In re the Matter of St. Paul Area Electrical JATC Registered Apprenticeship Program and Damon Doss.

This opinion will be unpublished and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
A19-0407

In re the Matter of St. Paul Area Electrical JATC
Registered Apprenticeship Program and Damon Doss.

Filed December 16, 2019
Affirmed
Kirk, Judge*

Department of Labor and Industry

Stephen W. Cooper, Stacey R. Everson, The Cooper Law Firm, Chartered, Minneapolis,
Minnesota (for relator Damon Doss)

Keith Ellison, Attorney General, Kevin Jonassen, Assistant Attorney General, St. Paul,
Minnesota (for respondent Minnesota Department of Labor and Industry)

Justin D. Cummins, Cummins & Cummins, LLP, Minneapolis, Minnesota (for respondent
St. Paul Area Electrical JATC Registered Apprenticeship Program)

Considered and decided by Johnson, Presiding Judge; Florey, Judge; and Kirk,
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
KIRK, Judge
In this certiorari appeal under Minn. Stat. § 178.09 (2018), relator Damon Doss
challenges the commissioner of labor and industry ’s determination that relator’s
termination from an apprenticeship program did not violate an apprenticeship agreement.
Relator asserts that (1) the failure to allow discovery and follow other procedural rules
violated relator’s due -process rights; (2) the commissioner’s decision is unsupported by
substantial evidence; and (3) the commissioner failed to consider discriminatory treatment
of relator and the “failure of respondents to fulfill their broader legal responsibilities.”
Because we conclude that the relator’s termination did not violate the apprenticeship
agreement, we affirm.
FACTS
The Apprenticeship Program
Respondent St. Paul Area Electrical JATC Registered Apprenticeship Program
(JATC) is a registered apprenticeship program that operates under Minn. Stat. §§ 178.01-
.11(2018), and is approved by the Minnesota Department of Labor and Industry (D OLI).
DOLI registers approved apprenticeship programs, provides a p rocess to review
complaints, and provides a process for appeal under Minn. Stat. §§ 14.63-.69 (2018). Each
registered apprenticeship program is responsible for its own day-to-day operations.
JATC provides electrical training and education for apprentices in their
apprenticeship program. Additionally, JATC coordinates and sends apprentice electricians
to independent jobsites where companies are responsible for overseeing the apprentices

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who work with them. JATC has an apprentice policy manual that provides the rules,
regulations, and responsibilities of the apprentices involved in the program. Upon being
accepted into the program, all apprentices receive this manual. The manual may be updated
at any time, as it was in 2016.
Through the five -year apprenticeship program, each apprentice is sent out to an
average of five or six jobsites. The actual number of jobsites can vary due to the job market
and whether the jobs are long -term or short -term projects. Each apprentice receives
periodic review s from their supervisors on each of the jobsites. These revi ews are
completed on a standard form for JATC apprenti ces, regardless of the company or jobsite
at which the apprentice is working. JATC provides the review forms, but is not involved
in filling out, analyzing, or instructing employers how to fill out the forms. JATC requires
that on a scale of 0-130, an apprentice must score at least 50 to be considered to have had
a satisfactory review. An apprentice who receives a score below 50 is considered to have
received an unsatisfactory review and is subject to progressive discipline. In relevant part,
the progre ssive disciplin e policy outlines what happens when an apprentice receives
unsatisfactory reviews, is late in turning in their timesheets, or appears multiple times
before the JATC apprenticeship review committee (the committee).
Doss’s Involvement in the Apprenticeship Program
In April 2015, JATC accepted relator Damon Doss into its apprenticeship program.
Between April 2015 and February 2018, Doss worked at 13 jobsites. He was terminated
from most of the m due to reduction s in the force. In April 2015, JATC sent Doss to his
first jobsite prior to sending him to any training. In July 2015, Doss received his first

