This opinion will be unpublished and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

A14-1860

Kim Westrup,

Respondent,

vs.

Ryan Electric of St. Cloud, Inc.,

Relator,

Department of Employment and Economic Development,

Respondent.

Filed August 3, 2015

Affirmed

Minge, Judge

Department of Employment and Economic Development

File No. 32661367-3

Kim Westrup, Eden Valley, Minnesota (pro se respondent)

Kelly S. Hadac, HKM, St. Paul, Minnesota (for relator)

Lee B. Nelson, Munazza Humayun, Minnesota Department of Employment and 

Economic Development, St. Paul, Minnesota (for respondent department)

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

Judge. 

 

 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to 

Minn. Const. art. VI, § 10.
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U N P U B L I S H E D O P I N I O N

MINGE, Judge

In this certiorari appeal from an unemployment-law judge’s (ULJ) decision that 

respondent-employee is eligible for unemployment benefits, relator-employer argues that 

the ULJ abused its discretion by refusing to order an additional hearing to receive

evidence which is claimed to show that statements made by respondent during the 

hearing were likely false. We affirm. 

FACTS

Respondent Kim Westrup was employed as an office administrator by relator 

Ryan Electric of St. Cloud, Inc. from 2009 until June 9, 2014, when her employment was 

terminated. She applied for unemployment benefits. Respondent Minnesota Department 

of Employment and Economic Development (DEED) issued a determination of 

eligibility. Ryan Electric appealed for a determination by a ULJ.

On July 21, 2014, the ULJ held an evidentiary hearing. Ryan Mulliner, the owner 

of Ryan Electric and Westrup’s direct supervisor, testified for Ryan Electric. He stated

that Westrup was “very good at her job” and “was always as helpful as you could 

expect,” but that her attitude and demeanor were “less than ideal.” He related that on one 

occasion he had to speak with her about being nicer to a customer after the customer 

complained, and that after he spoke with her, she was always friendly to the customer. 

He also stated that in 2012 the company implemented a new scanning procedure and 
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Westrup was “initially hesitant to follow the procedure.” After six months Westrup was 

fully complying with the procedure, and it has not been an issue since. 

Mulliner then testified that Westrup sometimes acted rudely toward other 

employees. He stated that in September 2013, Ryan Electric hired a new employee, Sue 

Ergen. Although Mulliner initially intended to have Ergen testify at the hearing, he

realized that she would be out of the country on the day of the hearing and “didn’t bother 

rescheduling.” As a result Mulliner testified about Westrup and Ergen’s working 

relationship. Westrup and Ergen did not get along well, and Ergen felt that Westrup was 

unprofessional. On April 6, 2014, Ergen submitted a letter that stated she was resigning 

because Westrup was difficult to work with. The letter alleged that Westrup had made 

various inappropriate statements, including that “she was not going to be [Mulliner’s] 

n*gger when [he was] in North Dakota,” that sometimes she “[didn’t] give a sh*t about 

Ryan Electric,” and several criticisms of the company’s business practices. Ryan Electric 

did not submit the letter as an exhibit, but Mulliner read the entire letter during the 

hearing. Mulliner convinced Ergen not to resign, and he never spoke with Westrup or 

issued any warnings concerning the allegations in the letter.

Two months later, Ryan Electric issued a memo announcing a change in company 

policy. The memo indicated that any questions or concerns should be directed to 

Mulliner. Westrup approached Mulliner, stating she had a problem with the change and 

acting in a manner that Mulliner described as “huffy.” Mulliner testified that he told her 

it was not for her to worry about and that Westrup replied “well, fine then, I just won’t 
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worry about it” and left the office. This interaction lasted approximately 30 seconds. 

Mulliner testified that after the interaction “[he] decided you know some things are just, 

it’s just never gonna change and [he] needed to make a change.” He decided to discharge 

Westrup.

Westrup also testified at the hearing. She confirmed that she and Ergen had a 

difficult working relationship. The ULJ questioned her concerning the allegations made 

in Ergen’s resignation letter. Westrup denied ever telling Ergen that she wasn’t “going to 

be [Mulliner’s] n*gger” and that she did not recall ever making the comment, but 

indicated there was a chance she may have said something to a former employee. 

Westrup denied ever saying that she did not “give a sh*t about Ryan Electric” or that she 

was the boss when Mulliner was out of the office. Westrup also testified about the 

encounter with Mulliner that occurred before her termination and agreed that the 

discussion ended with her saying “fine then I won’t worry about it” and leaving the 

office.

The ULJ determined that Westrup was discharged for reasons other than 

employment misconduct and therefore eligible for benefits. The ULJ noted that the 

parties disagreed about whether Westrup made the statements in Ergen’s resignation 

letter. With no direct testimony from Ergen, the ULJ found Westrup more credible 

concerning that issue. The ULJ also noted that Westrup’s attitude was “less than ideal” 

and that she did not get along with Ergen. However, the ULJ determined that in

determining eligibility for unemployment benefits, Westrup’s conduct was “not 
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egregious” and “she did not seriously violate the employer’s reasonable expectations or 

show a lack of concern for the employment.” 

