Keith G. Lassiter, Relator v. The Bulldog Restaurant NE, Inc., Department of Employment and Economic Development

This opinion will be unpublished and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
A14-1168

Keith G. Lassiter,
Relator,

vs.

The Bulldog Restaurant NE, Inc.,
Respondent,

Department of Employment and Economic Development,
Respondent.

Filed January 5, 2015
Affirmed
Bjorkman, Judge

Department of Employment and Economic Development
File No. 32114012-3

Jasper Berg, IAJ Law, LLC, Woodbury, Minnesota (for relator)

Nancy Susan Anton, Lindquist & Vennum, Minneapolis, Minnesota (for respondent The
Bulldog Restaurant NE, Inc.)

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

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

Connolly, Judge.
 UNPUBLISHED OPINION

BJORKMAN, Judge

Relator challenges the decision of the unemployment-law judge (ULJ) that he was

discharged for employment misconduct, arguing that (1) the ULJ failed to make the

required credibility findings, (2) the evidence does not substantially support the ULJ’s

findings, (3) the ULJ failed to adequately develop the record, and (4) his conduct reflects

only an error in judgment. We affirm.

FACTS

Respondent The Bulldog Restaurant NE, Inc. hired relator Keith Lassiter in May

2012 to work as a bouncer. The position required him to, among other duties, deal with

intoxicated or unruly customers. The Bulldog provided training and on-going instruction

on its security policies, including its requirement that employees “use the least amount of

force necessary” when intervening with customers, and “always get a manager.” The

Bulldog also trained Lassiter on how to avoid getting angry in response to unruly

customers, and The Bulldog’s owner, Amy Rowland, did several anger-management

role-playing exercises with Lassiter.

In July 2013, Lassiter intervened with a customer by physically grabbing him and

pushing him out the door. Rowland discussed the incident with Lassiter and reminded

him never to touch a customer. She noted the warning in her records.

Lassiter again intervened with a customer around closing time on December 28,

2013. The customer became upset and made “inappropriate” statements after the

bartender removed his drink from the bar. Lassiter approached the customer,

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aggressively moving his hands near the customer’s face. The customer did not make any

movements in response, but Lassiter continued to flail his hands near the customer’s face

and then physically grabbed the customer. A fight ensued, in which Lassiter suffered a

severe cut to his face. On January 8, 2014, after reviewing the security footage of the

incident, Rowland discharged Lassiter.

Lassiter applied to respondent Minnesota Department of Employment and

Economic Development (DEED) for unemployment benefits. In his application, Lassiter

stated that he was discharged because he did not follow the procedure for removing a

customer from the establishment, explaining that the policy he violated was: “DO NOT

PUT YOUR HANDS ON ANYONE.” DEED determined that Lassiter is ineligible for

benefits because he was discharged for employment misconduct. Lassiter appealed.

The ULJ conducted a de novo evidentiary hearing at which both Lassiter and The

Bulldog were represented by counsel. Lassiter testified and presented three witnesses: a

friend who observed the altercation from outside the bar, a former bartender at The

Bulldog who was not present on December 28, and another former employee who

worked as a bouncer but was not present on December 28. The Bulldog presented the

testimony of Rowland and the bar’s security manager, neither of whom observed the

incident. The ULJ also reviewed the security footage. The ULJ determined that Lassiter

committed employment misconduct by knowingly violating The Bulldog’s policies

regarding customer security, and therefore is ineligible for benefits. Lassiter requested

reconsideration, and the ULJ affirmed. Lassiter brings this certiorari appeal.

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 DECISION

An employee who is discharged for employment misconduct is ineligible for

unemployment benefits. Minn. Stat. § 268.095, subd. 4(1) (2014). Whether an employee

committed employment misconduct is a mixed question of law and fact. Stagg v. Vintage

Place Inc., 796 N.W.2d 312, 315 (Minn. 2011). Whether an employee committed a

particular act is an issue of fact, which we review for substantial evidence, but whether

the act constitutes employment misconduct is a legal question, which we review de novo.

Id. We may reverse the decision of a ULJ “if the substantial rights of the petitioner may

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

unsupported by substantial evidence in view of the entire record as submitted.” Minn.

Stat. § 268.105, subd. 7(d) (2014).

I. The ULJ’s findings of fact comply with the statutory requirements and have
substantial record support.

“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.” Id., subd. 1a(a) (2014). But when the ULJ

makes the required credibility findings, we accord them deference, not disturbing them

“when the evidence substantially sustains them.” See Peterson v. Nw. Airlines, Inc., 753

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

Lassiter first argues that the ULJ’s findings are inadequate because she addressed

the witnesses’ credibility collectively. We disagree. The requirement that the ULJ make

express credibility findings does not mandate a separate finding as to each witness, only

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that the ULJ expressly articulate his or her reasoning as to credibility. See Minn. Stat.

§ 645.08(2) (2014) (stating that singular references in statutory language include the

plural). The ULJ did so here. In describing the credibility of the six witnesses, the ULJ

noted that they presented essentially two versions of events—Lassiter’s version and The

Bulldog’s version. The ULJ found that “the testimony of The Bulldog’s witnesses was

more credible than that of Lassiter and his witnesses because it was the more plausible

and more believable version of the events.” The ULJ also noted that Lassiter’s testimony

was “self-serving” and that the security footage corroborated the testimony of The

Bulldog’s witnesses. We conclude that the ULJ made the required credibility findings.

