A06-983

Ken R. Worden,

Relator,

vs.

Calcutta Partners, LLC,

Respondent,

Department of Employment and

Economic Development,

Respondent.

Filed May 8, 2007

Affirmed

Hudson, Judge

Department of Employment and

Economic Development

File No. 3850 06

Ken R. Worden, 10670 President Drive Northeast, Blaine, Minnesota 55434-1688 (pro se relator)

Calcutta Partners LLC, 4355 Pheasant Ridge Drive Northeast, Blaine, Minnesota 55449-4530 (employer respondent)

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

HUDSON, Judge

Relator challenges the ULJ’s determination regarding the date of his last day of work. Because credibility determinations are within the purview of the ULJ, we affirm.

FACTS

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 adjudicator’s decision states that relator’s 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 relator’s 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 relator’s 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 ULJ’s 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 ULJ’s determination of his date of discharge is erroneous.

When 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. § 268.105, subd. 7(d) (2006). The ULJ’s factual findings must be viewed in the light most favorable to the decision. Skarhus v. Davanni’s, Inc., 721 N.W.2d 340, 344 (Minn. App. 2006). This court defers to the ULJ’s determinations regarding witness credibility and conflicting evidence. Id. “When the credibility of an involved party or witness testifying in an evidentiary hearing has a significant effect on the outcome of a decision, the [ULJ] must set out the reason for crediting or discrediting that testimony.” Minn. Stat. § 268.105, subd. 1(c) (2006).

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 supervisor’s testimony was more credible:

[the supervisor’s] greater degree of certainty regarding the date of the discharge makes his testimony more credible than [relator’s] testimony. Generally, [relator’s] testimony was vague. [The supervisor’s] testimony was more definite. . . . [The supervisor’s] testimony was more persuasive than [relator’s] testimony.

Because credibility determinations are within the purview of the ULJ and because the evidence in the record tends to support the ULJ’s findings, we conclude that the ULJ’s finding that relator’s 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. “The 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.” Minn. R. Civ. App. P. 110.01; see also Minn. R. Civ. App. P. 115.04, subd. 1 (applying the provisions of rule 110.01 to cases heard by writ of certiorari).

Affirmed.