                           This opinion will be unpublished and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
                                      A15-1384

                                      Chrystal Gardner,
                                         Appellant,

                                              vs.

                                      Accend Services,
                                        Respondent.

                                    Filed July 18, 2016
                                         Affirmed
                                     Bratvold, Judge

                              St. Louis County District Court
                                File No. 69DU-CV-15-138

Chrystal Gardner, Duluth, Minnesota (pro se appellant)

Craig S. Hunter, Northland Law, Duluth, Minnesota (for respondent)


       Considered and decided by Schellhas, Presiding Judge; Reyes, Judge; and

Bratvold, Judge.

                         UNPUBLISHED OPINION

BRATVOLD, Judge

       Appellant Chrystal Gardner challenges the district court’s denial of her motion for

a new trial. She asserts that the district court erred in determining that she was not entitled

to unpaid wages; compensation for unused, accrued paid time off; or a statutory penalty

under Minn. Stat. § 181.13 (2014). Because the record supports the verdict in favor of
Gardner’s former employer, the district court did not abuse its discretion in denying her

motion. We affirm.

                                          FACTS

       This case arises from Chrystal Gardner’s employment as a counselor for respondent

Accend Services, where she worked until June 2014. Accend is headquartered in Duluth

and provides behavioral-health psychotherapy and rehabilitative mental-health services.

       Accend terminated Gardner’s employment on June 27, 2014. According to Accend

CEO and President Michael Clevette, he met with Gardner “in late June relating to

performance problems, complaints from clients, as well as services that were exceeding

the clinically approved times, [and] a number of other issues relating to performance.”

After their meeting, Clevette required Gardner to meet with her clinical supervisor on

June 24. Gardner did not appear for the meeting and later “indicated to [Accend] that she

. . . simply refused to attend the meeting.” Upon learning of her refusal to appear, Clevette

terminated Gardner for misconduct. The same day, Accend disabled Gardner’s access to

the electronic medical-records system through which counselors logged their time and

services.

       While preparing Gardner’s final paycheck, Accend discovered that her electronic

records reflected one week of fully documented, billable hours of mental-health services

and one week of time, June 23 to June 27, for which the documentation of her services was

incomplete.

       In early July, Accend paid Gardner for one week of fully documented, billable

hours. Because Gardner had not completed the documentation for her time between


                                             2
June 23 and June 27, however, Accend did not pay her for that week. In an effort to

complete the required documentation, several Accend employees attempted to contact

Gardner by phone, email, and text message to arrange for her access to Accend’s electronic

medical-records system. At one point, Accend reenabled Gardner’s access to the system.

Gardner did not respond to any of Accend’s communication attempts.

       Gardner took the position that she was not required to complete the documentation

of her services to be compensated for the hours between June 23 and June 27. In an email

to an Accend administrative assistant on July 9, 2014, Gardner stated that “with the request

to complete documentation, I will not be performing or rendering additional services to

Accend Services Inc.” Relying on Minn. Stat. § 181.13 (2014), she demanded a check for

her hours from June 23 to June 27. Accend did not pay Gardner for this week.

       Gardner brought an unpaid-wages claim in conciliation court. Gardner claimed that

she was entitled to both the unpaid wages from June 23 to June 27 and the statutory penalty

provided by Minn. Stat. § 181.13. After the conciliation court awarded her partial recovery,

she removed the case to district court.

       At the district court, Gardner additionally argued that she was entitled to

compensation for unused, accrued paid time off. At the one-day court trial, where Gardner

represented herself, Gardner and Clevette testified. Following trial, the district court

ordered entry of judgment in favor of Accend, denying Gardner all recovery. 1 With the




1
  Gardner sought $905.74 in unpaid wages; $1,407.78 for accrued, unused paid time off;
and $1,662.37 for the statutory penalty under Minn. Stat. § 181.13, for a total of $3,975.89.

