This opinion will be unpublished and

may not be cited except as provided by

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







John K. Hulett,





Thomas Kinkade Stores, Inc. (2004),



Department of Employment and Economic Development,



Filed September 18, 2007


Willis, Judge


Department of Employment and Economic Development

File No. 966406



John K. Hulett, 920 Garland Lane North, Plymouth, MN  55447-3534 (pro se relator)


Thomas Kinkade Stores, Inc. (2004), 900 Lightpost Way, Morgan Hill, CA  95037-2869 (respondent)


Lee B. Nelson, Department of Employment and Economic Development, First National Bank Building, 332 Minnesota Street, Suite E200, St. Paul, MN  55101-1351 (for respondent Department of Employment and Economic Development)


            Considered and decided by Willis, Presiding Judge; Minge, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N


Relator appeals from his disqualification from unemployment benefits, arguing that the unemployment-law judge was biased and unfair and that he quit for good reason caused by his employer.  We affirm.


            Relator John K. Hulett was employed by respondent Thomas Kinkade Stores, Inc. (2004) (Kinkade) from December 1, 2003, through June 3, 2006.  On June 1, 2005, Hulett became the assistant gallery manager for Kinkade’s store in the Mall of America.  As an assistant gallery manager, Hulett was paid $12 per hour, plus a 5% commission on net personal sales and an additional 0.5% commission on the gallery’s gross sales.  On May 1, 2006, Hulett was transferred from his position as assistant gallery manager to a position as an art consultant and inventory-control specialist.  In his new position, Hulett was paid $12 per hour, plus a 10% commission on his gross personal sales.  In addition, Hulett was “to develop and run a sales program in the secondary art market,” for which he would receive an 8% commission on his net personal sales in that market.

            On June 3, 2006, Hulett quit his employment with Kinkade.  Hulett filed a request for unemployment benefits, and an adjudicator determined that Hulett was disqualified from benefits because he quit his employment without a good reason caused by Kinkade.  Hulett appealed, and a hearing was held before an unemployment-law judge (ULJ).  At the hearing, Hulett testified that he quit because of “[d]emotion, loss in sales and compensation over a period of time . . . , management nonsupport[], [and the fact that the] environment was unhealthy.”  Hulett asserted also that several of his sales were not credited to him.  The gallery’s director testified that Hulett was transferred to the  inventory-control-specialist position because of “general frustration both with John over the assistant director position concerning . . . the admin[istration] work and the general overall morale of the gallery.”

            Following the hearing, the ULJ determined that Hulett quit his employment without good reason caused by Kinkade.  The ULJ found that although Hulett claimed that he was denied credit for a number of sales, “there was no hard and fast rule regarding such situations.”  And the ULJ found that when Hulett complained, the gallery director “investigated and credited Hulett with the sale if it was clearly warranted.”  In addition, the ULJ determined that “there is insufficient evidence from which it can be concluded that the change in the compensation structure [after Hewlett’s transfer to the inventory-control position] would substantially affect the amount of compensation Hulett would receive.”

Hulett filed a request for reconsideration, alleging for the first time that Kinkade discriminated against him on the basis of his age.  Hulett also submitted numerous documents that had not been offered into evidence at the hearing.  The ULJ denied Hulett’s request for reconsideration, noting that “[d]uring the evidentiary hearing[,] no allegation or evidence of discrimination was presented by Hulett or his attorney.”  And the ULJ refused to consider Hulett’s new evidence, concluding that because he “had ample opportunity to submit such documents at the time of the evidentiary hearing,” and because Hulett “gave no explanation for not submitting the additional evidence at that time,” Hulett had not established good cause to receive the additional evidence.  This certiorari appeal follows.



Hulett raises a number of complaints regarding the ULJ’s conduct of the hearing.  The ULJ is responsible for developing at a hearing all the pertinent facts.  Minn. Stat. § 268.105, subd. 1(b) (2006).  Thus, a ULJ must exercise control over the hearing to ensure its fairness.  Minn. R. 3310.2921 (2005).  A ULJ may receive evidence that “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).  And a ULJ may exclude evidence that is “irrelevant, immaterial, unreliable, or unduly repetitious.”  Id. To establish that a reversal is necessary, a relator must show that his substantial rights were prejudiced by a ULJ’s unlawful procedure or other error of law.  Ywswf v. Teleplan Wireless Servs., Inc., 726 N.W.2d 525, 530 (Minn. App. 2007).

