This opinion will be unpublished and

may not be cited except as provided by

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






Kerrie S. Machacek,





Our Homes South, Inc.,



Department of Employment and Economic Development,



Filed ­­­July 10, 2007


Dietzen, Judge


Department of Economic Development

Agency File No. 6084 06


Kerrie S. Machacek, 227 East Rose Street, Owatonna, MN 55060 (pro se relator)


Lee B. Nelson, Linda A. Holmes, Department of Employment and Economic Development, 332 Minnesota Street, Suite E200, St. Paul, MN 55101-1351 (for respondent Department of Employment and Economic Development)


Our Homes South, Inc., 113 North Main Street, Medford, MN 55049 (respondent)


            Considered and decided by Dietzen, Presiding Judge; Toussaint, Chief Judge; and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N




            By writ of certiorari, relator challenges the decision of the unemployment law judge (ULJ) that she was discharged for aggravated employment misconduct and, therefore, was disqualified from receiving unemployment benefits, arguing that the ULJ erred by relying on hearsay evidence and that the record did not support the ULJ’s decision.  Because the ULJ properly applied the law, and the record supports the ULJ’s determination that relator was discharged for aggravated employment misconduct, we affirm.


Relator Kerrie Machacek was employed as a resident counselor for Our Homes South, Inc. (OHS) from September 1998 until March 2006.  OHS is engaged in the business of operating group homes for adults with developmental disabilities.  Relator assists group-home residents with daily activities.  As part of her employment, relator received extensive training in caring for residents, including compliance with the Vulnerable Adults Act, which she was required to follow at all times.

            On March 11, 2006, relator worked at a group home with two residents who were scheduled for a Special Olympics basketball practice that day.  Prior to leaving, one of the residents started pulling her own hair, screaming, and hitting her head against the wall.  Relator was able to temporarily calm the resident, but the behavior escalated during basketball practice, and relator decided to take the resident home.  During the ride home, the resident’s behavior continued to escalate, and relator called a coworker for assistance.

When relator and the resident arrived at the group home, the resident continued yelling and screaming at relator and her coworker.  On the way from the car to her room, the resident kicked relator.  Relator then kicked the resident back, and the coworker reported the incident to the employer.

On March 15, 2006, OHS terminated relator for kicking the resident in violation of the Vulnerable Adults Act.  Relator applied for unemployment benefits, but the Department of Employment and Economic Development (“the department”) denied her application.  Relator appealed, and a ULJ conducted a hearing.

At the hearing, the employer’s CEO testified that shortly after the incident, relator’s coworker reported to the employer that relator had kicked the resident and said, “How do you like that?”  The employer investigated the incident by interviewing the coworker, the other resident who was present, and relator.  The employer then notified the police and filed a vulnerable adult report with Steele County and the Department of Human Services.[1]  Based on the results of its own investigation, the employer concluded, and then testified, that relator had kicked the resident and said, ‘How do you like that?’”

Relator, in contrast, testified that she “did not kick [the resident]” but “moved or swung or kicked [her own] foot out of the way.”  Relator admitted that she stated something to the effect of “how would you like that?” or “how would other people feel if you saw someone behave that way?”

            The ULJ credited the employer’s version of the incident and determined that relator had kicked the resident and was disqualified from receiving unemployment benefits “because of aggravated employment misconduct.”  Relator then filed a request for reconsideration, arguing that the ULJ erred in relying on hearsay evidence and that the employer failed to show that relator committed misconduct.  The ULJ denied the request for reconsideration, stating that “[h]earsay is admissible in unemployment appeal hearings and there is no burden of proof.”  This certiorari appeal follows.



Relator challenges the ULJ’s determination that she committed aggravated misconduct.  On certiorari appeal this court may affirm the ULJ’s decision, remand it for further proceedings, or reverse or modify it if the relator’s substantial rights “may have been prejudiced because the findings, inferences, conclusion, or decision are . . . affected by . . . error of law” or “unsupported by substantial evidence in view of the entire record as submitted.”  Minn. Stat. § 268.105, subd. 7(d) (2006). 

Whether an employee committed misconduct is a mixed question of fact and law.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  Whether the employee committed a particular act is a question of fact.  Skarhus v. Davanni’s Inc., 721 N.W.2d 340, 344 (Minn. App. 2006).  Findings of fact are reviewed in the light most favorable to the ULJ’s decision, and deference is given to the ULJ’s determinations of credibility.  Id. This court will not disturb the ULJ’s factual findings when those findings are supported by substantial evidence.  Id.; Minn. Stat. § 268.105, subd. 7(d)(5).  But whether an act by the employee constitutes disqualifying misconduct is a question of law, which we review de novo.  Schmidgall, 644 N.W.2d at 804.