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unsatisfactory review after being let go from this jobsite. As a result, he had an oral
conversation with the program training director (the director) regarding his performance.
In November 2015, Doss received his second unsatisfactory review. In December
2015, Do ss emailed the director regarding his unsatisfactory evaluations and asked for
additional training. In January 2016, Doss received h is third unsatisfactory review. Per
JATC’s progressive discipline policy, Doss appeared at a regular meeting of the committee
regarding his unsatisfactory work evaluations. As a result of his unsatisfactory reviews, he
was required to attend three extra tutoring sessions.
In August 2016, Doss received his fourth unsatisfactory review. He appeared at the
September 12, 2016 committee meeting, received a one-week suspension and was required
to have monthly employer evaluatio ns. In January 2018, Doss rece ived his fift h
unsatisfactory review. He appeared before the committee in February 2018 regarding this
review and possible termination from the program.
In addition to the five unsatisfactory job reviews, Doss received four notices for late
timesheet sub mission. Per the progressive disciplin e policy, he appeared at committee
meetings two times due to the late timesheets. Aft er the fourth late timesheet, Doss was
notified that if he submitted one more late timesheet, he would be terminated.
Doss indicates that he contacted JATC and the director multiple times throughout
his apprenticeship in order to address concerns he had with jobsites and with the program.
On August 9, 2015, Doss sent an email complaint to the d irector claiming that his co -
workers were rude to him, he felt isolated, and he had trouble working at his current jobsite.

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The next day, the director visited Doss on his jobsite. Doss said that the jobsite was much
better, everything was going well, and he did not require anything further on this complaint.
Doss did not contact the director regarding concerns again until July 20, 2016. That
day he met with the director to dis cuss problems he had on the job site and he was
encouraged to ask questions of his journey worker.1
At his request, Doss appeared at the May 8, 2017 JATC committee meeting and
gave a presentation on his qualifications. He stated that a racial slur was directed toward
him at his last jobsite, but did not provide any further details when asked. He was also told
to report any further racial incidents to his shop steward and JATC. At the February 12,
2018 committee meeting, the committee inquired whether Doss felt that his race had
anything to do with his unsatisfactory evaluations. Doss told the committee that he did not
believe any of his evaluations had to do with his race.
In February 2018, JATC voted to remove Doss due to unsatisfactory employment
evaluations and violations of JATC policies and procedures.
On April 9, 2018, Doss filed a complaint with DOLI’s Division of Labor Standards
and Apprenticeship (the d ivision) alleging, among other things, that JATC violated his
apprenticeship agreement and that they violated the Equal Employment Opportunity (EEO)
standards when he was terminated from the p rogram. On July 9, 2018, the d ivision
determined that JATC did not violate the apprenticeship agreement.

1 A journey worker is an electrician who has obtained mastery in the field and can serve as
a mentor to apprentices.

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Doss appealed the division’s determination to the Apprenticeship Advisory Hearing
Board (the board) . Doss requested that the board permit discovery prior to the hearing.
The board denied his request, stating they did not have the authority to permit discovery.
At the hearing on December 19, 2018, Doss was represented by counsel, called witnesses,
and conducted direct- and cross-examination of witnesses. The board recommended that
the acting commissioner of DOLI uphold the division’s determination. The commissioner
adopted the recommendation , made minor factual corrections, and upheld the d ivision’s
determination. This certiorari appeal follows.
D E C I S I O N
I. The commission did not violate Doss’s due-process rights.

When reviewing agency decisions, this court follows “the fundamental concept that
decisions of administrative agencies enjoy a presumption of correctness, and deference
should be s hown by courts to the agencies’ expertise and their special knowledge in the
field of their technical training, education, and experience.” Reserve Mining Co. v. Herbst,
256 N.W.2d 808, 824 (Minn. 1977). Upon judicial review, t his court will uphold an
administrative agency’s decision unless its findings, inferences, conclusion, or decisions
are:
(a) in violation of constitutional provisions; or
(b) in excess of the statutory authority or jurisdiction
of the agency; or
(c) made upon unlawful procedure; or
(d) affected by other error of law; or
(e) unsupported by substantial evidence in view of
the entire record as submitted; or
(f) arbitrary or capricious.

