Terry Torgerson, Relator v. Mark R. Hellerud, Department of Employment and Economic Development

• Court: Court of Appeals of Minnesota
• Decided: December 12, 2016
• Docket: A16-372
• Status: Unpublished

Opinion

This opinion will be unpublished and may not be cited except as provided by Minn.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 A16-0372

Terry Torgerson, Relator,

vs.

Mark R. Hellerud, Respondent,

Department of Employment and Economic Development, Respondent.

Filed December 12, 2016 Affirmed Larkin, Judge

Department of Employment and Economic Development File No. 34080396-3

Terry L. Torgerson, Hendrum, Minnesota (pro se relator)

Mark R. Hellerud, Ada, Minnesota (attorney pro se)

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

Considered and decided by Peterson, Presiding Judge; Larkin, Judge; and Reyes,

Judge. UNPUBLISHED OPINION

LARKIN, Judge

Relator challenges an unemployment-law judge’s (ULJ) determination that he is

ineligible for unemployment benefits because he quit his employment. Relator questions

the ULJ’s credibility determinations and suggests that he did not receive a fair hearing. We

affirm.

FACTS

Relator Terry Torgerson requested unemployment benefits after his employment

with respondent Mark Hellerud ended. Respondent Minnesota Department of

Employment and Economic Development (DEED) determined that Torgerson did not

qualify for unemployment benefits because he quit his employment. Torgerson appealed

DEED’s ineligibility determination, and a ULJ held a telephonic hearing. The issues at the

hearing were whether Torgerson quit and, if so, whether he had a good reason to quit.

During the hearing, the ULJ reviewed the exhibits that had been submitted and

asked the parties whether the exhibits included the latest documents submitted by each

party. Torgerson testified that his coworkers verbally abused and threatened him and that

Hellerud fired him without explanation. Hellerud testified that “there was a slow

progression of . . . bad behavior of [Torgerson’s] and we tried to work with him but it

culminated in this last episode,” referring to an altercation instigated by Torgerson a few

days before the end of his employment. Hellerud called four witnesses, and they described

Torgerson’s angry outbursts at work. Torgerson had the opportunity to cross-examine

Hellerud and each of his witnesses.

2 After asking Torgerson some questions, the ULJ heard from Virgil McKay, a

witness on Torgerson’s behalf. McKay indicated that he knew two of Hellerud’s witnesses

and alleged that they drink alcohol before work “all the time.” Hellerud recalled those two

witnesses, and they indicated that they did not know McKay well. The ULJ asked for final

comments from each party before concluding the hearing.

The ULJ issued a decision after the hearing, finding Hellerud and his witnesses more

credible than Torgerson and concluding that a “preponderance of the evidence shows that

Torgerson did quit his job.” The ULJ noted that an applicant who quit employment is

ineligible for all unemployment benefits unless an exception applies and found no

applicable exception. Torgerson requested reconsideration, challenging the ULJ’s factual

findings and credibility determinations, asserting that the ULJ did not consider certain

documents, and submitting additional documents. The ULJ affirmed his decision, noting

that he had considered the reliability of Hellerud’s witnesses and the documents Torgerson

originally submitted when making his initial decision. The ULJ concluded that because

the “additional exhibits submitted by Torgerson in this case would not likely change the

outcome of the decision[,] [a]n additional hearing shall not be ordered.” Torgerson appeals

by writ of certiorari.

DECISION

This court may reverse or modify a ULJ’s decision if a relator’s “substantial

rights . . . may have been prejudiced because the findings, inferences, conclusion, or

decision are . . . made upon unlawful procedure.” Minn. Stat. § 268.105, subd. 7(d) (Supp.

2015). However, this court does not presume error on appeal. Kroona v. Dunbar, 868

3 N.W.2d 728, 735 (Minn. App. 2015). “[T]he burden of showing error rests upon the one

who relies upon it.” White v. Minn. Dep’t of Nat. Res., 567 N.W.2d 724, 734 (Minn. App.

