                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2014).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A15-1380

                                    Mikel Thorstenson,
                                       Respondent,

                                            vs.

                                  Waterford Oil Co., Inc.,
                                         Relator,

                 Department of Employment and Economic Development,
                                     Respondent.

                                   Filed April 11, 2016
                                        Affirmed
                                   Smith, Tracy, Judge

                  Department of Employment and Economic Development
                                  File No. 33575864-3

Jason S. Raether, John J. Steffenhagen, Hellmuth & Johnson, PLLC, Edina, Minnesota (for
relator)

Lee B. Nelson, St. Paul, Minnesota (for respondent Department)

Mikel Thorstenson, Spring Valley, Minnesota (pro se respondent)

         Considered and decided by Reyes, Presiding Judge; Ross, Judge; and Smith, Tracy,

Judge.
                         UNPUBLISHED OPINION

SMITH, TRACY, Judge

       Relator Waterford Oil Company (Waterford) appeals an unemployment-law judge’s

(ULJ) decision that respondent Mikel Thorstenson did not engage in employment

misconduct rendering him ineligible for unemployment benefits. Because we conclude

that the ULJ’s findings are substantially supported by the evidence, the ULJ did not err as

a matter of law in determining eligibility, and the ULJ conducted a fair hearing, we affirm.

                                          FACTS

       Waterford hired Thorstenson on March 10, 2015, as a fuel-delivery driver. During

the pre-hire interview, Waterford’s vice president, Mike Lynch, told Thorstenson several

times that the position required him to drive a nine-speed manual-transmission truck.

Thorstenson stated that he would have no problem driving the truck because he had driven

a nine-speed manual at a previous job in early 2015. Thorstenson had the appropriate

driver’s license and endorsements to drive the truck, but he would have to pass a mandatory

driver’s safety test for hazardous-material carriers.

       After he was hired, Thorstenson underwent training at Waterford. During the

training period, and while he was a passenger in the truck, Thorstenson fell asleep on a

number of occasions. He did not fall asleep when he was behind the wheel. Thorstenson

drove the truck approximately 100 miles during training.

       Alex Wiese, Waterford’s lead driver, rode with Thorstenson during his training and

came to the conclusion that Thorstenson was not acceptably adept at driving the truck.

Thorstenson was able to drive the truck but had problems changing gears and driving in


                                              2
reverse. He also stalled the truck. Waterford believed that Thorstenson would be unable

to pass the mandatory driver’s safety test for hazardous-material carriers and discharged

Thorstenson on March 31, 2015.

         Thorstenson then applied and was determined eligible for unemployment benefits.

Waterford appealed that determination to respondent Minnesota Department of

Employment and Economic Development (DEED). A ULJ held an evidentiary hearing on

the issue of whether Thorstenson was discharged for disqualifying misconduct.

Thorstenson and Waterford appeared without counsel.           Waterford maintained that

Thorstenson made material misrepresentations during his interview and that he slept on the

job. The ULJ questioned both parties and gave the parties opportunities to question each

other.

         On June 1, 2015, the ULJ issued a decision, determining that Thorstenson was not

discharged for misconduct and was therefore eligible for benefits. The ULJ found that

Thorstenson did not lie about his driving ability but thought that, based on his previous

experience, he possessed sufficient driving skills. The ULJ further found that Thorstenson

could drive the truck, just not to Waterford’s expectations. The ULJ found Thorstenson

credible because his testimony was “consistent, seemed more likely under the

circumstances and followed a more logical chain of events.”

         Waterford requested reconsideration of the ULJ’s decision, challenging the ULJ’s

credibility determinations and arguing that the ULJ should have considered Thorstenson’s

sleeping on the job as a basis for termination. After reconsideration, the ULJ found that




                                             3
Thorstenson’s driving, not his sleeping on the job, was the actual reason for termination

and affirmed the earlier decision that Thorstenson did not lie about his driving ability.

       Waterford appeals.

