State of Minnesota, Department of Corrections, employer, Relator,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-1748

State of Minnesota,
Department of Corrections,
employer,
Relator,

vs.

Steven Hammer,
Respondent,

Bureau of Mediation Services,
Respondent

Filed June 11, 2018
Reversed
Worke, Judge

Bureau of Mediation Services
File Nos. 17-VPO-0521, 17-PG-0350

Lori Swanson, Attorney General, Jason Marisam, Assistant Attorney General, St. Paul,
Minnesota (for relator State of Minnesota, Department of Corrections)

Gregg M. Corwin, Joshua D. Hegarty, Gregg M. Corwin & Associate Law Office, P.C.,
St. Louis Park, Minnesota (for respondent Steven Hammer)

Considered and decided by Ross, Presidi ng Judge; Peterson, Judge; and Worke,
Judge.

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U N P U B L I S H E D O P I N I O N
WORKE, Judge
Relator Minnesota Department of Corrections (DOC) challenges an arbitrator’s
order requiring it to reinstate respondent to employment. Because the arbitrator erred in
determining that the DOC lacked just cause to terminate respondent, we reverse.
FACTS
In December 2011 , r espondent Steven Hammer began serving as warden at
Minnesota Correctional Facility (MCF)-Rush City (RC). In 2015, Hammer transferred to
become warden at MCF-Stillwater. In August 2016, the human-resources (HR) director at
MCF-RC, reported to a deputy commissioner that Hammer engaged in inappropriate
behavior during a meeting with an employee when Hammer was at MCF-RC.
According to the HR director, in April 2014, she, Hammer, and the employee met
to discuss a harassment complaint that the employee had filed. Hammer “snapped,” called
the employee “a f-cking worthless employee . . . [and] a bully,” and tore up the complaint,
saying “this is what I think of your complaint. It is not worth th e paper it is written on.”
The HR director reported Hammer’s conduct to her supervisor, who r eported the incident
to Hammer’s supervisor at the time. Hammer also called his supervisor after the meeting
and told him that it did not go well and that he “lost his temper .” Hammer’s supervisor
was unaware of the allegation that Hammer tore up the complaint.
The HR director also reported to the deputy commissioner that other employees
documented additional instances of Hammer’s inappropriate behavior. The HR director’s
report was forwarded to Hammer’s supervisor. During a preliminary review, Hammer’s

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supervisor spoke with Hammer’s former executive assistant who had administrative rights
to Hammer’s state e mail account. The executive assistant reported that she starte d
collecting some of Ha mmer’s emails after noticing inappropriate emails. Several emails
exchanged with females contained sexual content. For example, Hammer sent an email to
a female asking, “Face time naked?” Hammer responded to a female asking if he would
make her his secretary, “Hmmmm secretary? I’m thinking naughty thoughts.” He sent an
email to another female stating, “Friendship and naked pics is a good start.” In response
to an email from a female asking Hammer , “Your what misses m e?” he replied, “Head
heart body penis not necessarily in that order.” Hammer also engaged in an e mail
exchange with a female arranging a “nooner,” a meeting that he was “very excited” about.
Two emails exchanged with male employees also contained sexu al content. In
response to an email that Hammer received from a male employee complimenting his
personality, Hammer replied, “You think that’s good you should see me naked.” In an
email exchange with a male correctional officer (CO) who had been injured on the job, the
CO stated, “My jaw hurts I feel like a pussy now, ” to which Hammer replied, “There’s
nothing about you that’s pussy except when you’re getting some.”
The executive assistant also provided emails that were not sexual in nature. In these
messages, Hammer disclosed private information about employees to a female MCF -RC
employee. For example, regarding a male employee, Hammer stated, “I think I might have
a suspension waiting for him.” Hammer also sent an email disclosing an employee’s plan
to cancel a vacation, he forwar ded the email exchange with the CO who had been injured