1997) (quotations omitted), review denied (Minn. Oct. 31, 1997). Moreover, an assignment

of error in a brief based on mere assertion and not supported by argument or authority is

waived unless prejudicial error is obvious on mere inspection. State v. Modern Recycling,

Inc., 558 N.W.2d 770, 772 (Minn. App. 1997).

A court traditionally accords some latitude and consideration to a pro se litigant,

such as Torgerson. Liptak v. State ex rel. City of New Hope, 340 N.W.2d 366, 367 (Minn.

App. 1983). Nonetheless, we generally hold pro se parties to the same standards as

attorneys, and they must comply with court rules. Fitzgerald v. Fitzgerald, 629 N.W.2d

115, 119 (Minn. App. 2001).

Torgerson’s brief to this court states, in its entirety:

I gave DEED documents that were disregarded by the ULJ[,] [one] showing statements made by Mark Hellerud pages 19-24 of transcript is all fraudulent[.] Also gave documents of Mark Hellerud habitually shorting his employees on pay and documents of two men who worked for Mark Hellerud shorted on pay and bullied into defending themselves only to suffer both legal and financial hardship[.] Also my witness was not called into the hearing until page 46 of the transcript.

In the absence of citation to legal authority or legal argument, we generously

construe Torgerson’s appellate brief as a challenge to the ULJ’s credibility determinations

and an allegation that he did not receive a fair hearing.

I.

Torgerson appears to assert that Hellerud’s testimony was fraudulent, thereby

calling into question the ULJ’s credibility determination. “When the credibility of a

4 witness testifying in a hearing has a significant effect on the outcome of the decision, the

unemployment law judge must set out the reason for crediting or discrediting that

testimony.” Minn. Stat. § 268.105, subd. 1a(a) (2014). “We view the ULJ’s factual

findings in the light most favorable to the decision, giving deference to the credibility

determinations made by the ULJ.” Bangtson v. Allina Med. Grp., 766 N.W.2d 328, 332

(Minn. App. 2009) (quotation omitted).

The ULJ found that the “testimony of Mark Hellerud [was] more credible. Mark

Hellerud has less of a vested interest in this matter and his testimony was corroborated by

other witnesses. The testimony of Mark Hellerud was honest and sincere and it was

reasonable compared with the other evidence.” The ULJ also credited testimony that

Torgerson harassed another employee over Torgerson’s testimony that he was harassed,

based on corroboration “by other witnesses and hearsay evidence.”

Because the ULJ adequately explained his credibility determination and the record

substantially sustains it, we do not disturb the credibility determination.

II.

Torgerson also appears to question whether the hearing was fair, noting that his

witness was not called until near the end of the hearing and asserting that the ULJ did not

consider certain documents. “We will reverse a ULJ’s decision if it was made on an

unlawful procedure.” Stassen v. Lone Mountain Truck Leasing, LLC, 814 N.W.2d 25, 31

(Minn. App. 2012). “A ULJ should assist unrepresented parties in presenting evidence.

This is not to say that a ULJ is the unrepresented party’s advocate; the evidentiary hearing

is a fact-gathering endeavor, and, like all judicial and quasi-judicial fact-gathering

5 endeavors, it is still adversarial and requires the judicial officer to maintain neutrality.” Id.

at 32 (citations omitted).

Here, the ULJ asked Torgerson if the ULJ had all of Torgerson’s exhibits. The ULJ

questioned all of the witnesses and allowed Torgerson the opportunity to cross-examine all

of the witnesses. Torgerson complains that the ULJ did not call McKay until the end of

the hearing, but he does not explain why that timing was improper or how it prejudiced his

substantial rights. Torgerson also complains that the ULJ ignored certain documents

regarding Hellerud’s underpayment of his employees. But the ULJ’s order of affirmation

indicates that he considered these documents, which included time cards, pay stubs, and a

newspaper article entitled “Halstad-area farm wage dispute ended in ax threats, robbery

and assault, court records say.” Moreover, Torgerson does not explain why these

documents were relevant to the issues before the ULJ. In sum, the record does not support

Torgerson’s suggestion that he received an unfair hearing.

Because Torgerson has not established reversible error, we affirm.

Affirmed.