Kenneth Zepeda, Appellant,

This opinion is nonprecedential except as provided by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
A23-1210

Kenneth Zepeda,
Appellant,

vs.

City of Saint Paul,
Respondent.

Filed March 11, 2024
Affirmed
Larkin, Judge

Ramsey County District Court
File No. 62-CV-22-6557

Christopher K. Wachtler, Wachtler Law Office, Stillwater, Minnesota (for appellant)

Lyndsey M. Olson, St. Paul City Attorney, Anthony G. Edwards, Assistant City Attorney,
St. Paul, Minnesota (for respondent)

Considered and decided by Ross, Presiding Judge; Larkin, Judge; and Bjorkman,
Judge.
NONPRECEDENTIAL OPINION
LARKIN, Judge
Appellant, a military veteran, challenges an arbitrator’s decision under Minnesota’s
Veteran’s Preference Act upholding respondent-city’s termination of his employment. We
affirm.

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FACTS
Appellant Kenneth Zepeda is an honorably discharged veteran who worked as a St.
Paul Fire Engine Operator for respondent City of St. Paul (the city). On January 17, 2021,
at approximately 1:30 a.m., Zepeda responded to a medical call in downtown St. Paul ,
along with a captain of the fire department, two emergency medical technicians, and two
paramedics. The patient was outdoors near the downtown transit station , disoriented,
wearing hospital scrubs, and without shoes. The patient was also wearing a blood y face
mask.
Initially, t he patient was cooperative, but the circumstances changed when the
responders attempted to direct the patient to the inside of an ambulance for evaluation and
care. The patient did not cooperate with the crew’s instructions . Instead, he became
combative and attempted to punch one of the responders with his fist. Once the responders
were able to get the patient inside of the ambulance, he swore at the m and physically
resisted their attempts to restrain him by kicking and spitting at them. The six responders
were able to subdue the patient after Zepeda manipulated a pressure point on the patient.
Once the patient was restrained and placed in a spit hood, he was transported to a hospital.
Portions of the incident were captured on the body-worn camera of a transit police
officer who was present at the scene , including Zepeda’s manipulation of the patient’s
pressure point to cause his submission in the ambulance. Zepeda’s employer reviewed the
body-worn camera video footage, placed the responders on paid administrative leave , and
arranged for another county to investigate the incident. The results of the investigation
were presented to the Minneapolis City Attorney’s o ffice for consideration of criminal
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charges. That office considered the possibility of a fifth -degree assault charge but
ultimately did not file any charges.
On January 24, 2022, the city gave notice of its intent to terminate Zepeda ’s
employment based on his use of “verbal aggression and physical force to restrain and apply
pressure to the neck of the patient, prior to and after the patient was fully restrained to an
ambulance stretcher.” A three-day evidentiary hearing was held bef ore an arbitrator
regarding the city’s attempt to terminate Zepeda’s employment. The parties submitted
evidence, including the body -worn camera video footage, and several witnesses testified ,
including Zepeda.
Zepeda testified that, in his intersections with the patient, he relied on a “use of force
continuum” that he learned when he was a military police officer , which progressed from
physical “presence,” to “verbal commands, ” to “louder verbal commands. ” Zepeda
testified that despite his use of those ap proaches, the patient was fighting with the
responders the entire time and that he “use[d] the minimum amount of force necessary to
gain compliance . . . [,] which was a pressure point technique .” Zepeda also testified that
he could have “gone up with strikes,” but the patient was never struck and the patient was
never rendered unconscious. Zepeda further testified that the patient was not “sprayed with
any OC spray,” a “K9” was not available to assist, and “at no point was deadly force used.”
In sum, Zepeda testified that there were “four more level s of force that could have been
used.”
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Zepeda admitted that he had never been trained on the use of pressure points by the
city and that his pressure-point training occurred when he was a military police officer. He
also testified that the objective of pressure points is to “gain compliance.”
The arbitrator found that the city had grounds to terminate Zepeda ’s employment.
Zepeda appealed to the district court, which affirmed the arbitrator’s decision.
Zepeda appeals.
DECISION
Under the Minnesota Veterans Preference Act (VPA) , an honorably discharged
veteran may not be terminated from his or her position of public -sector employment
“except for incompetency or misconduct shown after a hearing , upon due notice, upon
stated charges, in writing.” Minn. Stat. § 197.46(a) (2022). The Minnesota Supreme Court
has interpreted incompetency or misconduct in this context as the equivalent of a “just
cause” standard for discharge. AFSCME Council 96 v. Arrowhead Reg’l Corr. Bd. ,
356 N.W.2d 295, 297-98 (Minn. 1984). The supreme court explained:
The cause [for discharge] must be one [that] specifically relates
to and affects the administration of the office, and must be
restricted to something of a substantial nature directly affecting
the rights and interests of the public. The cause must be one
touching the qualifications of the officer or his performance of
its duties, showing that he is not a fit or proper person to hold
office.