Lassiter next asserts that the ULJ’s factual findings lack substantial evidentiary

support. We are not persuaded. First, the record supports the finding that Lassiter was

aware of The Bulldog’s policies to always use the least amount of force necessary when

intervening with a customer, never touch customers, and always get a manager. Lassiter

points to his testimony that his multiple managers told him different things but never told

him not to touch a customer. But Lassiter’s testimony is belied by his own statement in

his application for benefits acknowledging that he was told never to touch customers and

was discharged for violating that policy. Moreover, Rowland testified that she personally

trained Lassiter on this policy, reminded him of it following his July 2013 violation, and

contemporaneously documented that reminder. And the record contains portions of the

employee handbook and a sign that was posted in the workplace, which highlight the

policies of using the least amount of force possible when dealing with unruly customers

and always involving a manager.

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 Second, the record supports the ULJ’s finding that Lassiter violated The Bulldog’s

policies by aggressively confronting and initiating physical contact with a customer.

Careful review of the security footage confirms this version of events. While the video

quality is poor, it plainly shows Lassiter grabbing the customer. And we resolve any

question as to the significance of the video in favor of the ULJ’s findings, as she had the

unique opportunity to question Lassiter and Rowland as she reviewed the footage.

In sum, we conclude that the evidence substantially supports the ULJ’s findings

that Lassiter knew of The Bulldog’s policies prohibiting him from touching customers or

otherwise using any more force than necessary, and violated these policies by

aggressively confronting and physically grabbing a customer.

II. The ULJ thoroughly developed the record.

A hearing to determine qualification for unemployment benefits is an evidence-

gathering inquiry. 39 Minn. Reg. 151, 153 (Aug. 4, 2014) (to be codified at Minn. R.

3310.2921 (Supp. 2014)); see also Minn. Stat. § 268.105, subd. 1(b) (2014) (“[DEED]

may adopt rules on procedures for hearings under Minnesota Rules, chapter 3310.”) . At the

evidentiary hearing, each party may present and examine witnesses and offer their own

documents or other exhibits, but the ULJ “must ensure that relevant facts are clearly and

fully developed.” Minn. R. 3310.2921.

Lassiter contends that the ULJ failed to develop the record adequately because she

denied his request to subpoena a video expert. He asserts that expert review was

necessary because of the ULJ’s admittedly limited computer knowledge and the poor

quality of the security footage. We disagree. In response to Lassiter’s subpoena request,

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the ULJ clarified that the request was grounded in his assertion that the video from a

particular camera angle shows the customer striking him first. During the hearing, the

ULJ carefully reviewed multiple videos, zoomed in and viewed the incident from the

angle Lassiter requested, and asked clarifying questions of both Lassiter and Rowland

while reviewing the footage. The fact that the ULJ ultimately disagreed with Lassiter’s

interpretation of the video evidence does not mean she did not fully develop the record.

Lassiter also contends that the ULJ deprived him of a fair hearing by not

permitting him to call a credibility witness. The ULJ explained that ULJs do not

“typically allow witnesses to come in and talk about someone’s credibility unless they

were specifically involved in the events leading up to the termination.” In response,

Lassiter’s counsel indicated that one witness was “identified for credibility issues,” and

said, “I understand if he can’t speak today.” Lassiter did not subsequently ask to call that

witness. But he did present three other witnesses, and the ULJ permitted extensive

testimony as to numerous factors that bear on Lassiter’s credibility. On this record, we

conclude that the ULJ did not improperly limit the evidence bearing on Lassiter’s

credibility.

III. Lassiter committed employment misconduct.

Misconduct is “any intentional, negligent, or indifferent conduct . . . that displays

clearly: (1) a serious violation of the standards of behavior the employer has the right to

reasonably expect of the employee; or (2) a substantial lack of concern for the

employment.” Minn. Stat. § 268.095, subd. 6(a) (2014). Generally, refusing to follow an

employer’s reasonable policies and requests constitutes misconduct. Schmidgall v.

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FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002). But “conduct an average reasonable

employee would have engaged in under the circumstances” and “good faith errors in

judgment if judgment was required” are not employment misconduct. Minn. Stat.

§ 268.095, subd. 6(b)(4), (6) (2014).

Lassiter contends that his conduct on December 28 was not employment

misconduct but, rather, what an average, reasonable bouncer would have done and, at

most, a good-faith error in judgment. We are not persuaded. As we discussed above, the

record substantially supports the ULJ’s findings that Lassiter was aware of policies

requiring him to use as little force as possible in intervening with an unruly customer and

never to touch a customer, and that he violated these policies by aggressively confronting

and initiating physical contact with the customer. The ULJ also expressly found that

Lassiter’s conduct was not merely a good-faith error in judgment because he initiated

contact after being repeatedly instructed not to touch customers, and after receiving a

warning. We agree and conclude that Lassiter’s knowing violation of his employer’s

reasonable policies constitutes employment misconduct.

Affirmed.

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