                                      DECISION

       Waterford appeals, by petition for a writ of certiorari, the ULJ’s determination that

Thorstenson did not engage in disqualifying misconduct. We may reverse or modify a

ULJ’s decision if the relator’s substantial rights may have been prejudiced because, among

other things, the ULJ’s decision is affected by an error of law or unsupported by substantial

evidence in view of the entire record. Minn. Stat. § 268.105, subd. 7(d) (Supp. 2015).

       An employee discharged for employment misconduct is ineligible for

unemployment benefits. Minn. Stat. § 268.095, subd. 4(1) (2014). Whether an employee

committed employment misconduct presents a mixed question of fact and law. Skarhus v.

Davanni’s Inc., 721 N.W.2d 340, 344 (Minn. App. 2006). “Whether the employee

committed a particular act is a question of fact.” Id. We review a ULJ’s factual findings

“in the light most favorable to the decision” and will not disturb findings that are

substantially supported by the record. Id. Whether a particular act constitutes disqualifying

misconduct is a question of law, which we review de novo. Id. We defer to a ULJ’s

credibility determinations. Id.

                                              I.

       Waterford argues that the ULJ erred in not finding employment misconduct.

“Employment misconduct means any intentional, negligent, or indifferent conduct, on the

job or off the job that displays clearly: (1) a serious violation of the standards of behavior


                                              4
the employer has the right to reasonably expect of the employee; or (2) a substantial lack

of concern for the employment.” Minn. Stat. § 268.095, subd. 6(a) (2014). Waterford

argues that Thorstenson engaged in two types of misconduct—sleeping on the job and pre-

hire misrepresentation.

A.     Sleeping on the Job

       Waterford argues that the factual finding on reconsideration that Thorstenson fell

asleep on the job required the legal conclusion of disqualifying misconduct. Misconduct

that is not the basis for termination, however, is not disqualifying misconduct. See

Harringer v. AA Portable Truck & Trailer Repair, Inc., 379 N.W.2d 222, 224 (Minn. App.

1985) (noting that “an employee’s misconduct is irrelevant to a determination of

unemployment compensation benefits if that conduct was not in fact the reason for the

employee’s discharge”).

       Here, the ULJ originally found that Thorstenson’s poor driving was the reason for

discharge. In the order of affirmation, the ULJ acknowledged that Thorstenson fell asleep

during training but rejected Waterford’s request to consider Thorstenson’s sleeping as the

reason for discharge. “The cause of an employee’s separation is a question of fact.”

Meehan v. Lull Corp., 466 N.W.2d 14, 16 (Minn. App. 1991), review denied (Minn.

Apr. 18, 1991).    Accordingly, we will not disturb the ULJ’s determination that

Thorstenson’s driving led to his discharge if the finding is substantially supported by the

record. See Skarhus, 721 N.W.2d at 344 “Substantial evidence is such relevant evidence

as a reasonable mind might accept as adequate to support a conclusion, or more than a




                                            5
scintilla of evidence.” Moore Assocs., LLC v. Comm’r of Econ. Sec., 545 N.W.2d 389, 392

(Minn. App. 1996) (quotation omitted).

      The ULJ questioned Waterford’s vice president, Lynch, about the reason for

Thorstenson’s termination:

             [ULJ]: In a brief sentence or sentences will you state the reason
             or reasons for the discharge and then we’ll get to testimony
             about that specifically.
             [LYNCH]: Okay, there’s a bunch of different things but the
             primary reason [is] when he was hired he was basically on a
             probationary that he had to pass a federal driver[’]s exam
             before he’s allowed to transport hazardous materials. And
             therefore he could not drive, and therefore I could not pass him
             on the exam and that is why he lost his job.
             ....
             [LYNCH]: The primary reason, forget about anything else, the
             primary reason for loss of employment [is because] there’s a
             Minnesota statute that I have, he has to pass the driver
             certificate and he can’t do it.
             [ULJ]: I see, so that’s the real reason he was discharged, is that
             correct?
             [Lynch]: Yeah, just stick with that.
             [ULJ]: Okay, then we won’t go into any other reasons, we’ve
             clarified that.