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Minn. Stat. § 14.69 (2018).
Whether an agency has violated a person’s procedural due -process rights is a
question of law that this court reviews de novo. Sawh v. City of Lino Lakes , 823 N.W.2d
627, 632 (Minn. 2012). Procedural due process requires that a party receive “adequate
notice and an opportunity to be heard before being deprived of life, liberty, or property.”
Christopher v. Windom Area Sch. Bd. , 781 N.W.2d 904, 911 (Minn. App. 2010), review
denied (Minn. June 29, 2010). This court conducts a two -step analysis to determine
whether the government has violated an individual’s procedural due -process rights: first,
we identify whether the government has deprived the individual of a protected life, liberty,
or property interest ; second we determine whether the procedures followe d by the
government were constitutionally sufficient. Sawh, 823 N.W.2d at 632.
As an initial matter, the parties do not dispute that Doss has a property interest in
his employment through the apprenticeship agreement. Doss argues, however, that he did
not receive due process and the board did not follow a lawful procedure when it denied
him a contested hearing, denied his discovery request of JATC’s records, and did not accept
his supplemental briefs.
A. Contested-Case Hearing
A contested case is an ad ministrative proceeding in which the “legal rights, duties,
or privileges of specific parties are required by law or constitutional right to be determined
after an agency hearing.” Minn. Stat. § 14.02, subd. 3 (2018). The Minnesota
Administrative Procedure Act (MAPA), Minn. Stat. §§ 14.001 -14.69 (2018), does not
create a right to a contested -case hearing, but sets forth the proced ure for one .

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In re N. States Power Co., 676 N.W.2d 326, 332 (Minn. App. 2004). There is no right to
a contested-case hearing unless another statute grants that right. Id. If the legislature does
not require a contested-case hearing, the court can assume that one is not required under a
particular statute. Id. at 334.
Investigation and enforcement of apprent iceship agreements are controlled by
Minn. Stat. § 178.09. The statute provides that an individual may file a complaint with the
division. The decision of the division may be appealed to the commissi oner and the
commissioner will “convene a hearing board . . . appointed under section 178.02. . . . The
board shall hold a hearing on the appeal after due notice to the interested parties and shall
submit to the commissioner findings of fact and a recommended decision accompanied by
a memorandum of the reasons for it .” Minn. Stat. § 178.0 9, subd. 2. The commissioner
may adopt or disregard the recommendation of the hearing board. A party may appeal the
commissioner’s determination “ under sections 14.63 to 14.68 in the same manner that a
person aggrieved by a final decision in a contested case is entitled to judicial review.” Id.
Minn. Stat. § 178.09 provides for an appeal of a decision by the DOLI commissioner
in the same manner as from a contested-case hearing. But the plain language of Minn. Stat.
§ 178.09 does not provide for the right to a contested-case hearing before the agency. “Had
the legislature intended to require a contested-case hearing, it could have provided for one.”
N. States Power Co., 676 N.W.2d at 332. Doss did not have a statutory right to a contested-
case hearing, nor has he demonstrated a violation of his due-process right to be heard.

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B. Discovery
Doss also argues that his rights were violated when his discovery request was
denied. It is a fundamental tenet of administrative law that the powers of an administrative
agency can only be exercised in the manner prescribed by its legislative authorization.
Souden v. Hopkins Motor Sales, Inc. , 182 N.W.2d 668 , 673 (Minn. 1971). “Neither
agencies nor courts may, under the guise of statutory interpretat ion, enlarge the agency’s
powers beyond that which was contemplated by the legislative body. ” Waller v. Powers
Dep’t Store , 343 N.W.2d 655, 657 (Minn. 1984). “ [E]xplicit statutory or rulemaking
authorization is necessary before any system of discovery ma y be incorporated into the
administrative proceedings.” Id.
Minn. Stat. § 178.09 does not implicitly or explicitly contemplate any type of
discovery mechanism. Because there is no statutory authority to compel discovery, the
board was correct in denying this request. The board’s actions did not violate Doss’s due-
process rights.
C. Supplemental Briefs
Doss also argues that he was denied due process because the record was closed
immediately after his hearing on December 19, 2018, and he was not allowed to submit
supplemental briefs.2
At his hearing, Doss was able to call witnesses, conduct direct - and cross -
examination of witnesses, and su bmit exhibits. The board cl osed the record immediately

2 Both Doss and JATC submitted supplemental post-hearing briefs. However, because the
record was closed, the board did not accept them and did not read them.