                                             3
assistance of counsel, Gardner moved for a new trial, which the district court denied.

Gardner now appeals.

                                       DECISION

       We review a district court’s denial of a new-trial motion for abuse of discretion.

Moorhead Econ. Dev. Auth. v. Anda, 789 N.W.2d 860, 892 (Minn. 2010). In doing so, this

court reviews the district court’s factual findings for clear error and its legal determinations

de novo. Rasmussen v. Two Harbors Fish Co., 832 N.W.2d 790, 797 (Minn. 2013).

       A district court may grant a party’s new-trial motion on any one of seven available

grounds. Minn. R. Civ. P. 59.01. Gardner argued that she is entitled to a new trial because

“[t]he verdict . . . is not justified by the evidence, or is contrary to law.” Minn. R. Civ. P.

59.01(g). When a new-trial motion is made following a court trial, the judge is asked to

determine whether the weight of the evidence supports the initial decision. See Clifford v.

Geritom Med, Inc., 681 N.W.2d 680, 686 (Minn. 2004) (“[A] motion for a new trial gives

a district court the opportunity to correct errors without subjecting the parties to the expense

and inconvenience associated with an appeal.”). In fact, the trial judge following a court

trial need not grant a new trial but may modify findings and enter a new judgment. Minn.

R. Civ. P. 59.01; see, e.g., Johnson v. Johnson, 223 Minn. 420, 424–25, 27 N.W.2d 289,

292 (1947) (noting that, after a court trial, a party may move the district court to modify its

legal conclusions to correspond with its factual findings). Our scope of review is limited to

determining whether the findings of fact support the conclusions made by the trial court.

Johnson, 223 Minn. at 424–25, 27 N.W.2d at 292.




                                               4
       Gardner argues that the district court abused its discretion in denying her motion for

a new trial and challenges the district court’s conclusions that (1) she did not prove by a

preponderance of the evidence that she was entitled to compensation for the hours between

June 23 to June 27, 2014; (2) she was not entitled to compensation for her unused, accrued

paid time off upon her discharge; and (3) Accend was not liable for the statutory penalty

for unpaid wages. We address each argument in turn.

       Unpaid Wages

       Discharged employees are entitled to prompt payment of any unpaid wages upon

their separation from an employer. Minn. Stat. § 181.13(a) (2014). Whether the wages have

been earned is governed by the employment contract between the parties. Lee v. Fresenius

Med. Care, Inc., 741 N.W.2d 117, 127–28 (Minn. 2007). Where, as here, neither party

introduces evidence of a written agreement, “the burden of proof shall be upon the

employer to establish the terms of the verbal agreement in case of a dispute with the

employee as to its terms.” Minn. Stat. § 181.56 (2014). The existence and terms of an oral

contract are factual issues. Rios v. Jennie-O Turkey Store, Inc., 793 N.W.2d 309, 315

(Minn. App. 2011).

       Here, the district court found that “part of the basis on which Ms. Gardner was to

be paid involved documenting services provided to clients.” This finding is supported by

the evidence. Regarding the parties’ agreement, Clevette testified that Accend’s pay policy

has been the same since its establishment in 2006 and Accend pays its counselors an hourly

rate for the billable mental-health services they provide clients. Counselors are required to

enter billing information in Accend’s electronic medical-records system and must complete


                                             5
the documentation within 24 hours of providing the client service. Documentation must

specify any travel time associated with the session, the amount of time spent with a client,

and the services provided. Only after a counselor has fully documented and confirmed his

or her time as an accurate delivery of a medical service will Accend pay the counselor for

his or her hours. Clevette also testified that Accend may bill for the services only if the

counselor completes documentation of services. He testified that Accend does not

compensate counselors for additional time spent fully documenting their services.

       In her own direct testimony, Gardner described Accend’s pay policy consistently

with Clevette’s testimony. Additionally, as noted by the district court, the trial exhibits

(i.e., letters and emails) established that Gardner understood Accend’s requirement.

