Kassa B. Dadhi, Respondent, vs. American Security L.L.C., Relator, Commissioner of Employment and Economic Development, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-208

Kassa B. Dadhi,

Respondent,

vs.

American Security L.L.C.,

Relator,

Commissioner of Employment and Economic Development,

Respondent.

Filed November 16, 2004

Reversed and remanded

Lansing, Judge

Department of Employment and Economic Development

File No. 12769 03

Nuro B. Dedefo, 3989 Central Avenue Northeast, Suite 111, Columbia Heights Business Center, Columbia Heights, MN 55421 (for respondent Kassa B. Dadhi)

Robert C. Castle, Rebecca Bernhard, Oppenheimer Wolff & Donnelly LLP, 3300 Plaza VII Building, 45 South Seventh Street, Minneapolis, MN 55402 (for relator)

Lee B. Nelson, Linda A. Holmes, Minnesota Department of Employment and Economic Development, 390 North Robert Street, St. Paul, MN 55101 (for respondent Commissioner of Employment and Economic Development)

            Considered and decided by Lansing, Presiding Judge; Toussaint, Chief Judge; and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            On a certiorari appeal from a benefits determination by the commissioner's representative, the commissioner requested remand to admit a videotape of the incident alleged to constitute disqualifying misconduct and to allow evidence of pretextual workplace discrimination.  Because the videotape and the pretext evidence are both material to a full and fair determination, we reverse and remand.

F A C T S

Kassa Dadhi was employed by American Security L.L.C. from June 1997 until May 2003 when he was discharged for a workplace incident involving another employee.  American provides security and armored car transportation for valuable items, corporate records, and tonnage loads of coins or bulk currency.  Because of the nature of its enterprise, American maintains a zero-tolerance policy for workplace violence.  Dadhi worked in American's distribution area, preparing coins and other valuable items for shipping.

Dadhi was working in the distribution area on May 9, 2003, when another employee attempted to pull his coin cart through a doorway near where Dadhi was standing.  To get Dadhi's attention, the employee touched Dadhi on the leg or buttocks.  Dadhi believed that he had been sexually assaulted.  He turned and grabbed the employee by the neck with one hand and raised his other hand in a fist.  When Dadhi saw who had touched him, he dropped his hands and told the employee not to touch him again.

The other employee immediately reported the incident to a supervisor, but the supervisor did not report it to human resources personnel until May 20.  American suspended Dadhi on May 20 and discharged him three days later, after the human resources generalist viewed a security videotape of the incident.  Preceding the discharge, on May 19, Dadhi had complained to human resources personnel about perceived workplace discrimination. 

After a hearing, an unemployment law judge (ULJ) reversed the initial denial of Dadhi's benefits, concluding that he was not discharged for employment misconduct.  On appeal to the commissioner's representative, American argued that the ULJ had erroneously failed to admit into evidence the videotape of the incident.  The commissioner's representative affirmed the ULJ's determination and did not address the claim of evidentiary error or American's request for remand. 

In this certiorari appeal, the commissioner acknowledges error in failing to admit the videotape of the incident and in limiting consideration of the evidence on the reasons for discharge.  American seeks reversal or, alternatively, remand to admit the videotape.  Dadhi urges affirmance but also maintains that the commissioner's representative should have considered evidence that the discharge was a pretext for employment discrimination.

D E C I S I O N

A person who is discharged for employment misconduct is not eligible for unemployment benefits.  Minn. Stat. § 268.095, subd. 4(1) (2002).  In reviewing the grant or denial of an application for unemployment benefits, we apply the statute in effect at the time of the employee's discharge.  Brown v. Nat'l Am. Univ., 686 N.W.2d 329, 332 (Minn. App. 2004).  The statute in effect at the time of Dadhi's discharge defines employment misconduct as "any intentional conduct . . . that disregards the standards of behavior that an employer has the right to expect of the employee" or "negligent or indifferent conduct . . . that demonstrates a substantial lack of concern for the employment."  Minn. Stat. § 268.095, subd. 6(a)(1), (2) (2002); see also Houston v. Int'l Data Transfer Corp., 645 N.W.2d 144, 149-50 (Minn. 2002) (interpreting statutory definitions).

            The primary dispute is whether Dadhi's acts were intentional and in disregard of his employer's standards or were reflexive as a result of being startled and thus devoid of any intent to violate his employer's standards.  See Houston, 645 N.W.2d at 149-50 (applying a two-prong test to establish intent to engage in the conduct and intent to disregard the employer's standards).  The secondary dispute is whether this conduct was the real or pretextual reason for Dadhi's discharge.  The record indisputably shows that American brought the videotape of the actual incident to the evidentiary hearing and offered it to the ULJ.  The commissioner now acknowledges that the ULJ's failure to receive this evidence was error and further acknowledges that it was error to limit Dadhi's presentation of evidence to show that his discharge was in retaliation for a complaint of workplace discrimination rather than the May 9 incident.

            We conclude that remand is necessary.  Under Minn. R. 3310.2921 (2003), the ULJ must "ensure that relevant facts are clearly and fully developed."  To that end, "[a]ll competent, relevant, and material evidence" available at the hearing must be made part of the record.  Minn. R. 3310.2922.  The videotape of the May 9 incident is the best evidence, and should be used to prove its content.  See id. (stating that rules of evidence may be used as guide in determining quality and priority of evidence offered); Minn. R. Evid. 1002 (requiring original writing, recording, or photograph to prove content of same).  As the commissioner now acknowledges, the commissioner's representative erred by failing to remand the case for the ULJ to consider the videotape as evidence. 

            The department also acknowledges error in precluding Dadhi from presenting evidence on his claim that the incident was not the real reason for the discharge.  Under Minn. Stat. § 268.095, subd. 4(1), a person must be "discharged because of employment misconduct" to be disqualified from receiving unemployment benefits.  (Emphasis added.)  When the parties dispute the reason for the discharge, "the hearing process must allow evidence on the competing reasons and provide factual findings on the cause of discharge."  Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997) (holding that employee should have been allowed to present evidence disputing reason for discharge). 

            Consistent with the commissioner's and American's request, and consistent with Dadhi's position on pretext, we remand this case to the commissioner's representative to remand in turn to the ULJ for admission and consideration of the videotape and any additional evidence of pretextual discharge.  In light of the remand, we do not address American's remaining arguments on the determination of employment misconduct.

            Reversed and remanded.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.