Ekstedt v. Village of New Hope, 193 N.W.2d 821, 828 (Minn. 1972) (quotation omitted).
The necessary hearing under the VPA may be before a civil service board or
commission or merit system authority, if one exists in the relevant governmental
5
subdivision, or before an arbitrator. Minn. Stat. § 197.46(c) (2022). 1 “In conducting a
veterans preference hearing, the task of the [decision-maker] is twofold: first, to determine
whether the employer has acted reasonably; second, to determine whether extenuating
circumstances exist justifying a modification in the disciplinary sanction.” In re Schrader,
394 N.W.2d 796, 801-02 (Minn. 1986). The burden of proof is on the employer to show
that “the employer acted reasonably.” Id. at 802. “In determining whether the employer
has acted reasonably, the [decision-maker] is to be guided by such considerations as the
veteran’s conduct, the effect upon the workplace a nd work environment, and the effect
upon the veteran’s competency and fitness for the job.” Id.
In an appeal from the decision of a district court reviewing a decision in a case heard
under the VPA, this court independently reviews the administrative decision and gives no
deference to the district court. Myers v. City of Oakdale , 461 N.W.2d 242, 244 (Minn.
App. 1990). We will sustain the decision-maker’s findings of fact if they are supported by
substantial evidence. Id. at 244-45. We review the decision-maker’s ultimate decision for
an abuse of discretion. Id. at 244.
“An appellate court’s scope of review of administrative decisions is narrow, and if
a [] decision [under the VPA] is supported by substantial evidence on the record and not
affected by errors of law, it must be sustained.” Caldwell v. City of Minneapolis ,
486 N.W.2d 151, 155 (Minn. App. 1992), rev. denied (Minn. Aug. 4, 1992). “A court may

1 The ability to hold a VPA hearing before an arbitrator replaced the option to hold it before
a three-person panel. See 2016 Minn. Laws ch. 189, art. 13, § 55 (amending Minn. Stat.
§ 197.46 (2014)). Neither party asserts that the standards and procedures governing a
hearing under the VPA are different if the hearing is before an arbitrator.
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not substitute its own findings for those of the [VPA] [decision-maker].” Pawelk v.
Camden Township, 415 N.W.2d 47, 50 (Minn. App. 1987).
I.
Zepeda contends that the arbitrator abused his discretion by failing to apply “the
correct standard of proof.” Zepeda argues that because the city treated the conduct
underlying his discharge as potentially criminal, the arbitrator should have required the city
to prove that termination was reasonable by clear and convincing evidence or by proof
beyond a reasonable doubt. Zepeda argues that although most arbitrators apply a
preponderance-of-the-evidence standard to “ordinary discipline and discharge cases, in
cases involving criminal conduct or other stigmatizing behavior, many arbitrators apply a
higher burden of proof.” Zepeda sta tes that the arbitrator here “ostensibly applied an
incorrect preponderance -of-the-evidence standard of proof in this case. ” Zepeda insists
that because the case involved “potentially unlawful conduct,” it “favors at least a
‘clear-and-convincing evidence’ standard’” or a “beyond-a-reasonable-doubt standard.”
The VPA does not assign a specific burden of proof to the employer at a discharge
hearing. If “the legislature has not specified a standard of proof for a statutorily created
cause of action, courts presume that the legislature intended the
preponderance-of-the-evidence standard to apply.” T.E.S. Const., Inc. v. Chicilo,
784 N.W.2d 392, 397 (Minn. App. 2010), rev. denied (Minn. Sept. 21, 2010). Zepeda does
not cite, and we are not aware of, a ny precedential authority requiring use of a higher
burden of proof at a VPA hearing . Instead, Zepeda’s arguments are policy -based. He
argues that first responder s are neither trained nor armed in anticipation of situations like
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the one in this case and that they are “being forced [to] deal with chaos and violence far
beyond the scope of anticipated fire and medical service.”
Although Zepeda may raise a valid concern, “this court is limited in its function to
correcting errors,” and “it cannot create public policy.” LaChapelle v. Mitten, 607 N.W.2d
151, 159 (Minn. App. 2000), rev. denied (Minn. May 16, 2000). We therefore do not
consider whether a different burde n of proof would be appropriate in certain discharge
cases under the VPA based on public-policy grounds.
In sum, o ur function is “ limited to identifying errors and then correcting them .”
Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988). Because no authority required the
arbitrator to use either of the higher burdens of proof that Zepeda requests, the arbitrator
did not abuse his discretion by failing to do so.
II.
Zepeda contends that the “[a]rbitrator exceeded his authority by issuing a [d]ecision
[that] was factually inconsistent, and therefore contradictory or irrational.” He argues that
courts have recognized that if an arbitrator issues an award that is contradictory or
irrational, “the arbitrator’s authority has been exceeded [,] making vacatur appropriate. ”2
An abuse of disc retion occurs if a decision is inconsistent with logic and the facts in the
record. See State v. Thomas , 891 N.W.2d 612, 618 (Minn. 2017) (quotation omitted)
(stating standard in context of a district court decision).

