Kuller v. SuperValu, Inc.

• Decision Date: 16 May 2022
• Docket Number: A21-1144
• Parties: Kenneth Kuller, Relator, v. Supervalu, Inc., Respondent, Department of Employment and Economic Development, Respondent.
• Court: Minnesota Court of Appeals

Kenneth Kuller, Relator, v. Supervalu, Inc., Respondent, Department of Employment and Economic Development, Respondent.

No. A21-1144

Court of Appeals of Minnesota

May 16, 2022

This opinion is nonprecedential except as provided by Minn. R Civ. App. P. 136.01, subd. 1(c).

Department of Employment and Economic Development File No 45743377

Kenneth Kuller, Burnsville, Minnesota (pro se relator)

Keri A. Phillips, Anne B. Froelich, Minnesota Department of Employment and Economic Development, St. Paul, Minnesota (for respondent department)

SuperValu Inc., St. Louis, Missouri, (respondent employer)

Considered and decided by Bryan, Presiding Judge; Jesson, Judge; and Wheelock, Judge.

BRYAN JUDGE

Relator challenges the decision by the unemployment law judge (ULJ) to deny relator's request for reconsideration, arguing that the ULJ did not adequately address each of the nine issues raised in his request. Because relator's arguments misconstrue the ULJ's decision and do not accurately reflect the applicable law and procedures, we affirm.

FACTS

From June 2017 until his discharge on March 14, 2021, relator Kenneth Kuller worked for respondent Supervalu, Inc. (Supervalu). Between April 2020 and March 2021, customers and co-workers repeatedly complained that Kuller made inappropriate jokes, harassed co-workers, and offended customers. Following the last incident, Kuller was suspended pending additional investigation, and Supervalu discharged him approximately one week later. Respondent Department of Employment and Economic Development (DEED) determined that Kuller was eligible to receive benefits, but Supervalu appealed the determination. The case proceeded to an evidentiary hearing to determine whether Kuller was discharged from Supervalu for employment misconduct.

At the hearing, both Kuller and his manager, A.K., testified about the separate incidents for which management received complaints. A.K. and Kuller also testified regarding discussions that management had with Kuller and the disciplinary actions taken against him by management, which incrementally progressed in severity. The parties also testified about an incident from the fall of 2020, which became the subject of the parties' mediation. As a result of mediation, the parties agreed that the incident would be removed from Kuller's file if he met behavioral expectations for the next year. A.K. testified that the incident related to the mediation was not considered in Supervalu's decision to terminate Kuller. The ULJ also admitted six exhibits.^[1]

On July 8, 2021, the ULJ issued a decision (the posthearing decision) that Kuller was ineligible for unemployment benefits. In its findings of fact, the ULJ referenced six incidents, including two from the "spring of 2020," and four others that occurred on June 1, 2020; September 27, 2020; December 17, 2020; and March 5, 2021. The ULJ also found that A.K.'s testimony was credible because he "presented his testimony in a clear and straightforward manner without anything to suggest inaccuracy or deception. His testimony presented a logical sequence of events culminating in Kuller's discharge." The ULJ found that Kuller's testimony was not credible, explaining the following:

Kuller denied every claim against him. He said the customers must have misheard what they claimed to overhear. He said he never harassed [his co-worker] and that [the co-worker] was harassing him. He placed the fault for his discharge on [A.K.], who he claimed treated him unfairly. It is highly unlikely that every customer and co-worker complaint against Kuller resulted from him being misheard. Kuller also contradicted his own testimony, suggesting he was not providing accurate testimony. Kuller's testimony was not credible.

Based on these findings, the ULJ determined that Kuller "engaged in a pattern of inappropriate behavior that resulted in multiple customer and co-worker complaints, " Kuller continued this pattern of behavior even after being "told to stop," and this behavior constituted employment misconduct because it "showed clearly a serious violation of the standards of behavior the employer has a right to reasonably expect of [Kuller]."