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on the job, and sent an e mail explaining what transpired during a meeting with three
employees.
The MinnCor Industry Director at MCF-RC, who is part of the warden’s executive
team, also documented Hammer’s inappropriate behavior. The MinnCor director reported
an incident when Hammer looked inappropriately at a young female intern, and asked the
MinnCor director if he thou ght the intern was good looking. The intern was Hammer’s
executive assistant’s daughter. Hammer’s comment bothered his executive assistant, and
her daughter stated that the incident was “a little creepy.” The executive assistant did not
raise the issue with Hammer at the time, because she did not know how to address it. The
MinnCor director also recalled an incident when Hammer showed him a photo of a woman
and asked, “How would you like those long legs wrapped around you?” In the fall of 2014,
the MinnCor d irector discussed Hammer’s inappropriate behavior with Hammer’s
supervisor.
An examination of all relevant information led to the decision to conduct an
investigation into Hammer’s conduct . An i nvestigator reviewed documents and forensic
data from Hammer’s state d evices, including his cell phone and computers. The
investigator recovered a Word document that related to a request from the Minneapolis
Police Department (MPD) regarding a background investigation on a former female
employee. Although this request was to be completed by HR, Hammer emailed a response,
indicating that the former employee left the DOC in good standing when she had actually
been non-certified during her probationary period and had been reprimanded for making
sexually inapp ropriate comments to a coworker. The investigator also discovered that

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Hammer had forwarded a female MCF -RC employee information about an offender who
was assaulted. Hammer also sent this female employee an email related to the termination
of an employee, indicating that the termination was due to alcohol use.
The investigator also received information that Hammer h ad testified at a
lieutenant’s arbitration hearing, supporting the lieutenant’s ten-day suspension. Following
the hearing, however, Hammer sent the lieutenant a text message stating, “Hard day. I
hope you get your 10 days back.” After the arbitrator reduced the suspension, Hammer
sent a text message to the lieutenant congratulating him.
The investigator interviewed several individuals , i ncluding Hammer. Hammer
revealed that he expe rienced difficulties with the HR director . Hammer recalled the
meeting in 2014 with the employee, and reported that the employee was trying to intimidate
him and, at one point, he was concerned that the employee was going to punch him.
Hammer denied using profanity or tearing up a document, but admitted that he called the
employee a bully. The investigator concluded that Hammer “engaged in abusive,
intimidating and disrespectful ways toward employees.”
Hammer admitted to sending and receiving the emails containing sexual content and
conceded that—although the e mails to the male employees were either a joke or not
offensive to the receiving party —the c ontent of the e mails was inappropriate and in
violation of DOC policy. Although Hammer denied looking at the young female intern
inappropriately, the investigator concluded that Hammer “engaged in inappropriate and
sexually explicit communications (using DOC accounts), and gestures with employees and
others.”

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Hammer admitted to receiving a background -investigation request from the MPD,
but reported that he did not recall completing or submitting it to the MPD. The investigator
concluded that Hammer falsified an employment reference based on the Word document
and the fact that the employee worked for Hammer at the time she received a reprimand.
Hammer admitted to corresponding through his state e mail account with a female
employee, explaining that she was his “personal support person.” Hammer explained that
he did not reveal confidential information, however, because the female employee was a
union representative and was independently aware of personal situations surrounding the
individuals mentioned in the emails. The investigator concluded that Hammer conducted
himself in an unprofessional manner by releasing private information about staff and
offenders.
Hammer admitted to sending a text message to the lieut enant. Hammer stated that
he had recommended a one -day suspension for the lieutenant, but the suspension was
increased by leadership. Hammer said that he testified at the arbitration hearing in support
of the ten-day suspension after being made aware of the rationale behind it. Hammer stated
that he sent the text message to support the lieutenant because the lieutenant appeared
upset at the hearing. The investigator concluded that Hammer “had inappropriate
communication with a staff member concerning a discipline related arbitration process.”
On October 19, 2016, Hammer was terminated for cause, in accordance with Minn.
Stat. § 43A.33 (2016), for violating the DOC’s policies related to personal code of conduct,
respectful workplace, sexual harassment, electronic communications, and personnel files.

