Dan Casey, Relator,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-0304

Dan Casey,
Relator,

vs.

Minnesota Department of Corrections,
Respondent,

Department of Employment and Economic Development,
Respondent.

Filed November 18, 2019
Affirmed
Cleary, Chief Judge

Department of Employment and Economic Development
File No. 36763311-3

Dan Casey, Hammond, Wisconsin (pro se relator)

Minnesota Department of Corrections, St. Paul, Minnesota (respondent employer)

Anne B. Froelich, Departme nt of Employment and Econom ic Development, St. Paul,
Minnesota (for respondent department of employment and economic development)

Considered and decided by Florey, Pres iding Judge; Cleary, Chief Judge; and
Peterson, Judge.


 Retired judge of the Minnesota Court of Ap peals, 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
CLEARY, Chief Judge
In this certiorari appeal from an unemployment-law judge’s (ULJ) decision, relator
argues that he is entitled to unemployment bene fits and that the ULJ should have granted
him another evidentiary hearing. We affirm.
FACTS
Relator Dan Casey worked as a correc tions officer for respondent Minnesota
Department of Corrections (DOC) from 2011 to September 2018. In July 2018, Casey and
other corrections officers were transporting an inmate. The inmate was uncooperative,
resistant, and threatening to hurt officers. The officers placed the inmate in a restraint chair
with handcuffs, a waist chain, and a spit mask. During the transfer, using his elbow, Casey
struck the inmate near his nose and mouth.
The DOC trains officers on its use-of-force policy, which authorizes officers to use
force in some circumstances, such as when an inmate is resistant. Striking an inmate in the
face is not a permissible technique under this policy. As a result, the DOC discharged
Casey for improper use of force.
Casey applied for and was determined eligible for unemployment benefits, and the
DOC appealed. A ULJ conducted an eviden tiary hearing, during which the parties
presented conflicting evidence on whether Casey struck the inmate in the face or whether
he instead used a technique permitted under DOC policy. The ULJ determined Casey to
be ineligible for unemployment benefits because he was discharged for misconduct. Casey

3
submitted a request for reconsid eration, which the ULJ denied. This certiorari appeal
follows.
D E C I S I O N
I. Casey is ineligible for unemployment benefits.
An employee is ineligible for unemployment benefits if she or he was “discharged
because of employment misconduct.” Minn. Stat. § 268.095, subd. 4(1) (2018). This court
may reverse or modify the ULJ’s decision “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 hearing record as submitted.”
Minn. Stat. § 268.105, subd. 7(d)(5) (S upp. 2019). Whether an employee committed
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 a fact question
that we will review in the light most favorab le to the ULJ’s decision and will affirm if
substantial evidence supports the ULJ’s finding. Skarhus v. Davanni’s Inc., 721 N.W.2d
340, 344 (Minn. App. 2006). Whether the act constitutes misconduct is a question of law
that we review de novo. Stagg, 796 N.W.2d at 315.
A. Substantial evidence s upports the ULJ’s findings.

The ULJ found that Casey, using his elbow, intentionally struck the inmate near his
nose and mouth, causing the inmate to bleed. But Casey contends that he attempted a
brachial stun, a permissible technique under DOC policy.
Substantial evidence in the record supports the ULJ’s findings. The DOC presented
two witnesses, David Reishus, the DOC’s a ssociate warden of operations, and Sheryl

4
Maxwell, a DOC human-resources director. Both reviewed video footage of the incident.
Reishus testified that Casey struck the inmate in the face with his el bow, hard enough to
cause immediate, significant bleeding from the inmate’s nose and mouth. Maxwell testified
that the video of the incident shows that, after Casey struck the inmate, the spit mask filled
with blood. Reishus also explained that he spoke to the officer in charge during the incident
who confirmed that Casey intentionally struck the inmate near his nose and mouth.
Casey did not document his use of force in the incident report even though the DOC
requires staff to do so. It was not until after the DOC began investigating the incident that
Casey amended his report to include his use of force. Casey testified that he forgot to
include the incident in his report because of the stress and anxiety of the situation.
Casey attacks the ULJ’s credibility determinations and advances his version of the
events. He maintains that he attempted a brachial stun to prevent the inmate from spitting
on him and that he did not strike the inmate’s face or mouth. But Reishus testified that the
video shows that Casey struck the inmate’s face. Reishus stated that Casey did not attempt
a brachial stun because he delivered the strike to the middle of the inmate’s face, while a
brachial stun is meant to be delivered below the ear and above the shoulder on either side
of the head. We defer to the ULJ’s credibility determinations and do not reconcile
conflicting evidence on appeal. Skarhus, 721 N.W.2d at 344.
When, as here, the credibility of the involved parties te stifying had a “significant
effect” on the ULJ’s decision, the ULJ must “set out the reason for crediting or discrediting
that testimony.” Minn. Stat. § 268.105, subd. 1a(a) (2018). Casey contended that the DOC
discharged him because he wrote up a lieutenant for an unprofessional action a few months