Kuller requested reconsideration, ^[2] raising a variety of challenges to the merits of the posthearing decision, divided into the following three categories: (1) eight separate challenges to the factual findings made by the ULJ in its posthearing decision (including separate challenges to six specific factual findings, a challenge to the ULJ's credibility determinations, and an argument that the ULJ failed to make necessary factual findings regarding the context of disciplinary actions against Kuller); (2) four challenges labeled as errors of law (including a challenge that the ULJ failed to properly defer to the findings of fact in the department's initial determination of eligibility, an argument that the ULJ failed to make necessary factual findings regarding Kuller's intent and the definition of "employment misconduct"); and (3) four challenges labeled as "procedural errors" (including arguments regarding the standard of review applied by the ULJ to DEED's initial determination of eligibility, the ULJ's admission of evidence, consideration of issues Kuller believes were irrelevant, and the failure to consider a relevant issue). In support of this request, Kuller submitted a one-page document, titled "Mediation Result Kenneth Kuller" (the mediation statement), which indicated that management agreed not to suspend Kuller. This document stated:

Management reported an incident on October 23rd where he claimed [Kuller] had told an inappropriate joke. Company believes this report was antagonistic and unlikely to be accurate. Management agreed not to discipline [Kuller] for this incident that would have called for a 3-day suspension and agreed not to bring it up again. [Kuller] agreed to refrain from future comments that may be deemed inappropriate.^[3]

On August 12, 2021, the ULJ issued a decision (the decision on reconsideration) denying Kuller's request for reconsideration, declining to hold a new hearing, and concluding that "the [posthearing decision], is factually and legally correct." The ULJ explained that the posthearing decision "came down largely to credibility." The ULJ concluded that nothing in the request for reconsideration would change the outcome:

[T]he ULJ found that the employer's witnesses were credible and Kuller was not. . . . Kuller claimed that everyone who complained about him was either lying or was mistaken about what happened. This is not likely to be true. Kuller also at one time contradicted himself. In his initial request for reconsideration, Kuller described this as "an inadvertent misstatement." In the context of the testimony, however, this was not a slip of the tongue; Kuller blatantly contradicted his prior testimony.

Kuller's testimony in the hearing was not credible. There is nothing in Kuller's request for reconsideration that leads the ULJ to change the credibility findings.

In addition, the ULJ addressed the mediation statement. The ULJ concluded that a new hearing was not needed because the mediation statement did not relate to the employment decision and would not change the outcome of the hearing:

Kuller argues that a new hearing is required because Supervalu did not provide the mediation agreement. Supervalu did not discharge Kuller because of what happened in the mediation session. Nothing in the hearing suggested that the mediation agreement was necessary for the decision. Kuller does not credibly explain how the contents of the mediation agreement would change the decision. The mediation agreement was not necessary for the decision. The ULJ will not reopen the record to receive it.

Finally, the ULJ determined that the factual findings in the posthearing decision supported the conclusion of employment misconduct and specifically determined that Kuller's arguments regarding the standard of review was an incorrect statement of law:

Kuller argues that the ULJ made errors of law. He argues that the findings of fact do not support a finding of employment misconduct and that the ULJ applied the wrong standard of law. Kuller was discharged because he intentionally made numerous statements at work that were inappropriate and unprofessional. He was warned about this and continued to engage in the same behavior. His actions showed clearly a serious violation of the standards of behavior the employer has a right to reasonably expect of the employee. Kuller claimed the ULJ should have given greater deference to the original determination of []eligibility. This is not a correct statement of the law.

Kuller appeals by writ of certiorari.

DECISION

In his brief to this court, Kuller identifies the following nine issues^[4] from his request for reconsideration of the posthearing decision: various challenges to the factual findings (numbered on appeal as issues 1, 2, and 9); an assertion that the ULJ failed to rule out each statutory exception to the definition of "employment misconduct" (numbered on appeal as issue 3); an argument that the ULJ applied the incorrect standard of review in its posthearing decision (numbered as issue 4); a variety of procedural errors regarding notice and admission of evidence (numbered as issues 5, 6, and 7); and a belief that the ULJ failed to address his claim of retaliation (numbered as issue 8). Kuller argues that the ULJ's failure to address each of the issues in the decision on reconsideration compels reversal and remand because the ULJ's defective decision does not satisfy the factors set forth in section 268.105 subd. 7(d) (2020). We are not convinced, however, and we conclude that relator's arguments misconstrue the...