2 As support, Zepeda cites multiple cases, but none is from Minnesota’s appellate courts.
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Zepeda identifies “three glaring fac tual inconsistencies” and claims that they
“mandate vacatur.” First, Zepeda points to two of the arbitrator’s f indings regarding the
video recording of the events in the ambulance. On one hand, the arbitrator found that the
patient “posed no serious safe ty risk to the crew during this critical 22 second portion of
the video or at any time after that” and that “it was clear that this patient was in no position
to inflict harm on the crew.” On the other hand, the arbitrator found that “[d]uring the most
critical 20 second s of this video the crew was furiously working to restrain a combative
patient who was screaming, spitting[,] and doing all [that] he could to counteract the crew’s
efforts.” We do not view the arbitrator’s findings as factually inconsiste nt. Despite the
patient’s physically combative behavior in the ambulance, the video supports the
arbitrator’s statement that the patient was, nonetheless, not in a position to inflict harm on
the responders at that point.
Second, Zepeda points to the arbitrator’s findings regarding whether the patient lost
consciousness because of Zepeda’s actions. On one hand, the arbitrator found that he was
“in no position to conclude one way or another” whether the patient los t consciousness.
On the other hand, the arbitrator found that the video showed that during Zepeda’s attempt
to subdue the patient in the ambulance, the patient’s “head goes limp[,] and he goes silent.”
The arbitrator also found that the testimony of one of the re sponders suggested that
“Zepeda was cutting off or at least squeezing one [of the patient’s] carotid arter[ies].”
The arbitrator was referring to the testimony of one of the paramedics who was in
the ambulance. That paramedic testified that it is “scienti fically impossible to choke
someone out by occluding one carotid artery. You have to occlude both carotid arteries for
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someone to lose consciousness from a choking.” The arbitrator noted that he was “in no
position to know if that is indeed correct,” but that the testimony suggested that Zepeda’s
actions interfered with one of the patient’s carotid arteries. As the arbitrator explained,
“[W]hy else would [the witness] make that comment ?” Contrary to Zepeda’s assertion,
the arbitrator’s finding that he could not determine whether the patient lost consciousness
is not inconsistent with the arbitrator’s statements regarding what he viewed on the video
or his interpretation of the witness’s testimony.
Third, Zepeda points to an alleged inconsistency regarding whether he can be
discharged based on conduct resulting from a lack of training. On one hand, the arbitrator
found that “[t]he record showed a glaring lack of training for these workers related to
dealing with patients with behavior issues” and “a lack of recent training prior to the time
of the incident on the topics such as use of force, restraint, and de -escalation.” Zepeda
therefore argues that “ [a] finding of just -cause is negated . . . by the lack of notice to
[Zepeda] that his actions might result in discipline, as evidenced by the acknowledged
absence of an applicable policy and by the documented training deficiencies.”
But the arbitrator logically explained why just cause exists in this case despite the
lack of training, r easoning that although “there may not be a specific policy to follow as
Zepeda suggests there should be, there is sufficient documentation to establish that
Zepeda’s conduct was not acceptable.” The arbitrator reasoned that “the rest of the crew,
having received the same level of training, knew not to interact with the patient as Zepeda
did,” that Zepeda’s behavior on the video “reflects someone who did not control their anger
rather than someone who did not know better,” and that “supporting documentation” is not
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necessary to establish that behaviors such as “yelling, taunting, belittling and physically
abusing a patient” are prohibited and could be considered misconduct.
In sum, we do not discern any material inconsistencies in the arbitrator’s findings
or any logical disconnect between those findings and the arbitrator’s ultimate decision.
III.
Zepeda contends that the arbitrator failed to acknowledge evidence of mitigating
circumstances and thereby abused his discretion . The decision -maker’s task at a VPA
hearing includes determining “ whether extenuating circumstances exist justifying a
modification in the disciplinary sanction .” Schrader, 394 N.W.2d at 801 -02. Zepeda
complains that the arbitrator ignored the following mitigating circumstances: (1) he was
forthright about his conduct and cooperated with the city’s investigation , (2) he was a
longtime employee of distinguished service and a 32-year veteran of the armed forces, and
(3) he was the victim of “disparate treatment” within the department. Zepeda also noted
that he was neither charged with nor convicted of a crime based on his conduct.
The arbitrator thoroughly explained why just cause for termination exist ed even
though Zepeda had not been charged with or convicted of a crime. The arbitrator
acknowledged Zepeda’s assertions that he was a veteran with “over 14 and a half years of
service in the St. Paul Fire department,” that he had “received a long list of commendations
for his work, ” and that he had “frequently participated in various charitable activities on
behalf of the department making him a very valuable asset to the department.” However,
the arbitrator also noted that Zepeda had an “aggravated history of misconduct.”
Specifically, Zepeda was previously discharged under circumstances that led the arbitrator
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in that case to find that his conduct “was reprehensible, immoral[,] and rose to the level of
incompetency and misconduct under the VPA.” 3 Nonetheless, Zepeda’s previous
discharge was mitigated to a demotion, based in part on his lack of prior disciplinary action.
The city argues that the fact that Zepeda engaged in misconduct after a previous demotion
supports a finding of just cause.
Although the arbitrator referenced the mitigating and aggravating circumstances
when summarizing each party’s position, the arbitrator did not expressly mention them in
his discussion and analysis. But given Zepeda’s prior disciplinary history, we cannot say
that the arbitrator’s failure to expressly discuss Zepeda’s work and disciplinary history was
an abuse of discretion. Instead, the record reflects an implicit determination that mitigating
circumstances did not warrant another modification in the disciplinary sanction imposed
by the city.
IV.
Zepeda generally suggests that the factual findings supporting the arbitrator’s
decision are not supported by substantial evidence. Substantial evidence is “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Minneapolis Van & Warehouse Co. v. St. Paul Terminal Warehouse Co., 180 N.W.2d 175,
178 (Minn. 1970 ) (quotation omitted). When reviewing a decision under the VPA,
“[c]onflicts in the testimony and the weight to be given facts and circumstances as well as