      The timing of the discharge supports the finding that Thorstenson’s driving, not

sleeping on the job, was the actual reason. The evidence shows that Waterford did not

immediately discharge Thorstenson when he fell asleep while a passenger during training.

Rather, Waterford continued Thorstenson’s training, and it was not until after Thorstenson

was behind the wheel that Waterford decided to terminate his employment.

      The record substantially supports the ULJ’s finding that Thorstenson’s driving, not

sleeping, constituted the reason for discharge. We will not disturb the ULJ’s well-

supported finding. See Skarhus, 721 N.W.2d at 344. Because sleeping on the job was not


                                             6
the actual reason for termination, we do not address Waterford’s argument that

Thorstenson’s sleeping as a matter of law would constitute disqualifying misconduct. See

Harringer, 379 N.W.2d at 224.

B.     Pre-Hire Misrepresentation

       Waterford     contends     that    Thorstenson     made     disqualifying     material

misrepresentations during his interview. “A person making a material misrepresentation

during the hiring process is . . . ineligible for unemployment benefits if he or she is later

discharged because of the misrepresentation.” Santillana v. Cent. Minn. Council on Aging,

791 N.W.2d 303, 307 (Minn. App. 2010). Waterford’s argument questions the ULJ’s

credibility determinations, factual findings about Thorstenson’s pre-hire interview, and

legal conclusion that Thorstenson’s interview statements did not constitute employment

misconduct.

       Waterford argues that we should reverse the ULJ’s determination that Thorstenson

was more credible than Waterford’s representatives. “When the credibility of a witness

testifying in a 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.

1a(a) (2014). We defer to a ULJ’s credibility determinations, Skarhus, 721 N.W.2d at 344,

and will affirm if the ULJ “provide[s] the statutorily required reason for [his] credibility

determination,” see Ywswf v. Teleplan Wireless Servs., Inc., 726 N.W.2d 525, 533 (Minn.

App. 2007).

       The ULJ found that Thorstenson’s testimony was “consistent, seemed more likely

under the circumstances and followed a more logical chain of events.” In contrast, the ULJ


                                              7
found that Waterford’s representatives’ testimony was “inconsistent and appeared to be

exaggerated and overly misleading.” Accordingly, the ULJ concluded that Waterford’s

claim that Thorstenson lied during his pre-hire interview was “not credible.”

       Determining credibility in the face of conflicting testimony is “the exclusive

province of the ULJ.” Skarhus, 721 N.W.2d at 345. We have thoroughly reviewed the

transcript. The ULJ heard testimony from both parties and noted the inconsistencies and

exaggerations in the testimony from Waterford’s representatives. We see no reason to

disturb the ULJ’s credibility determination. See Ywswf, 726 N.W.2d at 533.

       Waterford also argues that the ULJ’s factual findings were unsupported by the

evidence. The ULJ found that Waterford explained several times to Thorstenson that he

would be driving a nine-speed manual-transmission truck, that Thorstenson “indicated

[this] . . . would not be an issue for him,” and that Thorstenson “believed that his prior

[driving experience] was sufficient.”

       As noted above, the ULJ exercised his discretion to discredit Waterford’s claim that

Thorstenson lied during the pre-hire interview. Moreover, the record substantially supports

the ULJ’s findings on Thorstenson’s statements. Lynch testified that he asked Thorstenson

multiple times if Thorstenson could drive a nine-speed manual-transmission truck.

Thorstenson testified that he told Lynch that he could drive the truck based on his previous

experience. Lynch felt that Thorstenson had “lied” to him and that Thorstenson “just

couldn’t drive.”    But Wiese later clarified that Thorstenson had driven the truck

approximately 100 miles during training and had “[s]ome sort” of experience, but that




                                             8
Thorstenson lacked the degree of driving expertise that Waterford expected. We see no

reason to disturb the ULJ’s findings. See Skarhus, 721 N.W.2d at 344.

