                         This opinion will be unpublished and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
                                    A14-0967

                                    Margaret Acker,
                                       Relator,

                                           vs.

                                 Inter City Oil Co., Inc.,
                                       Respondent,

                Department of Employment and Economic Development,
                                    Respondent.

                                  Filed March 9, 2015
                                        Affirmed
                                      Smith, Judge

                Department of Employment and Economic Development
                                File No. 31794638-5

Margaret Acker, St. Paul, Minnesota (pro se relator)

Inter City Oil Co., Inc., Duluth, Minnesota (respondent)

Lee B. Nelson, Department of Employment and Economic Development, St. Paul,
Minnesota (for respondent department)

      Considered and decided by Bjorkman, Presiding Judge; Smith, Judge; and

Klaphake, Judge.*




*
 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                        UNPUBLISHED OPINION

SMITH, Judge

      We affirm the determination of the unemployment law judge (ULJ) that relator is

ineligible for employment benefits because the record supports the ULJ’s finding that

relator quit her employment.

                                        FACTS

      Relator Margaret Acker was employed by respondent Inter City Oil Co., Inc.

(ICO) in the mid-1990s and again from December 2000 to October 24, 2013. Acker and

ICO have competing accounts of Acker’s last day of employment, with Acker asserting

that she was discharged and ICO asserting that Acker quit. The Minnesota Department

of Employment and Economic Development (DEED) determined that Acker was

ineligible for unemployment benefits because she quit her employment. Acker appealed

this determination, and a ULJ held an evidentiary hearing.

      At the hearing, Acker testified that she participated in a conference call on the

morning of October 24, 2013 with ICO Vice President of Corporate Operations Debra

Krieg and ICO’s CEO regarding “the changing of [her] hours.” Acker believed that ICO

was asking her to change her hours so that she could “babysit” another employee, and she

refused to change her hours for that reason. Following the conference call, Acker faxed a

blank sheet of hours to ICO with the words: “You can fill this out yourself and leave my

name off[.] I am DONE[.]” According to Acker, she meant only that she was done

discussing the change in hours.




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       Acker testified that ICO’s CEO called her back about two hours later and told her

that she was a bad manager, that none of her customers liked her, and that she “should get

out.” Acker believed that no one from ICO would “have the courtesy to come down and

fire [her]” in person, so she left after another employee arrived for work.

       Krieg participated in the hearing on behalf of ICO. She testified that she and the

CEO had a phone conversation with Acker on the morning of October 24 during which

Acker made several accusations regarding another employee and implied that Krieg and

the employee were having an inappropriate relationship. The CEO then told Acker that

Krieg would be at her store the next day and could address Acker’s concerns at that time.

But Acker responded that she would not be there because she was going out of town.

Later that morning, ICO received Acker’s fax regarding the schedule, which the CEO

interpreted “as a quit.” The next day, Krieg learned from another employee that Acker

had quit and left her keys.

       Krieg also testified that Acker’s schedule change was not related to another

employee but was instead motivated by ICO’s need to “bring [its] labor hours under

control.” Krieg denied that the CEO told Acker she was a horrible manager because

Acker was not a manager. And Krieg denied that a second conversation took place

between the CEO and Acker because ICO would have immediately taken several steps

(including changing locks and passcodes and deleting Acker from the security system) if

Acker had been fired.

       Following the hearing, the ULJ found that Acker quit her employment, that she

“did not quit for a good reason caused by ICO,” and that she was ineligible for


                                             3
unemployment benefits. The ULJ credited Krieg’s version of events in her findings of

fact, determining that ICO’s CEO did not make a second phone call to Acker and “did

not tell Acker she was discharged from employment.” The ULJ explained that “[t]he

employer’s testimony was more credible because it was organized, logical and supported

by the evidence provided” and “Acker’s testimony was less credible because it was less

specific, inconsistent and vague.”

       After Acker filed a timely request for reconsideration, the ULJ set aside her

findings of fact and decision and ordered an additional evidentiary hearing to “further

develop[] the timeline of events leading to Acker’s separation from employment.” At the

additional hearing, the ULJ admitted several new exhibits from both parties, including

ICO’s surveillance video from the store on October 24, 2013.

       After reviewing the new evidence, the ULJ again credited Krieg’s testimony

“because it was straightforward, specific, and consistent with the exhibits provided” and

found Acker’s testimony “less credible because it was inconsistent and at times not

plausible.” The ULJ again concluded that Acker quit her employment and that she was

ineligible for unemployment benefits. Acker requested reconsideration of the ULJ’s

decision, which was later affirmed.