3 According to the city, Zepeda was initially terminated from employment by the St. Paul
Fire Department in 2018 “following an incident in which he had sexual relations on a fire
truck within his fire station.”
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the inferences reasonably to be drawn therefrom are matters to be resolved by the
[administrative decision-maker], not the courts.” State ex rel. Jenson v. Civ. Serv. Comm’n,
130 N.W.2d 143, 146 (Minn. 1964).
Although the evidence was conflicting, the arbitrator was entrusted to resolve those
conflicts and to weigh the evidence. See id . We discern no error in the arbitrator’s
resolution of the conflicting evidence. The arbitrator acknowledged that his decision was
inconsistent with the testimony of the responders who were present in the ambulance with
Zepeda and explained why he rejected that testimony:
During the most critical 20 seconds of this video [,] the
crew was furiously working to restrain a combative patient
who was screaming, spitting [,] and doing all he could to
counteract the crew’s efforts. Each crew member was focused
on their assignment in this team effort to control the combative
patient. It is not hard to understand under these circumstances
that the specific details of the actions of their coworker
[Zepeda], which had occurred weeks prior, might be hard to
accurately recal l. Conversely, I had the opportunity to
painstakingly review a video over and over until I had a full
grasp of what exactly happened. I was not ha mpered by the
speed at which things occurred as I could continually replay
the video. Also, I was not distr acted by having to focus on
anything other than the actions of [] Zepeda. Given all these
advantages[,] I believe my a ccounting of what happened is
more accurate than the facts recalled by the staff during their
testimony.

The arbitrator provided examples of testimony from the other responders that was
“blatantly refute d by the video.” Based on the video, t he arbitrator concluded that
“Zepeda’s actions were clearly wrong and needed to be addressed.” The arbitrator also
relied on several documents describing the policies that govern the provision of emergency
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medical services. Those policies include not positioning “a patient in such a way that could
impact the patient’s respiratory or circulatory status.”
This record provides substantial support for the arbitrator’s findings, which in turn
support the arbitrator’s determination that the city had just cause to terminate Zepeda’s
employment.
Affirmed.