Hulett argues first that “[t]he interrogation style of questioning by [the ULJ] made it extremely difficult . . . to introduce exhibits.”  An unemployment-benefits hearing is not an adversarial proceeding; it is “an evidence gathering inquiry.”  Minn. Stat. § 268.105, subd. 1(b) (2006).  In addition, the record shows that although Hulett wished to offer testimony and exhibits regarding incidents going back to 2003, the ULJ refused to allow evidence of incidents in 2003 and 2004, noting that he wanted to “focus on issues that were in existence . . . at the time [Hulett] quit.”  Given the ULJ’s discretion to exclude evidence that is irrelevant, Hulett has not established that his substantial rights were prejudiced.

Hulett also alleges that he was subjected to “bias[ed] and objectionable questioning along with a cross-examination approach from the judge,” complaining specifically of the ULJ’s questions concerning his exhibits.  The record shows that the ULJ asked specific questions concerning the exhibits, and although the ULJ did at times interrupt Hulett, those interruptions were to identify the relevance of his exhibits and to ensure that Hulett answered all of the questions.  We see no error.

Hulett argues finally that he was unable to present all of his witnesses because his attorney “advised Hulett and his witnesses that the judge would not hear their testimonies and accept them as being relevant to the case.”  The record shows that, while attempting to identify a date to which to continue the hearing, the ULJ told Hulett’s attorney, “And I think I have some questions as to whether or not, I’m not questioning your judgment, I would have questions whether all of your witnesses were, in fact, necessary.”  But the ULJ specifically told the attorney that he “certainly [did not] want to short change you . . . in terms of your witnesses.”  And the record shows that after consulting with Hulett, the attorney told the ULJ that they would not be calling additional witnesses.  We conclude that Hulett has not established that his substantial rights were prejudiced.


Hulett argues next that he had good reason caused by his employer to quit because he was allegedly discriminated against and because of his transfer to the inventory-control-specialist position.  Upon review of a ULJ’s decision, this court may affirm, remand for further proceedings, reverse, or modify the decision.  Minn. Stat. § 268.105, subd. 7(d) (2006).  Review of a ULJ’s decision is a mixed question of law and fact.  See Colburn v. Pine Portage Madden Bros., Inc., 346 N.W.2d 159, 161 (Minn. 1984) (characterizing standard of review of commissioner’s decisions).  Whether an employee had good reason caused by the employer to quit is a question of law, which we review de novo.  Rootes v. Wal-Mart Assocs., Inc., 669 N.W.2d 416, 418 (Minn. App. 2003).  But we will defer to the ULJ’s findings of fact if the evidence in the record reasonably tends to support them.  Ress v. Abbot Nw. Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).

There is no dispute that Hulett voluntarily quit his employment.  Under Minn. Stat. § 268.095, subd. 1(1) (2006), an employee who voluntarily quits his employment is disqualified from receiving unemployment benefits unless the employee had “good reason caused by the employer” to quit.  An employee has a “good reason” to quit if the employer is responsible for an action that is (1) directly related to the employment, (2) adverse to the employee, and (3) would “compel” an average, reasonable employee “to quit and become unemployed rather than remaining in the employment.”  Minn. Stat. § 268.095, subd. 3(a) (2006).

Hulett argues repeatedly in his briefs that he had good reason to quit because Kinkade discriminated against him because of his age.  It is true that an employer that violates the law in its treatment of its employees is “per se guilty of employer misconduct” and that, therefore, the employee has good reason to quit.  Hawthorne v. Universal Studios, Inc., 432 N.W.2d 759, 762 (Minn. App. 1988) (quotation omitted).  But at the hearing, Hulett did not allege discrimination as a reason for quitting his employment.  There was, consequently, no evidence presented at the hearing regarding discriminatory treatment.  And the ULJ made no findings on this allegation.  We conclude, therefore, that this argument has been waived.  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (holding that an issue not raised in a hearing below is waived on appeal).

Hulett argues also that he had a good reason to quit because he was “faced with [a] substantial adverse change in wages, hours or other terms of employment.”  The ULJ rejected this argument because he found that the change in Hulett’s position was “in response to Hulett’s own expressed frustrations with a portion of his duties he was required to perform as assistant gallery manager” and because there was no evidence that Hulett actually suffered a loss in pay.

We agree with the ULJ.  An employee may have good reason to quit when he is placed in a position that “requires substantially less skill than [the employee] possesses.”  Marty v. Digital Equip. Corp., 345 N.W.2d 773, 775 (Minn. App. 1984).  But here, there was evidence that the change in Hulett’s position was motivated, at least in part, by Hulett’s own desire not to perform administrative duties.  We also note that in his new position, Hulett was given the opportunity to develop the “secondary market,” a previously unexplored avenue for sales.  Finally, as the ULJ found, there is no evidence that Hulett actually suffered a loss in pay because he quit within a month of his transfer to his new position.  We conclude, therefore, that Hulett has not established that he quit his employment for a good reason caused by Kinkade.