller record be developed regarding her diagnosis and treatment, the relationship between her illness and her performance, and, separate from the matter of her separation, several ongoing issues concerning her eligibility for benefits. 


We agree with the department. 

Here, the ULJ concluded that relator’s “indifferent course of conduct towards her work responsibilities constituted employment misconduct.”  In her request for reconsideration, relator submitted a letter from her doctor and affidavits from both relator and her mother, all of which state that relator suffers from a depressive condition that likely affected her work.  The department correctly asserts that no cases have stated that a ULJ is required to consider proposed evidence as true.  But under Minn. Stat. § 268.105, subd. 2(c)(1), a ULJ is required to consider whether evidence would likely change the outcome of a case.  In making the decision whether to hold a reconsideration hearing, it is necessary to consider the effect that newly presented evidence may have on the ultimate result, when that evidence is viewed favorably to the relator.  The standard used by ULJs to consider new evidence accompanying a request for reconsideration should be similar to the standard used by district courts to consider an adverse party’s claims in resisting a summary judgment motion.  See, e.g., State Farm Fire and Cas. v. Aquila Inc., 718 N.W.2d 879, 886 (Minn. 2006) (stating that “upon a motion for summary judgment, an adverse party cannot preserve a right to trial on the merits merely by referring to unverified or conclusory allegations in the pleadings or by speculating about evidence that may be developed at trial”) (quotation omitted).

If relator does in fact suffer from a depressive mental condition, it could limit her capacity to perform her duties as a customer greeter.  In fact, if relator’s poor performance was caused by incapacity and not by an indifferent course of conduct, then she could not have committed misconduct under Minn. Stat. § 268.095, subd. 6(a).  Thus, when viewed most favorably to relator, the evidence regarding her mental condition would likely change the outcome here. 

Relator raised her mental condition both before the hearing in her written submission and after the hearing in her request for reconsideration.  After reviewing relator’s new evidence, the ULJ denied an additional hearing and stated that “the testimony and evidence presented at the hearing did not reflect that [relator’s] failure to do her job was caused by depression.”  The ULJ appears to have based her misconduct decision on relator’s indifferent attitude.  If relator suffers from clinical depression, her mental condition may have caused that attitude.  Because, if accurate, evidence regarding relator’s mental condition is likely to change the outcome of the decision, and because the ULJ did not develop the record regarding that condition, we conclude that the ULJ abused her discretion by refusing to conduct an additional evidentiary hearing, and we remand for an additional evidentiary hearing.


The second issue is whether the ULJ deprived relator of a fair hearing by improperly admitting evidence of the redacted complaint.  The department is responsible for adopting rules on evidentiary hearings, and these rules “need not conform to common law or statutory rules of evidence and other technical rules of procedure.”  Minn. Stat.     § 268.105, subd. 1(b) (2006).  Under these rules:

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 [ULJ] 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 [ULJ] may exclude any evidence which is irrelevant, immaterial, unreliable, or unduly repetitious.  A [ULJ] 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 [ULJ] may draw adverse inferences from the refusal of a party or witness to testify on the basis of any privilege.  A [ULJ] shall only use reliable, probative, and substantial evidence as a basis for decision.


Minn. R. 3310.2922 (2005). 

Although the rules of evidence are relaxed in the unemployment hearing context, a ULJ “shall exercise control over the hearing procedure in a manner that protects the parties’ rights to a fair hearing.”  Minn. R. 3310.2921.  “Unemployment benefits are an entitlement protected by the procedural due process requirements of the fourteenth amendment.”  Schulte v. Transp. Unlimited, Inc., 354 N.W.2d 830, 832 (Minn. 1984).  Due process requires a fair procedure.  See Mathews v. Eldridge, 424 U.S. 319, 334, 96 S. Ct. 893, 902 (1976); Goldberg v. Kelly, 397 U.S. 254, 266-71, 90 S. Ct. 1011, 1019-22 (1970).  In the unemployment context, due process requires an “opportunity to be present during the taking of testimony or evidence, to know the nature and contents of all evidence adduced in the matter, and to present any relevant contentions and evidence the party may have.”  Juster Bros., Inc. v. Christgau, 214 Minn. 108, 119, 7 N.W.2d 501, 507 (1943) (emphasis added) (quotation omitted).  Although hearings are conducted “without regard to any common law burden of proof as an evidence gathering inquiry and not an adversarial proceeding,” “[t]he [ULJ] shall ensure that all relevant facts are clearly and fully developed.”  Minn. Stat. § 268.105, subd. 1(b). 

Here, the ULJ admitted the February 2 performance complaint despite the fact that the identity of the complainant had been redacted.  Relator did not know the source of that complaint.  This is more than just a problem of hearsay.  With hearsay, the opportunity to confront and question adverse witnesses is compromised; however, all parties at least know the identity of the witness.  Secret or anonymous complaints are notorious for unreliability.  Cf. 11 Peter N. Thompson, Minnesota Practice § 801.02 (2001) (stating that out of court statements, including complaints, are generally considered unreliable and, therefore, inadmissible because the declarant is neither under oath nor subject to cross-examination).  Knowledge of the source of a complaint is often critical to formulating a defense.  We conclude that it was error to admit the anonymous complaint.

            Reversed and remanded.



[1] Relator received approximately four weeks of unemployment benefits.

[2] Relator claims that the ULJ erred in denying her request for reconsideration, but because the applicable standard of review is abuse of discretion, we characterize relator’s argument accordingly.