Aggravated employment misconduct is defined as

(1) the commission of any act, on the job or off the job, that would amount to a gross misdemeanor or felony if the act substantially interfered with the employment or had a significant adverse affect on the employment; or


(2) for an employee of a facility as defined in section 626.5572, aggravated employment misconduct includes an act of patient or resident abuse, financial exploitation, or recurring or serious neglect, as defined in section 626.5572 and applicable rules.


Minn. Stat. § 268.095, subd. 6a (2004). 

Here, relator was an employee of a facility intended to care for vulnerable adults as defined in Minn. Stat. § 626.5572, subd. 6 (2004) (defining “facility”).  Section 626.5572, subd. 2(b) (2004) defines abuse of a vulnerable adult as

Conduct which is not an accident or therapeutic conduct . . ., which produces or could reasonably be expected to produce physical pain or injury or emotional distress including, but not limited to, the following:


(1) hitting, slapping, kicking, pinching, biting, or corporal punishment of a vulnerable adult;


(2) use of repeated or malicious oral, written, or gestured language toward a vulnerable adult or the treatment of a vulnerable adult which would be considered by a reasonable person to be disparaging, derogatory, humiliating, harassing, or threatening[.]


Relator argues that the ULJ erred in three ways.  First, relator argues that the ULJ erred in relying on hearsay evidence.  The ULJ did rely on the employer’s testimony regarding the coworker’s version of the incident in question.  But unemployment hearings “need not conform to common law or statutory rules of evidence and other technical rules of procedure.”  Minn. Stat. § 268.105, subd. 1(b) (Supp. 2005).  Further, 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.”  Minn. R. 3310.2922 (2005).  Thus, the ULJ did not err in relying on hearsay evidence.  Id.; see also Skarhus, 721 N.W.2d at 345 (quoting rule 3310.2922 and stating that a “witness at an evidentiary hearing is not required to have firsthand knowledge because a ULJ ‘may receive any evidence which possesses probative value, including hearsay’”); Vang v. A-1 Maint. Serv., 376 N.W.2d 479, 482 (Minn. App. 1985) (stating that hearsay evidence may be sufficient to support a ULJ’s decision).

Second, relator argues that the record does not support the ULJ’s determination that she kicked the resident.  The ULJ credited the employer’s testimony that relator kicked the resident and concluded that such conduct constituted aggravated misconduct.  “Credibility determinations are the exclusive province of the ULJ and will not be disturbed on appeal.”  Skarhus, 721 N.W.2d 345.  When the credibility of a party or witness has a significant effect on the outcome of a decision, the unemployment law judge must set out the reason for crediting or discrediting that testimony.  Minn. Stat. § 268.105, subd. 1(c) (Supp. 2005).  Here, the ULJ concluded that the employer’s testimony was

based on a complaint by a coworker who witnessed the incident.  The coworker had no reason to make false statements against [relator] that she kicked the resident.  Furthermore, the evidence indicates that after kicking [relator] made a statement to the effect, “How do you like that?”  This indicates that [relator] kicked the client back.


The record supports the ULJ’s credibility determination.

Third, relator argues that the employer failed to meet its burden of proof.  She cites Peterson v. Fred Vogt & Co., 495 N.W.2d 875, 877 (Minn. App. 1993) and Wilson v. Comfort Bus Co., Inc., 491 N.W.2d 908, 911 (Minn. App. 1992), review denied (Minn. Jan. 15, 1993), for the proposition that an employer bears the burden of proving by the greater weight of the evidence that the employee committed disqualifying misconduct.  But those cases no longer apply. 

Minn. Stat. § 268.069, subd. 2 (2004), which applies to the present case, states that there is “no presumption of entitlement or nonentitlement to unemployment benefits.”  Thus, “[a]n applicant’s entitlement to unemployment benefits shall be determined based upon that information available without regard to any common law burden of proof . . . .”  Id.  Further, an evidentiary hearing regarding disqualification “shall be conducted by an unemployment law judge without regard to any common law burden of proof as an evidence gathering inquiry and not an adversarial proceeding.”  Minn. Stat. § 269.105, subd. 1(b) (2004).  Thus, the ULJ did not err in determining that no specific burden of proof applied to these proceedings.




Christopher J. Dietzen, Judge

[1] At the time of the hearing, an official investigation was pending.  The record contains no indication of the outcome of that investigation.