Craig Hanson, Relator,

This opinion is nonprecedential except as provided by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

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0670

Craig Hanson,
Relator,

vs.

Autism Opportunities Foundation,
Respondent,

Department of Employment and Economic Development,
Respondent.

Filed March 1, 2021
Affirmed
Slieter, Judge

Department of Employment and Economic Development
File No. 37622981-3

Craig Hanson, Bloomington, Minnesota (pro se relator)

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

Autism Opportunities Foundation, St Louis, Missouri (respondent employer)

Considered and decided by Slieter, Presiding Judge; Je sson, Judge; and Cochran,
Judge.

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NONPRECEDENTIAL OPINION
SLIETER, Judge
Relator challenges an unemplo yment-law judge’s (ULJ) determination that he is
ineligible for unemployment benefits because he was discharged for employment
misconduct. Relator argues that his conduct did not constitute misconduct. Because the
ULJ’s conclusion that the relator was discharged following his use of an unauthorized and
pain-causing hold was supported by the record and the record was ad equately developed,
we affirm.
FACTS
In March 2018, relator Craig Hanson began working as a behavior therapist with
respondent Autism Opportunities Foundation, d/b/a Minnesota Autism Center (MAC), an
organization that provides services to indivi duals with autism. Hanson was discharged
from employment in 2019 following an incident at work during which he restrained a
client, resulting in injuries to the client’s right inner arm, right elbow, right knee, and left
shoulder blade.
MAC discharged Hanson from employment on the ground that he restrained the
client using an unauthorized hold. Hans on applied for and was denied unemployment
benefits by respondent Department of Employment and Economic Development (DEED).
Hanson challenged this determination and requested a hearing before a ULJ.
A ULJ heard testimony from Hanson and MAC’s human-resources manager and
received exhibits, including an incident report and statemen ts from two witnesses of the
incident. The ULJ issued writte n findings of fact affirmi ng DEED’s determination that

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Hanson was ineligible for benefits. Hanson filed a request for reconsideration, and the ULJ
affirmed its decision. This certiorari appeal follows.
DECISION
Hanson argues the ULJ erred in concludi ng that his actions constituted employment
misconduct and aggravated employment misconduc t. He also argues the ULJ failed to
develop the record by denying su bpoena requests he made at the hearing. As explained
below, we disagree with each assertion. Therefore, we affirm.
I. The ULJ did not err in concluding Hanson committed employment misconduct
and aggravated employment misconduct.

When reviewing a ULJ’s unemployment-benefits decision, our court may affirm or
remand for further proceedings, or we may reverse or modify the decision if it is
“unsupported by substantial evidence in view of the hearing record as submitted.” Minn.
Stat. § 268.105, subd. 7(d) (2018). “Credibility determinations are the exclusive province
of the ULJ and will not be disturbed on appeal.” Bangtson v. Allina Med. Grp., 766 N.W.2d
328, 332 (Minn. App. 2009) (quotation om itted). “Whether an employee engaged in
conduct that disqualifies the employee from unemployment benefits is a mixed question of
fact and law.” Stagg v. Vintage Place, Inc., 796 N.W.2d 312, 315 (Minn. 2011) (quotation
omitted). The employee’s involvement in the act is a question of fact, Skarhus v. Davanni’s
Inc., 721 N.W.2d 340, 344 (Minn. App. 2006), and factual findings are reviewed “in the
light most favorable to the de cision and should not [be distur bed] as long as there is
evidence in the record that reas onably tends to sustain them,” Stagg, 796 N.W.2d at 315

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(quotation omitted). But, “whether [the] particular act constitutes disqualifying
misconduct is a question of law that [appellate courts] review de novo.” See id.
Unemployment benefits are intended to pr ovide financial assistance to employees
who have been discharged from employm ent “through no fault of their own.” Id.
(quotation omitted). A worker who is discharged from employment for “employment
misconduct” or “aggravated employment misc onduct” is ineligible to receive such
benefits. Minn. Stat. § 268.095, subd. 4(1)-(2) (2018).
The ULJ concluded that Hanson was discharged for two forms of misconduct, and
we review each form below.
A. Employment Misconduct
Employment misconduct is de fined as “any intentional, negligent, or indifferent
conduct, on the job or off the jo b, that is a serious violation of the standards of behavior
the employer has the right to reasonably expect of the employee.” Id., subd. 6. Hanson
argues the record is insufficient to conclude that he committed employment misconduct.
We disagree.
MAC’s human-resources manager testified that Hanson was not authorized to
perform any type of hold on clients because “he had not passed the Safety Care training.”1
She indicated that instead of performing a hold, Hanson should have called for assistance
in managing the client. She further testified that no instance exists in which a one-person

1 Though not defined or described in detail in the record, we di scern that this is a class in
which employees learn procedures for handli ng clients, and that employees may become
certified through the course to perform various types of “holds” or restraining techniques.

