Department of Employment and Economic Development File No. 29191323-3
The opinion of the court was delivered by: Hudson, Judge
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2012).
Considered and decided by Hudson, Presiding Judge; Kalitowski, Judge; and Kirk, Judge.
UNPUBLISHED OPINION HUDSON, Judge
The unemployment law judge (ULJ) initially determined that relator was ineligible for unemployment benefits because he performed "side work" using company resources, constituting employment misconduct and denied his request for reconsideration. In this certiorari appeal, relator argues that there was no misconduct because the business owner gave him permission to perform the work in question and because the ULJ's findings are unsupported by substantial evidence in the record. Relator further argues that the ULJ failed to adequately consider new, corroborating evidence presented with relator's request for reconsideration. Because the new evidence would likely have changed the outcome had it been presented at the initial hearing and because relator had good cause for not previously submitting the evidence, the ULJ abused his discretion by denying relator's request for an additional evidentiary hearing. We reverse and remand for an additional evidentiary hearing.
Relator Timothy Dehn was hired by respondent-employer Brown Brothers Remodeling, LLC (BBR), as a full-time, salaried plumber in March 2010. BBR is owned by two brothers, John and David Brown. Relator's immediate supervisor was Robert Myhran, operations manager at BBR. Myhran represented BBR at the evidentiary hearing that took place on March 27, 2012.
Relator was hired under a sub-corporation named BBR Plumbing and Install that was created to allow BBR to do plumbing installations and get a plumbing bond. BBR Plumbing and Install was owned by John Brown and Jonathan Honerbrink, a former employee of BBR.
Relator missed work on November 23 and 25, 2011, ostensibly because he was going to Wisconsin for Thanksgiving. But Myhran testified that he made several visits past relator's house and discovered that relator's work van was being used intermittently while relator was supposedly in Wisconsin. At the hearing, Myhran claimed he checked on relator because he suspected that relator had been performing "side work." Myhran's suspicion had been aroused by relator's systematic failure to respond to phone calls; his rearranging scheduled appointments with BBR's customers without informing his supervisors; his failure to turn in inventory and mileage logs; and BBR's inability to account for inventory that had been placed in relator's van. Myhran admitted, however, that BBR had no written rule or policy requiring relator to provide detailed invoices, inventory logs, or mileage logs, and that no written warning had been issued to relator prior to his termination. On November 28, 2011, Myhran terminated relator for performing "side work" on November 23 and 25.
Relator claims that he was not performing "side work," but was performing work for Jonathan Honerbrink, part-owner of BBR Plumbing and Install and former employee of BBR, at the direction of John Brown. Relator stated that he performed a total of four jobs for Honerbrink, and was paid for each job with a $250 gift card for a total of $1,000. Relator claims that he was instructed by Brown not to tell Myhran about the work that he was doing for Honerbrink. Relator did not fully understand why the work was being kept secret, but assumed that it related to debts Brown may have owed to Honerbrink.
Myhran admitted that it was Honerbrink for whom he suspected relator was working; Myhran had been made aware in mid-November that relator had recently pulled a permit for a job of Honerbrink's. Myhran also conceded that at the meeting where relator was terminated, relator claimed that he had been working for Honerbrink with John Brown's permission. But Myhran also testified that John Brown had denied the existence of such an arrangement.
Other than their testimony, neither relator nor Myhran presented any other evidence at the initial evidentiary hearing. On March 28, 2012, the ULJ issued his decision concluding that relator was ineligible for unemployment benefits due to employee misconduct. The ULJ concluded that relator breached the duty of loyalty he owed BBR by using its vehicle and supplies to perform work for a competitor. The ULJ found that even if relator was given permission to perform "side work," he was not authorized to perform that work "on Brown Brothers' dime." The ULJ found that relator's testimony was not credible due to his "deceptive, vague, and ever-changing and evolving theories for his version of events." While acknowledging that BBR did not have concrete evidence of larger-scale wrongdoing, BBR was "clearly being ripped off by Dehn for a significant period of time and to a significant degree."
Relator filed a request for reconsideration of the ULJ's decision. Relator reiterated his claim that the work was performed for Honerbrink with the knowledge and permission of John Brown. Relator also contested the ULJ's determination that the work for Honerbrink was being performed "on Brown Brothers' dime," claiming that he did not use company materials or tools and performed the work in the evening or on weekends. Relator also attached two signed letters, one from David Brown, co-owner of BBR, and one from Jonathan Honerbrink. David Brown wrote that relator was performing work for "another contractor" with the permission of John Brown. He further stated that relator "has performed all duties he has been asked to do on a day to day basis. I am all for reinstating unemployment benefits for Timothy Dehn." David Brown signed the letter as president of BBR, and ...