5
before his discharge. The ULJ found that this was an illogical explanation for his
termination. To the contrary, the ULJ credited Reishus and Maxwell’s testimony because
it provided a consistent, logical, and contemporaneous explanation for the chain of events
that occurred. The ULJ al so discredited Casey’s te stimony because it contained
inconsistencies. For example, Casey alleged th at the inmate spat in his face before he
attempted the brachial stun. But later he testif ied that, as soon as the inmate attempted to
spit on him, he was removed from the situation. He then testified that the inmate spat on
him after he attempted the brachial stun. Moreover, the ULJ did not find it believable that
Casey forgot to include the us e of force in his incident report because the event was
significant enough to require him to seek medical attention because the inmate spat blood
on him.
The reasoning behind the ULJ’s credibility determinations meets the statutory
requirement of Minn. Stat. § 268.105, subd. 1a(a). See Ywswf v. Teleplan Wireless Servs.,
Inc., 726 N.W.2d 525, 532-33 (Minn. App. 2007) (considering reasonableness of testimony
as compared to other evidence when making credibility determinations). We affirm the
ULJ’s finding that Casey intentionally struck the inmate near his nose and mouth.
B. Casey’s conduct is employment misconduct.
Minnesota statutes define employment misconduct as any intentional, negligent, or
indifferent conduct, on or off the job, that displays a serious violation of the standards of
behavior the employer has set. Minn. Stat. § 268.095, subd. 6(a) (Supp. 2019).
An employer is entitled to establish reasonable policies and requests. Sandstrom v.
Douglas Mach. Corp., 372 N.W.2d 89, 91 (Minn. App. 1985). An employee’s decision to

6
knowingly violate an employer’s reasonable policies amounts to misconduct disqualifying
the employee from receiving unemployment benefits. Schmidgall v. FilmTec Corp., 644
N.W.2d 801, 806 (Minn. 2002). A single incident of an employee deliberately choosing a
course of action adverse to the em ployer can constitute misconduct. Colburn v. Pine
Portage Madden Bros., 346 N.W.2d 159, 161 (Minn. 1984).
Casey violated the DOC’s use-of-force policy. The policy states that officers may
only use an amount of force reas onable and necessary to control or resolve the situation,
and they must only use techniques instruct ed by the DOC. The DOC does not tolerate
excessive force.
Casey conceded in his testimony that inte ntionally striking an inmate in the face
violates DOC policy. He does not contend that the DOC’s policy is unreasonable. Rather,
his argument is premised on his assertion that he attempted a brac hial stun and did not
strike the inmate in the face. But, for the reasons stated above, the record supports the
ULJ’s finding that Casey intentionally struck the inmate in the face.
Casey’s conduct amounts to employment mi sconduct. Minnesota statutes provide
that, if an inmate resists the lawful authority of a corrections officer or refuses to obey the
corrections officer’s reasonable demands, the officer may enforce obedience with the use
of force. Minn. Stat. § 243.52 (2018). The officer is permitted to use “reasonable force.”
Minn. Stat. § 609.06, subd. 1 (2018). The DOC’s implementation of a use-of-force policy
in accordance with the statute is reasonable.
Casey testified that he was aware of th e use-of-force policy. The DOC conducts
use-of-force training annually. And Casey was on the “A Team,” which is a group of

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officers that responds to emergency incide nts and is generally more experienced in
handling disorderly inmates. The record is clear that Casey was aware that an intentional
strike to an inmate’s face violat ed the DOC’s use-of-force policy. See Schmidgall, 644
N.W.2d at 806 (stating that employee’s knowing violation of policy is misconduct).
Conduct is not employment misconduct if an average employee would have
engaged in the same conduct under the circumstances. Minn. Stat. § 268.095, subd. 6(b)(4)
(Supp. 2019). Casey argues th at an average employee would have acted as he did under
the same circumstances and that he had “no other options” than to attempt a brachial stun.
But again, this argument relies on Casey’s c ontention that he attempted a brachial stun,
which is contrary to the ULJ’s finding. Because Casey knowingly violated the DOC’s
reasonable use-of-force policy, we affirm the ULJ’s determination that he is ineligible for
unemployment benefits.
II. The ULJ did not abuse its discretion by declining to hold an additional hearing
to allow Casey’s witnesses to testify.

We defer to the ULJ’s decision not to ho ld an additional evidentiary hearing and
will reverse that decision only upon an abuse of discretion. Skarhus, 721 N.W.2d at 345.
Casey contends that, given the opportunity, he would have secured witnesses to dispute the
DOC’s testimony. We construe this argument to be that the ULJ should have ordered an
additional hearing to allow Casey’s witnesses to testify after his motion for reconsideration.
On a request for reconsideration, a ULJ must order an additional evidentiary hearing
if either party shows that evidence not submitted at the hearing (1) would likely change the
outcome and the party had good cause for not having previously submitted the evidence,

8
or (2) would show that the evidence submitted at the hearing was likely false and the false
evidence affected the outcome. Minn. Stat. § 268.105, subd. 2(c)(1)-(2) (2018). Good
cause is a reason that prev ented a reasonable person ac ting with due diligence from
presenting the evidence. Id.
Casey submitted a request for reconsiderati on to the ULJ, arguing that he was not
able to fully prepare for the hearing, and that, had he known the DOC’s witnesses would
be testifying, he would have secured witnesses to dispute their testimony. The ULJ denied
his motion because, prior to the hearing, Casey was aware that Reishus and Maxwell would
be participating. Moreover, the ULJ found th at Casey did not show good cause for his
failure to present witnesses. Casey has not made a showing that he met any of the statutory
factors necessitating an additional hearing. He has not provided any specificity as to who
would be testifying or what they would be testifying to. He merely states that his witnesses
would corroborate his story. The ULJ did not abuse its discretion by declining to hold an
additional evidentiary hearing.
Affirmed.