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hold like the one Hanson performed is appropriate. She also indicated a behavior therapist
was in the room with Hanson at the time of the incident and that Hanson could have called
for her to assist him. The behavior therapist confirmed in a written statement that she saw
Hanson on the floor with the client after the client threw a yoga ball at someone.
A program coordinator was across the hall way at the time of the incident. The
program coordinator explained in a witness statement that she first heard the client “crying”
from across the hall and then saw Hanson restraining the client in a “one-person hold that
was not safety care approved.” She heard the client say “Stop, ow” as Hanson was getting
off him after performing the hold. Following her examination of the client soon afterwards,
the program coordinator noticed “abrasions on [the client’s] ri ght inner arm, right elbow,
right knee, and left shoulder blade” and submitted a corresponding injury report.
Hanson testified on his own behalf. Wh en the ULJ asked Hanson if he was
authorized to do “any type of hold” on “any” client, he did not answer directly and stated
that he took a “safety care” class twice but received only one certificate of completion. His
testimony suggests he was not allowed to perform holds after completing the first class. 2
After taking the course “the second time,” he stated he passed “everything except for . . .
the floor drop transition.” Hanson acknowledged that MAC “didn’t feel [he] was qualified
[to put holds on clients]” and ha d previously told him so. He indicated he was instructed

2 He testified: “You know, the certificate they presented me with was the first safety care
course that I took, and I was having problems with my lower back a nd hip at that point.
And so, I was doing everything right, but when you’re retreating away from the client you
weren’t supposed to put your hands on the ground or to push off the, a client. Quite frankly,
I’m 59 years old and overweight and, you know, it was very difficult for me physically to,
to duplicate that at that point and time.”

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by MAC to “move tables and chairs” out of the way in situations with difficult clients, but
that he decided to perform a hold here because the situati on was “extremely dangerous”
and “unusual,” and that performing a hold was in the interest of safety.
Hanson acknowledged that he never called for assistance and that the client suffered
injuries from Hanson’s conduct. He also tes tified that he “did no t violate the company
policy” and that he “made an attempt to use the proper hold” on the client.
Taken together, the testimony and reco rd contain substantial evidence of
employment misconduct. Substantial evidence is “(1) such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion; (2) more than a scintilla
of evidence; (3) more than some evidence; (4) more than any evidence; or (5) the evidence
considered in its entirety.” Minn. Ctr. for Envtl. Advocacy v. Minn. Pollution Control
Agency, 644 N.W.2d 457, 466 (Minn. 2002). Both the human-resources manager and
program coordinator stated that Hanson perform ed an unauthorized ho ld in violation of
MAC policy and contrary to what he was expected to do in this situation. Hanson provided
no evidence to suggest he was authorized to perform the hold. The record also contains an
email from the director of MAC which indicates that Hanson “[was] not certified to do any
holds.”
Hanson argues in his brief that he wa s “confused” by the ULJ’s question about
whether he was authorized to perform holds and that he gave a “c omplex and nebulous”
answer in an attempt to be truthful. However, the record reflects that the ULJ’s questioning
was straightforward. The ULJ allowed Hanson to present evidence, call witnesses, present
testimony, and make a closing statement. Th e ULJ’s understanding of the case was not

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limited to Hanson’s responses to the ULJ’s questions, and the ULJ did not limit Hanson’s
own testimony in any way.
Hanson argues that even if his co nduct was “employment misconduct,” three
exceptions apply: (1) that he acted as a reasonable employee would in the situation; (2) that
his conduct was a consequence of his inability or incapacity; or (3) that he made a good
faith error in judgment. See Minn. Stat. § 268.095, subd. 6(b)(4)-(6). Each argument is
addressed below.
1. Reasonable Employee
Conduct consistent with what an averag e, reasonable employee would have engaged
in under the circumstances is not employment misconduct. Id., subd. 6(b)(4). Hanson
argues he acted as an “average employee” would have under the circumstances. However,
the record shows he violated MAC’s safety rules, which MAC had a right to reasonably
expect its employees to follow. See Schmidgall v. FilmTec Corp. , 644 N.W.2d 801, 804
(Minn. 2002) (“As a general rule, refusing to abide by an employer’s reasonable policies
and requests amounts to disqualifying misco nduct.”). This exception is therefore
inapplicable because a reasonable person does not engage in activity that violates an
employer’s safety rules.
2. Inability or Incapacity
Conduct that “was a consequence of the a pplicant’s inability or incapacity” is also
exempted. Minn. Stat. § 268.095, subd. 6(b)(5). Hanson seems to argue that his age and
health rendered it difficult for him to safely perform the hol d or extract himself from the
client after performing the hold. Hanson did not decide to perform the hold because of his