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Hammer was informed that his “ actions resulted in a breach of the trust and confidence
that are required for [his employment] positions.”
Hammer appealed the termination to the Bureau of Mediation Services. On October
10, 2017, following a two-day hearing,1 the arbitrator submitted his opinion and award. He
determined that “[a]t best, the [DOC] has clearly demonstrated that [Hammer] sent sexually
explicit emails in violation of the electronic communica tions policy.” The arbitrator
determined, however, that the DOC failed to prove that Hammer’s policy violations were
serious enough to bypass discipline and move directly to discharge. The arbitrator found
that the DOC failed to meet its burden of just cause, primarily because the entire case was
“built on a falsehood,” finding that the HR director “ inappropriately set in motion an
investigatory process designed to strike back at [Hammer] for personal reasons and not
because she was con cerned about compl iance with DOC policy and procedures.” The
arbitrator ordered Hammer reinstated. The DOC filed a petition for writ of certiorari
seeking review of the arbitrator’s award.
D E C I S I O N
Certiorari review is limited to “questions affecting the jurisdic tion of the
[government body], the regularity of its proceedings, and, as to merits of the controversy,
whether the order or determination in a particular case was arbitrary, oppressive,
unreasonable, fraudulent, under an erroneous theory of law, or withou t any evidence to
support it.” Dietz v. Dodge Cty., 487 N.W.2d 237, 239 (Minn. 1992) (quotation omitted).

1 There is no transcript of the hearing. The facts are as presented in the investigative report.

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“As a reviewing court, we will not retry facts or make credibility determinations, and we
will uphold the decision if the lower tribunal furnished a ny legal and substantial basis for
the action taken.” Staeheli v. City of St. Paul , 732 N.W.2d 298, 303 (Minn. App. 2007)
(quotation omitted); see State ex rel. O’Connell v. Canfield, 166 Minn. 414, 415, 208 N.W.
181, 181 (1926) (stating that “[n]o eviden ce is taken” and “no findings of fact or
conclusions are made” on certiorari appeal); see also Zweber v. Credit River Twp. , 882
N.W.2d 605, 613 (Minn. 2016) (noting that this court cannot weigh evidence as a trier of
fact in a certiorari appeal).
The DOC a rgues that the arbitrator “erred in his application of the statutory just
cause standard” and misinterpreted the DOC’s policy allowing for termination. Under the
applicable statute, “No permanent employee in the classified service shall be reprimanded,
discharged, suspended without pay, or demoted, except for just cause. ” Minn. Stat.
§ 43A.33, subd. 1. “Just cause” “includes . . . consistent failure to perform assigned duties,
substandard performance, insubordination, and serious violation of written pol icies and
procedures, provided the policies and procedures are applied in a uniform,
nondiscriminatory manner. ” Id., subd. 2. The DOC asserts that it had just cause to
terminate Hammer for serious violations of written policies and procedures.
The arbi trator determined that the DOC met its burden to prove that Hamm er
violated only the electronic -communications policy. The arbitrator was not satisfied that
the DOC proved that Hammer engaged in abusive and disrespectful conduct toward
employees because the main incident supporting this allegation was the meeting that
occurred in April 2014. The arbitrator noted that this incident was reported at the time to