       Waterford argues that, as a matter of law, the ULJ should have found a disqualifying

misrepresentation since the ULJ found that Thorstenson was not able to drive the truck to

Waterford’s expectations despite his having represented in his interview that he would not

have an issue driving the truck. Thorstenson may have overestimated the driving skills he

had developed with his previous employer. His overestimation, however, does not amount

to a disqualifying misrepresentation of material fact. “[S]imple unsatisfactory conduct” or

“conduct that was a consequence of the applicant’s inability or incapacity” does not amount

to disqualifying misconduct. Minn. Stat. § 268.095, subd. 6(b)(3), (5) (2014). The ULJ

did not err in concluding that, while Thorstenson’s driving failed to live up to Waterford’s

expectations, he did not engage in disqualifying misconduct in the interview. See id.

                                             II.

       Waterford also argues that the ULJ failed to conduct a fair hearing and requests that

we remand for further proceedings. A ULJ must conduct the hearing “as an evidence-

gathering inquiry.” Minn. R. 3310.2921 (2015). The ULJ must assist parties with

presenting their evidence and “must ensure that all relevant facts are clearly and fully

developed.” Id. But “like all judicial and quasi-judicial fact-gathering endeavors, [the

hearing] is still adversarial and requires the [ULJ] to maintain neutrality to assure fairness

to all parties.” Stassen v. Lone Mountain Truck Leasing, LLC, 814 N.W.2d 25, 32 (Minn.

App. 2012).




                                              9
       Waterford contends that the ULJ failed to adequately develop the record about the

expectations it expressed during Thorstenson’s interview. The ULJ questioned Lynch

about Thorstenson’s pre-hire interview five times, heard Lynch testify that he repeatedly

explained the importance of driving a nine-speed manual-transmission truck, and made no

attempt to stop testimony about Thorstenson’s pre-hire interview. Furthermore, the ULJ

questioned Thorstenson about the interview two times. Based on this questioning, the ULJ

found that Lynch explained several times to Thorstenson that the job required driving a

nine-speed manual-transmission truck. Waterford had multiple opportunities to bring any

of its other expectations to the ULJ’s attention but did not do so. The ULJ adequately

developed the record on Waterford’s expectations.

       Waterford also argues that the ULJ failed to develop the record on Thorstenson’s

understanding of his driving ability in relation to Waterford’s expectations. Waterford’s

argument rests on an incomplete portrayal of the hearing. The ULJ inquired about

Thorstenson’s previous driving experience and gave Waterford an opportunity to question

Thorstenson on this point. The ULJ also elicited specific facts and made corresponding

findings about Thorstenson’s previous driving experience including its length of time,

temporal proximity, location, that it had been Thorstenson’s first experience driving a nine-

speed manual-transmission truck, and that he was able to drive well enough to make

deliveries for his previous employer.      We see no failure to develop the record on

Thorstenson’s understanding of his driving ability.

       Waterford’s final contention is that the ULJ failed to develop the record regarding

whether Thorstenson’s sleeping was a factor in Waterford’s termination decision. The ULJ


                                             10
thoroughly questioned Lynch before concluding that Thorstenson’s driving was the reason

for his termination.       Additionally, the ULJ heard testimony from Waterford’s

representatives and Thorstenson about his sleeping during training, and allowed Waterford

to question Thorstenson on that point. In the order of affirmation, the ULJ explained that,

in light of the entire record, sleeping was not the reason for Thorstenson’s termination. The

ULJ did not fail to develop the record on Thorstenson’s sleeping.

       In sum, the ULJ questioned both parties regarding the relevant issues, gave

Waterford the opportunity to question Thorstenson, and did not limit the testimony of

Waterford’s representatives. “The ULJ met [his] obligation to assist [Waterford] without

losing sight of the neutrality of [his] role.” See id.

       Affirmed.




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