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alleged inability or incapacity. Instead, the issue in this case is whether he departed from
MAC’s policy that he not perform the hold and, instead, call for assistance. Therefore, this
exception does not apply.
3. Good Faith Error in Judgment
Finally, if the behavior resulted from “goo d faith errors in ju dgment if judgment
was required” it is not misconduct. Id., subd. 6(b)(6). Hanson argues he performed the
hold in good faith for safety reasons and that he was perm itted to exercise “clinical
judgment” in restraining the client. Hanson was not required to make any judgment and
instead was to call for assistance, thus making this exception inapplicable. See Potter v.
Northern Empire Pizza, Inc., 805 N.W.2d 872, 877 (Minn. App. 2011) (stating that once
an employer has implemented a policy, employ ee’s duty is to follow that policy with no
discretion to choose otherwise).
In summary, substantial evid ence exists to support the ULJ’s conclusion that
Hanson’s conduct was employment misconduct, and no exception applies.
B. Aggravated Employment Misconduct
Hanson also implicitly argues that the ULJ erre d in deeming his conduct
“aggravated employment misconduct” by sugges ting that his behavior was an “accident”
that falls outside of the scope of the aggravated-employment-misconduct statute.
Minnesota Statutes section 268.095, subdivision 6a(b) describes two types of
aggravated employment misconduct. The type rele vant here states that “an act of patient
or resident abuse” by an employee of a fa cility as defined by section 626.5572 is

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misconduct.3 “Abuse” is defined as “[c]onduct whic h is not an accident or therapeutic
conduct as defined in section [626.5572], which produces or could reasonably be expected
to produce physical pain or injury or emotio nal distress including, but not limited to . . .
hitting, slapping, kicking, pinching, biting, or corporal punishment of a vulnerable adult.”
Minn. Stat. § 626.5572, subd. 2(b)(1) (2020).
Substantial record evidence exists to show that Hanson intentionally used physical
force to restrain the client, who was a patient or resident of MAC, which could be expected
to produce physical pain or emotional distress. Following the hold, the client cried in pain
and exhibited several physical injuries. Th e conduct was also not accidental, as Hanson
suggests. An “accident” is defined as:
a sudden, unforeseen, and unexpected occurrence or event
which: (1) is not likely to occur and which could not have been
prevented by exercise of due care; and (2) if occurring while a
vulnerable adult is receiving se rvices from a facility, happens
when the facility and the em ployee or person providing
services in the facility are in compliance with the laws and
rules relevant to the occurrence or event.

Minn. Stat. § 626.5572, subd. 3 (2020). The in juries could have been prevented through
exercise of due care—i.e. calling for help—a nd the record shows that Hanson was not
acting in compliance with MAC’s rules in performing the hold.
In summary, the record supports a conclu sion that Hanson was also discharged for
aggravated employment misconduct.

3 Hanson is an employee of a “facility” as defined by Minn. Stat . § 626.5572, subd. 6
(2020).

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II. The ULJ did not err in denyin g Hanson’s subpoena requests.
Hanson also argues that the ULJ should have granted his s ubpoena requests and
therefore failed to develop the record. Th e ULJ “may issue subpoenas to compel the
attendance of witnesses, the production of documents or other exhibits, upon a showing of
necessity by the requesting party.” Minn. R. 3310.2914, subd. 1 (2019). The ULJ may
deny subpoena requests if the information sought “would be irrelevant, immaterial, or
unduly cumulative or repetitious.” Id. We review subpoena decisions for an abuse of
discretion. Icenhower v. Total Automotive, Inc. , 845 N.W.2d 849, 853-54 (Minn. App.
2014), review denied (Minn. Jul. 15, 2014).
Hanson requested subpoe nas for information from hi s MAC employment file and
his MAC email account. At the beginning of the hearing the ULJ addressed and denied
these requests on the ground that the information was unlikely to be relevant but left open
the possibility of granting the subpoena later based on the testimony at the hearing.
Hanson also asked to subpoena testimony from the behavior therapist, the program
coordinator, and a teacher who offered to te stify that Hanson had performed the hold on
the client in the past and that he used “the approved hold” in this situation. The ULJ denied
the requests but also stated she would consider the requests again later in the hearing.
Hanson argues this was an abuse of th e ULJ’s discretion because the information
and testimony would have shown he was authorized to perform the holds, followed MAC
policies “to the best of [his] ability,” and wa s a person of good char acter. The behavior
therapist and the program coordinator each provided witness statements. The program
coordinator indicated in her statement that she believed Hanson was unauthorized to

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perform the hold, and information from the ot her witnesses is information that Hanson
himself could have provided through his own testimony. The ULJ is permitted to deny this
“irrelevant, immaterial, or unduly cumula tive or repetitious” evidence. Minn. R.
3310.2914, subd. 1.
Second, the ULJ gave Hanson an opportunity to testify about his own employment
record and, based on his testimony, it was reasonable for the ULJ to assume that any further
employment records would not have established that he was authorized to perform holds.
Hanson also argues the ULJ failed to su fficiently develop the record by “not
clarifying [his] testimony so that other details of the case could come to light.” We assume
Hanson is referring to the ULJ’s obligation to “ensure that all relevant facts are clearly and
fully developed.” Minn. R. 3310.2921 (2019); Icenhower, 845 N.W.2d at 853. The
testimony shows the ULJ asked several clea r questions to Hanson about his conduct,
including a direct question of whether he was certified to perform any holds. The ULJ also
allowed Hanson to cross-examine the other party’s witness and offer and object to exhibits.
The ULJ allowed both parties to submit a closing statement and make subpoena requests
on the record. The ULJ does have a duty to de velop the record, but there is nothing to
indicate that the ULJ did not ask the necessa ry questions or allow the parties ample
opportunity to develop the record in this case.
Affirmed.