       On this record, the district court correctly concluded that the parties’ agreement

required Gardner to complete the electronic documentation of her services before Accend

was obligated to compensate her for the hours. Stated in other terms, complete

documentation was a condition precedent to Accend’s payment obligation to Gardner. See

Schwickert, Inc. v. Winnebago Seniors, Ltd., 680 N.W.2d 79, 84 (Minn. 2004) (citing

Restatement (Second) of Contracts § 237 (1981) to reiterate that “remaining duties of one

party to a contract are conditioned on there being no previous ‘uncured material failure’ by

the other party”). Further, it is undisputed that, under the parties’ agreement, Accend did

not compensate counselors for additional time spent documenting their services.

       Because the parties’ agreement included a condition precedent, Minnesota law

requires that Gardner must prove that she had completed performance before she was

entitled to demand payment by Accend. See Briggs Transp. Co v. Ranzenberger, 299 Minn.


                                             6
127, 129, 217 N.W.2d 198, 200 (1974) (stating that, to recover, plaintiff must establish

“(a) the formation of the contract; (b) performance by plaintiff of any conditions precedent

to his right to demand performance by defendant; and (c) a breach of the contract by

defendant” (emphasis added)).

       The record also supports the district court’s determination that Gardner did not

complete the documentation of her services for the period of June 23 to June 27, 2014.

Accend promptly paid Gardner for her fully documented hours. But the district court found

that Gardner refused to complete the remaining documentation when Accend asked her to

do so, despite being given multiple opportunities to access the electronic medical-records

system. Based on these findings, the district court concluded that Gardner was not due

wages for June 23 to June 27.

       Gardner challenges the district court’s conclusion, arguing that completing the

documentation of her services amounted to work, which Accend could not require her to

perform once it terminated her employment. She maintains that she is entitled to

compensation because she delivered approximately 20 hours of services from June 23 to

June 27. Gardner’s argument fails because her refusal to complete the documentation

defeats her claim for breach and excuses Accend from compensating her for any time

during this period. See, e.g., Schwickert, 680 N.W.2d at 86 (holding that insurer’s erroneous

denial of coverage relieved insured of contractual obligation to protect insurer’s

subrogation rights).

       In sum, the district court did not abuse its discretion in denying Gardner’s motion

for a new trial. Gardner did not meet her burden of proving by a preponderance of the


                                             7
evidence that she is entitled to payment for the week of June 23 to June 27, and the district

court did not err in its factual determinations or legal conclusions.

       Unused, Accrued Paid Time Off

       An employer’s “liability as to vacation-pay rights is wholly contractual.” Tynan v.

KSTP, Inc., 247 Minn. 168, 177, 77 N.W.2d 200, 206 (1956). The Minnesota Supreme

Court has stated,

              when employers choose to offer paid time off as a benefit,
              employers and employees can contract for the circumstances
              under which employees are entitled to paid time off and
              payment in lieu of paid time off, so long as the contract
              provisions are not prohibited by or otherwise in conflict with a
              statute.

Lee, 741 N.W.2d at 123.

       Here, Clevette’s testimony established the relevant terms of Accend’s paid-time-off

policy. According to Clevette, Accend notified Gardner when she accepted her current

position that “PTO would not be paid out to employees who left without adequate notice

or who were terminated for misconduct.” Clevette also testified that Gardner was

terminated for misconduct. Clevette added that, as a result of Gardner’s termination for

misconduct, she was ineligible for compensation for any accrued paid time off.

       The district court relied on Clevette’s undisputed testimony in denying Gardner’s

claim. Gardner argued that Accend’s policy was contrary to Minnesota law, relying on Lee

v. Fresenius Med. Care, a Minnesota Supreme Court case that states “we now conclude

that paid time off or vacation pay constitutes wages for purposes of section 181.13(a).” Id.

at 124–25. The district court determined that this quote is taken out of context and does not



                                              8
support Gardner’s claim. In this appeal, Gardner again relies on Lee and also asserts that

an unemployment-law judge’s decision establishes that she was not terminated for

misconduct.