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at the conclusion of the hearing, and did not consider either party’s p ost-hearing briefs.
Doss cites Minn. Stat. § 14.61 to support his argument that it was improper to deny his
post-hearing briefs. Minn. Stat. § 14.61 pertai ns to contested -case hearings, and as
discussed previously , the rules covering contested cases do not apply to Minn. Stat.
§ 178.09. Therefore, Minn. Stat. § 14.61 does not provide any legal authority for this claim.
Doss does not cite any additional aut hority to support his contention that his post-hearing
submissions should have been received , no r does he indicate how his post -hearing
submissions would have provided additional information that was not heard at the hearing.
It was not legal error to deny Doss’s post-hearing briefs, and it was not a denial of Doss’s
due-process rights. Doss was afforded a reasonable opportunity to be heard and was not
denied due process at the hearing.
II. The commissioner’s decision is supported by substantial evidence.

Doss argues that his termination from the apprenticeship program was not supported
by substantial evidence and that the decision was arbitrary and capricious. “An appellate
court may reverse or modify an administrative decision if substantial rights of th e
petitioners have been prejudiced by administrative findings, inferences, conclusions or
decisions that are unsupported by substantial evidence in view of the entire record, or [are]
arbitrary and capricious.” In re Express Surplus Status of Blue Cross & Blue Shield of
Minn., 624 N.W.2d 264, 277 (Minn. 2001). An agency’s decision is not arbitrary or
capricious as long as there is a rational connection between the facts found and the choice
made. Id.

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JATC followed its progressive disciplin e policy for each of Doss’s unsatisfactory
reviews and late timesheets. Doss did not provide any evidence to the contrary. Per
JATC’s manual, five unsatisfactory reviews and appearing before the disciplinar y board
three times are both grounds for termination from the apprenticeship program. Doss had
five unsatisfactory reviews, four late timesheets, and appeared before the disciplinary board
five times before he was terminated from the apprenticeship program. The division, the
board, and the commissioner all cited Doss’s five unsatisfactory reviews, and multiple
appearances in front of the committee as reasons for his dismissal from the program.
While Doss claims that he was terminated from the program for discriminatory
reasons, there is nothing in the record to indicate that this is the case. Additionally, when
appearing before the committee, Doss was asked whether he felt that any of his
unsatisfactory reviews were due to discrimination, and he said that he did not believe so.
Therefore Doss’s dismissal from the program was supported by substantial evidence
and was neither arbitrary nor capricious.
III. The commissioner did not “fail to consider their broader legal responsibilities”
or fail to consider the discriminatory treatment of Doss.

Doss asks this court to determine whether the c ommissioner “fail[ed] to consider
their broader legal responsibilities” and “failed to comply with mandatory laws governing
apprenticeship programs.” Doss argues that JATC did not enforce its EEO responsibilities,
critiques the format of his performance reviews and how the reviews were conducted, and
attempts to have this court determine whether JATC discriminated against him based on
his race.

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We do think that it is concerning that Doss was sent to 13 different jobsites in less
than three years, when the av erage apprentice has only five or six during their five -year
term as an apprentice . We additio nally think it is concerning that Doss received at least
one of his negative reviews before he had received any training as an electrician. And that
one of these reviews was filled out by an employer that Doss c omplained about to the
director. However, Minn. Stat. § 14.69 limits our authority to modify or reverse an
administrative agency decision. If a “ruling by the agency decision-maker is supported by
substantial evidence, it must be affirmed.” Blue Cross, 624 N.W.2d at 279. The burden is
on the relator to establish that the “findings of the agency are not supported by the evidence
in the record, considered in its entirety.” Id. (quotation omitted). Additionally, “[i]t is not
within the province of [appellate courts] to determine issues of fact on appeal.” Kucera v.
Kucera, 146 N.W.2d 181, 183 (Minn. 1966).
Doss is asking this court to de termine issues of fact that are outside this court’s
scope of review. He has not show n that the agency’s decision was not supported by
substantial evidence.
Because Doss received due process when he was terminated from the apprenticeship
program, and be cause the reasons for his termination were supported by substantial
evidence and were not arbitrary or capricious, we affirm the commissioner’s decision.
Affirmed.