Ryan Electric requested reconsideration and asked the ULJ to order an additional 

evidentiary hearing so Ergen could testify and her resignation letter could be submitted as 

an exhibit. Ryan Electric argued that “[a]t a minimum, the testimony of Ms. Ergen will 

show that Ms. Westrup’s testimony was likely false and that the false evidence had an 

effect on the outcome of the decision.” The ULJ denied Ryan Electric’s request for an 

additional evidentiary hearing. The ULJ concluded that Ergen’s testimony was not new 

evidence but would reiterate what Mulliner had testified to during the hearing and “only 

confirms that disagreement between the [parties] exists.” Ryan Electric appeals. 

D E C I S I O N

When reviewing a ULJ’s eligibility determination, we may affirm, remand for 

further proceedings, or reverse or modify the decision if the substantial rights of the 

relator have been prejudiced because the findings, inferences, conclusion, or decision are 

affected by an error of law or are unsupported by substantial evidence. Minn. Stat. 

§ 268.105, subd. 7(d) (2014). We review the ULJ’s factual findings in the light most 

favorable to the decisions and defer to the ULJ’s credibility determinations. Peterson v. 

Nw. Airlines Inc., 753 N.W.2d 771, 774 (Minn. App. 2008), review denied (Minn. Oct. 1, 

2008). “[T]his court will not disturb the ULJ’s factual findings when the evidence 

substantially sustains them.” Id.
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The purpose of chapter 268 is to assist those who are unemployed through no fault 

of their own. Minn. Stat. § 268.03, subd. 1 (2014). The chapter is remedial in nature and 

must be applied in favor of awarding benefits, and any provision precluding receipt of 

benefits must be narrowly construed. Minn. Stat. § 268.031, subd. 2 (2014).

Ryan Electric argues that the ULJ erred by declining to hold an additional 

evidentiary hearing and requests that we remand the case, ordering another evidentiary 

hearing limited to receiving testimony and the letter from Ergen. 

We defer to a ULJ’s decision whether to grant an additional evidentiary hearing 

and will reverse that decision only if the ULJ abused its discretion. Vasseei v. Schmitty & 

Sons Sch. Buses Inc., 793 N.W.2d 747, 750 (Minn. App. 2010). The ULJ’s discretion is 

not absolute and “must be exercised within the statutory requirements.” Id. The relevant 

statute provides that the ULJ must order an additional evidentiary hearing if a party 

shows that evidence that was not submitted at the evidentiary hearing: (1) “would likely 

change the outcome of the decision and there was good cause for not having previously 

submitted that evidence” or (2) “would show that the evidence that was submitted at the 

[evidentiary] hearing was likely false and that the likely false evidence had an effect on 

the outcome of the decision.” Minn. Stat. § 268.105, subd. 2(c)(1)-(2) (2014). 

The new evidence Ryan Electric offered included the testimony of Ergen and a 

copy of her resignation letter. Ryan Electric does not argue that there was good cause for 

not submitting the evidence at the initial hearing. Thus, under the first statutory provision 

for an additional hearing, we do not consider whether eliminating any diminished 
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persuasiveness of the hearsay nature of Mulliner’s testimony would likely change the 

outcome of the ULJ’s decision. The second statutory ground provides for an additional 

hearing if the new evidence “would show that the evidence that was submitted at the 

hearing was likely false and that the likely false evidence had an effect on the outcome of 

the decision.” Id., subd. 2(c)(2). The ULJ determined that the new evidence was “merely 

a summary of what [Ryan Electric] testified to during the hearing” and “only confirms 

that disagreement between the [parties] exists.” The ULJ concluded that the summary 

did not demonstrate that Westrup’s testimony was likely false.

As the ULJ noted, the parties disagree about whether Westrup made the statements 

in question. Ryan Electric’s position is based on Ergen’s account. Ergen’s proffered 

testimony would be consistent and cumulative to Mulliner’s testimony and the argument 

Ryan Electric made during the initial hearing. The ULJ was already aware that Ergen 

and Westrup had conflicting accounts of what happened. At best, direct testimony by 

Ergen rather than Mulliner’s hearsay account might tilt the persuasiveness of the record 

in favor of Ryan Electric. However, Ryan Electric chose to take its chances with this 

hearsay evidence. Replacing that hearsay with direct testimony is not the same as 

demonstrating falsity. We conclude that it was not an abuse of discretion for the ULJ to 

determine that Ergen’s personal testimony on the subject would not show that Westrup’s 

testimony was likely false. 

Similarly, it was also within the ULJ’s discretion to decide that adding Ergen’s 

actual resignation letter to the record would not establish that Westrup’s testimony was 
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likely false. Although not submitted as an exhibit, Mulliner read Ergen’s entire

resignation letter into the record during the initial hearing. The ULJ considered the 

contents and asked Westrup questions based on the allegations made in the letter. 

Moreover, Ryan Electric’s argument that the letter is “a written confirmation of the 

statements made by Ms. Westrup” does not necessarily change the situation. Ryan 

Electric’s allegations that the statements were made is based entirely on Ergen’s account. 

The letter does not prove that the statements were made, but rather repeats the allegations 

that were heard and considered by the ULJ during the initial hearing. 

 Because the ULJ did not abuse its discretion by denying the request for an 

additional evidentiary hearing, we affirm. 

Affirmed.