                  Filed 1/15/19 by Clerk of Supreme Court
                       IN THE SUPREME COURT
                      STATE OF NORTH DAKOTA


                                  2019 ND 24


Linda K. Grina,                                                       Appellant

      v.

Job Service North Dakota,                                              Appellee

      and

Bismarck Gymnastics Academy,                                        Respondent


                                 No. 20180284


       Appeal from the District Court of Burleigh County, South Central Judicial
District, the Honorable Gail Hagerty, Judge.

      AFFIRMED.

      Opinion of the Court by Crothers, Justice.

      Michael R. Hoffman, Bismarck, ND, for appellant.

       Michael T. Pitcher, Office of the Attorney General, Bismarck, ND, for
appellee.
                                Grina v. Job Service
                                    No. 20180284


       Crothers, Justice.
[¶1]   Linda Grina appeals from a district court judgment affirming the denial of her
unemployment benefits. We affirm, concluding under our standard of review that a
reasoning mind could have determined Grina left her employment voluntarily and
without good cause attributable to the employer.
                                           I
[¶2]   Grina started coaching at Bismarck Gymnastics Academy in 1992. In 2015 or
2016 she was appointed interim executive director/program director with retained
coaching duties. When a new executive director was hired, Grina was instructed to
assist the executive director in acclimating to the gym and working environment. In
July 2017 the employer informed Grina she was placed on probation for failure to
assist the new executive director as instructed. A week later Grina sent a letter to the
gym’s board of directors relinquishing the interim program director title and job
duties and expressing her desire to stay employed as a coach. In August 2017 Grina
met with the gym board of directors. The board informed Grina her duties as interim
program director were not separable from her coaching duties, and if she chose to
resign as interim program director she also would be resigning from coaching. Grina
indicated she would not continue performing the duties of interim program director.
The board issued a termination letter.
[¶3]   Grina filed for unemployment benefits through Job Service. Job Service
granted Grina benefits in October 2017 after finding the employer did not show her
termination was due to misconduct. The employer appealed and a Job Service
appeals referee conducted a hearing in December 2017. The referee reversed the
initial decision and found Grina voluntarily left her employment without good cause
attributable to the employer. Grina appealed the referee’s decision to the Job Service
North Dakota Bureau and sought to introduce new evidence, including emails and a

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text message referencing Grina being “let go” or “terminated.” The Bureau added the
documents to the claim file but did not consider the information in its decision
affirming the referee’s determination. Grina appealed to the district court. On
May 21, 2018, the district court affirmed the Bureau’s decision denying Grina
unemployment benefits.
                                          II
[¶4]   This Court reviews a district court’s decision reviewing an administrative
agency’s decision under the standards set out in N.D.C.C. § 28-32-46. We review the
agency’s decision and record compiled before the agency while giving respect to the
district court’s sound reasoning. People to Save the Sheyenne River, Inc. v. N.D.
Dep’t of Health, 2005 ND 104, ¶ 15, 697 N.W.2d 319. This Court will not make
independent findings of fact or substitute judgment for that of the agency. Von Ruden
v. North Dakota Workforce Safety and Ins. Fund, 2008 ND 166, ¶ 8, 755 N.W.2d 885.
The appeals referee is the factfinder and must decide issues of credibility and
determine the weight of the evidence. Schweitzer v. Job Serv. North Dakota,
2009 ND 139, ¶ 15, 770 N.W.2d 238. On appeal, we determine whether a reasoning
mind reasonably could have determined the referee’s factual conclusions were proved
by the weight of the evidence.       Id. (quoting Spectrum Care LLC v. Stevick,
2006 ND 155, ¶ 11, 718 N.W.2d 593). Under our standard of review the question is
whether a reasoning mind reasonably could have determined Grina voluntarily left her
employment without showing good cause attributable to her employer.
                                         III
[¶5]   Grina argues she is entitled to unemployment benefits because the weight of
the evidence does not support the appeals referee’s decision that she voluntarily left
her position. Under N.D.C.C. § 52-06-02(1), Job Service will disqualify individuals
from receiving unemployment benefits if the person “voluntarily quit without good
cause attributable to the employer.”      Whether employee separation is due to
termination or voluntary reasons is a factual decision for Job Service. Hjelden v. Job
Service North Dakota, 1999 ND 234, ¶ 8, 603 N.W.2d 500. If Job Service determines