9
Hammer’s supervisor, but “none of the[] leaders of the DOC felt compelled to take a ny
action” against Hammer in 2014.
The record supports the arbitrator’s determination that the April 2014 incident was
reported to several individuals at the DOC and that no investigation into Ha mmer’s
behavior was conducted. However, the information pr ovided to Hammer’ s supervisor
lacked detail and did not include a written complaint; thus , no formal decision was made
to not take action against Hammer at that time. Hammer’s supervisor stated that if he had
been aware that Hammer tore up a complaint in front of the complainant, he would have
investigated that allegation. The arbitrator stated that the record demonstrated that the HR
director “inappropriately set in motion an investigatory process designed to strike back at
[Hammer] for personal reasons.” Regardless of the HR director’s motivation for reporting
Hammer’s conduct, Hammer engaged in the conduct and admitted to his supervisor that he
“lost his temper.”
The record shows that Hammer violated the DOC ’s policy regarding personal
conduct of employees, which requires employees to treat fellow employees with “respect
and courtesy at all times” and to “respond to conflicts and disagreements in a positive and
constructive manner.” Additionally, the record shows that Hammer violated the respectful-
workplace policy requiring that “all individuals are treated with professionalism and
respect.”
The arbitrator also found that the DOC failed to prove that Hammer falsified the
background report submitted to the MPD. The arbitrator determin ed that, while Hammer
failed to have HR complete the report , the DOC failed to prove that Hammer completed

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the information in the Word document. But the document was discovered on Hammer’s
computer and a forensic analysis revealed that he was the last author. Hammer merely told
the investigator that “he did not remember completing the background questionnaire” and
“could not recall sending something this lengthy.” Hammer was unable to remember
completing the report. But he did not deny completing the report. Ba sed on the forensic
analysis and no evidence to the contrary, the record shows that Hammer completed the
report that should have been completed by HR. And because the report included
information that conflicts with the former employee’s employment history at the DOC that
Hammer would have been aware of, the record shows that Hammer falsified an
employment reference.
Hammer admitted that he sent and received emails with sexual content, sent emails
containing private and confidential in formation, and sent text messages to the lieutenant
following the arbitration hearing . The arbitrator concluded that Hammer violated the
DOC’s electronic-communications policy as it related to the e mails with sexual content .
But the arbitrator determined that the DOC failed to prove that the violation was serious
enough to bypass progressive discipline and move immediately to discharge. The
arbitrator’s rationale was that the emails and behaviors alleged to be sexually inappropriate
“relate to events purported to have occur red as many as two years before they were
reported, rendering investigatory conclusions meaningless.” The arbitrator determined
that, despite Hammer’s violation of DOC policy, the DOC should have imposed
progressive discipline rather than discharge.

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Under the DOC’s electronic -communications policy , an employee who fails to
comply with electronic-communications procedures is subject to disciplinary action. The
policy provides that inappropri ate use subjects an employee to discipline, “up to and
including discharge.” In order for the DOC to discharge Hammer for sending the emails it
had to prove that the e mails fell into a category of inappropriate use. Under the policy,
examples of inappropriate use include, but are not limited to: illegal activity, wagering or
selling, harassment, fund-raising, commercial activities, political promotion, and receipt or
transmission of sexually explicit material. Hammer’s electronic-communications violation
fell into this inappropria te-use category b ecause it included the transmission of sexually
explicit material.
Additionally, Hammer’s transmission of private information on employees violated
the DOC personnel-files policy and electronic-communications policy. Under the policy,
personnel data includes “all data collected on a current or former employee.” See Minn.
Stat. § 13.43, subd. 1 (2016). Under section 13.43, subdivision 4, “personnel data [not
listed as public data] is private data on individuals [that] may be released pu rsuant to a
court order.” Information that Hammer disclosed in e mails—including the likely
suspension of an employee, an employee’ s plan to cancel a vacation, and the termination
of an employee likely due to alcohol use—is not public data. See id., subd. 2 (2016) (listing
public personnel data) . The willful transmission of private data is a violation of the
Minnesota Government Data Practices Act. See Minn. Stat. § 13.09 (2016) (stating that a
person who willfully violates provisions of the act is guilt y of a crime and that a willful
violation constitutes just cause for discharge of a public employee). Hammer’s electronic-

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communications violation involved inappropriate use because it included illegal activity.
Thus, the DOC was not required to impose p rogressive discipline when the DOC policy
allows for discharge.
Reversed.