       Gardner’s challenges fail for at least two reasons. First, Gardner relies on

impermissible evidence to claim that she was not terminated for misconduct. At trial,

Gardner twice attempted to introduce evidence of an unemployment-law judge’s decision

granting her unemployment benefits; opposing counsel objected, and the district court

sustained the objections. Gardner offered no other evidence on the reason for her

termination. On appeal, she again asserted the unemployment-law judge’s decision in her

brief and addendum. Accend successfully objected by motion, obtaining this court’s order

striking four documents from Gardner’s addendum.

       Minnesota law provides that, “regardless of whether the action involves the same or

related parties or involves the same facts,” an unemployment-law judge’s decision is not

admissible in any other forum nor binding as collateral estoppel. Minn. Stat. § 268.105,

subd. 5a (2014). The district court therefore correctly excluded this evidence. Moreover,

the unemployment-law judge’s decision is not in the record and therefore will not be

considered on appeal. See Fabio v. Bellomo, 489 N.W.2d 241, 246 (Minn. App. 1992),

aff’d, 504 N.W.2d 758 (Minn. 1993).

       Second, the district court properly interpreted and applied Lee, in which the

employee handbook “specif[ied] that an employee who resigns without giving proper

notice or who is terminated for misconduct will not be eligible for payment of earned but

unused paid time off.” Id. at 120. Fresenius terminated Lee for a “pattern of behavior” that


                                             9
resulted in “performance and patient safety issues,” which it concluded was misconduct;

Fresenius then refused to pay Lee for her unused, accrued paid time off upon her discharge.

Id. at 120–21.

       The supreme court determined that, “[u]nder the terms of Lee’s employment

contract with Fresenius, Lee is not entitled to payment in lieu of her paid time off because

the terminated-for-misconduct provision in the employment contract explicitly makes Lee

ineligible for payment.” Id. at 123. The supreme court then reinstated the district court’s

determination that Lee was not entitled to payment in lieu of unused paid time off. Id. at

130.

       Like the employee handbook in Lee, Gardner’s employment agreement with Accend

contained a terminated-for-misconduct provision, which disqualified such employees from

cashing out their unused, accrued paid time off upon discharge. Because Accend

terminated Gardner for misconduct, she had no contractual claim to compensation for her

unused, accrued paid time off.

       Statutory Penalty

       Under Minnesota law, once an employer discharges an employee, “the wages or

commissions actually earned and unpaid at the time of the discharge are immediately due

and payable upon demand of the employee.” Minn. Stat. § 181.13(a). If an employer does

not pay the earned, unpaid wages within 24 hours, the employer is “in default” and is liable

to the discharged employee for a statutory penalty in addition to the unpaid wages. Id. For

the purposes of enforcing the statutory penalty, the employment contract governs whether




                                            10
wages were “actually earned and unpaid.” Lee, 741 N.W.2d at 136; accord Chambers v.

Travelers Companies, Inc., 668 F.3d 559, 566 (8th Cir. 2012).

         Accend is not liable for the statutory penalty because it was never “in default.”

Under the terms of the employment contract, Gardner had not actually earned the unpaid

wages she sought because she failed to complete the documentation requirement.

Regarding the paid-time-off compensation, Clevette’s undisputed testimony established

that Gardner was ineligible for it under the terminated-for-misconduct provision of the

parties’ employment agreement. Accordingly, Accend did not fail to promptly deliver any

unpaid wages at the time of Gardner’s discharge, thus it cannot be liable for the

corresponding statutory penalty, and the district court did not err in its determination.

         The district court did not abuse its discretion in denying Gardner’s motion for a new

trial.

         Affirmed.




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