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the employee quit, the employee is ineligible for benefits unless the employee shows
good cause attributable to the employer. Id. If Job Service determines the employee
separation is a result of termination, the employee is eligible for benefits unless the
employer proves misconduct. Id. If confronted with disputed facts, we defer to the
referee’s findings and consider only whether a reasoning mind could have reasonably
determined the factual conclusions were proved by a preponderance of the evidence.
Holiday Inn v. Karch, 514 N.W.2d 374, 376 (N.D. 1994).
[¶6]   A reasoning mind could rationally find Grina voluntarily quit. A gym board
member testified although the employer placed Grina on probation for failure to help
the new executive director, the employer intended to keep Grina on as a program
director with coaching responsibilities. Grina responded in writing stating she was
relinquishing her title and duties as interim program director but intended to keep her
position as coach. The board subsequently informed Grina no coaching positions
were available aside from that associated with the program director position. Job
Service found Grina’s decision was equivalent to quitting because her primary
position and job duties were that of program director. Job Service determined the
greater weight of evidence in the record reflected Grina voluntarily quit employment
at the point when she resigned as interim program director.
                                          IV
[¶7]   Grina argues that new information submitted on appeal to the Bureau supports
a finding that the employer terminated her position and that the Bureau erred by not
considering the newly submitted documents.
[¶8]   An administrative hearing officer has broad discretion to control the admission
of evidence, and we review an officer’s evidentiary ruling for an abuse of discretion.
May v. Sprynczynatyk, 2005 ND 76, ¶ 24, 695 N.W.2d 196. In proceedings before an
administrative agency, parties shall have “the opportunity to respond, present
evidence and argument, conduct cross-examination, and submit rebuttal evidence[.]”
N.D.C.C. § 28-32-35. The hearing must be conducted in a “manner as to ascertain the
substantial rights of the parties.” N.D.C.C. § 52-06-20.

                                          3
[¶9]   When the employer appealed the initial award of benefits to the appeals
referee, Job Service provided Grina with an unemployment insurance appeals guide.
This guide contained information regarding hearing preparation, including exhibit
submission. Grina did not submit documents before or at the hearing, and did not
object to closing the hearing record. It was only after the referee’s decision that Grina
requested Bureau review and submitted new information, including emails and text
messages referencing Grina being “let go” or “terminated.”
[¶10] The Bureau’s response indicated “[t]he review by [the Bureau] also involves
an examination of evidence and testimony in the record up to and including the
[r]eferee’s decision.” The Bureau’s subsequent decision affirming the referee stated
“[a] review was conducted on the basis of information contained in the record.” The
Bureau used the wide discretion granted under N.D.C.C. § 52-06-19 to not consider
the newly presented documents in its review, and no abuse of discretion has been
shown.
[¶11] Grina appears to argue the district court erred in failing to consider her new
information. Section 28-32-45, N.D.C.C., provides a method in the district court for
allowing additional evidence into the record on appeal:
       “If an application for leave to offer additional testimony, written
       statements, documents, exhibits, or other evidence is made to the court
       in which an appeal from a determination of an administrative agency is
       pending, and it is shown to the satisfaction of the court that the
       additional evidence is relevant and material and that there were
       reasonable grounds for the failure to offer the evidence in the hearing
       or proceeding, or that the evidence is relevant and material to the issues
       involved and was rejected or excluded by the agency, the court may
       order that the additional evidence be taken, heard, and considered by
       the agency on terms and conditions as the court may deem proper.”
Grina did not attempt to supplement the record by using the procedure provided by
N.D.C.C. § 28-32-45. We note that even when used, this statute is consistent with our
separation of powers holdings in other administrative appeals because a motion under
N.D.C.C. § 28-32-45 would result in the new evidence being reviewed by the agency
and not the district court. See Linser v. Office of Attorney Gen., 2003 ND 195, ¶ 13,

                                           4
672 N.W.2d 643 (recognizing the constitutional doctrine of separation of powers does
not allow the court to make independent findings of fact or substitute our judgment
for that of the factfinder).
[¶12] Here, the Bureau received the documents, placed them in the claim file, but did
not consider the information in its review. It would be a better practice for an agency
to expressly state whether it is including or excluding newly presented information
when making its decision so interested parties could decide whether a motion to the
district court under N.D.C.C. § 28-32-45 is appropriate. However, under the facts of
this case we are able to determine the Bureau did not consider the new information
and the district court was not asked under N.D.C.C. § 28-32-45 to order
supplementation of the record.
                                          V
[¶13] A reasoning mind reasonably could have determined Grina voluntarily left her
employment without showing good cause attributable to the employer. The referee’s
findings of fact are supported by a preponderance of the evidence and those findings
support the decision of the Bureau. Under our standard of review a reasoning mind
could have determined Grina left her employment voluntarily and without good cause
attributable to the employer. The district court’s judgment is affirmed.
[¶14] Daniel J. Crothers
      Lisa Fair McEvers
      Jon J. Jensen
      Jerod E. Tufte
      Gerald W. VandeWalle, C.J.




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