                                      DECISION

       This court may remand, reverse, or modify a ULJ’s decision denying benefits

when the ULJ’s findings, inferences, conclusions, or decision are affected by an error of

law, unsupported by substantial evidence in view of the entire record, or arbitrary or

capricious. Minn. Stat. § 268.105, subd. 7(d) (2014). We view factual findings in the


                                           4
light most favorable to the ULJ’s decision and will not disturb them “when the evidence

substantially sustains them.” Skarhus v. Davanni’s Inc., 721 N.W.2d 340, 344 (Minn.

App. 2006). We give deference to the ULJ’s credibility determinations. Id.

      On appeal, Acker challenges only the ULJ’s determination that she quit her

employment. She does not challenge the ULJ’s additional determination that Acker’s

quitting was not due to a good reason caused by ICO. An employee who quits her

employment without good reason caused by her employer is ineligible for unemployment

benefits. Minn. Stat. § 268.095, subd. 1(1) (2014). “A quit from employment occurs

when the decision to end the employment was, at the time the employment ended, the

employee’s.” Id., subd. 2(a) (2014). Whether an employee quit or was discharged is a

question of fact, subject to this court’s deference. Stassen v. Lone Mountain Truck

Leasing, LLC, 814 N.W.2d 25, 31 (Minn. App. 2012).

      Acker argues that the evidence supports her position that she was discharged from

her employment. We disagree. Following the morning conference call, Acker faxed a

blank schedule to ICO with the words: “You can fill this out yourself and leave my name

off[.] I am DONE[.]” As the ULJ explained, “[i]t is unclear why Acker would ask to be

left off of the schedule entirely if she intended to continue working with ICO.” Acker

then finished her shift, and the surveillance video refutes Acker’s explanation that she

stayed only until another employee arrived because there was always another employee

in the store with her. When Acker finally left the store, she left her keys with another

employee. In addition, ICO’s phone-record evidence does not support Acker’s claim that

she received a later call from ICO’s CEO. The evidence substantially supports the ULJ’s


                                           5
determination that Acker made the decision to end her employment. See Minn. Stat.

§ 268.095, subd. 2(a).

       Acker also suggests that the ULJ should have credited her testimony rather than

Krieg’s testimony. “When the credibility of a witness testifying in a hearing has a

significant effect on the outcome of a decision, the unemployment law judge must set out

the reason for crediting or discrediting that testimony.” Minn. Stat. § 268.105, subd.

1a(a) (2014). The ULJ properly explained her credibility determinations, stating that

Krieg’s testimony was “straightforward, specific, and consistent with the exhibits

provided” while Acker’s testimony was “inconsistent and at times not plausible.” We

defer to the ULJ’s credibility determinations. Skarhus, 721 N.W.2d at 344; see Nichols v.

Reliant Eng’g & Mfg., Inc., 720 N.W.2d 590, 594 (Minn. App. 2006) (“When witness

credibility and conflicting evidence are at issue, we defer to the decision-maker’s ability

to weigh the evidence and make those determinations.”). In addition, the ULJ’s findings

are supported by substantial evidence in the record because the timesheets, phone

records, and surveillance video support ICO’s version of events. See Ywswf v. Teleplan

Wireless Servs., Inc., 726 N.W.2d 525, 532-33 (Minn. App. 2007) (we uphold the ULJ’s

credibility findings when they are supported by substantial evidence). And there is no

evidence in the record to support Acker’s claim that ICO’s timecard evidence was

altered.

       Finally, Acker implies that the ULJ improperly relied on hearsay evidence because

Kreig should not have been allowed to testify on behalf of ICO’s CEO. But a ULJ may

receive “any evidence that possesses probative value, including hearsay.” Minn. R.


                                            6
3310.2922 (2013). There is no evidence that Acker requested the CEO’s testimony at

either hearing. Krieg’s testimony and ICO’s exhibits possessed probative value, and the

district court did not err by allowing Krieg to testify on behalf of ICO. See id.; see also

Lamah v. Doherty Emp’t Grp., Inc., 737 N.W.2d 595, 603 (Minn. App. 2007) (explaining

that the relator’s evidentiary challenges were without support when it was “unclear what

additional evidence or testimony he believes would have been necessary”).

       In sum, we do not find error in the ULJ’s credibility determinations. The ULJ’s

factual findings are supported by substantial evidence. Therefore, we affirm.

       Affirmed.




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