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Sourivong v. North Metro Harness Initiative, LLC

Court of Appeals of Minnesota

August 12, 2013

Timothy N. Sourivong, Relator,
v.
North Metro Harness Initiative, LLC, Respondent, Department of Employment and Economic Development, Respondent.

UNPUBLISHED OPINION

Department of Employment and Economic Development File No. 30069551-3

Anne M. Loring, Minneapolis, Minnesota (for relator).

North Metro Harness Initiative, LLC, Columbus, Minnesota (for respondent).

Lee B. Nelson, Christine Hinrichs, Minnesota Department of Employment and Economic Development, St. Paul, Minnesota (for respondent department).

Considered and decided by Connolly, Presiding Judge; Cleary, Judge; and Huspeni, Judge.[*]

CONNOLLY, Judge.

In this certiorari appeal from an unemployment-law judge's (ULJ's) decision that relator is ineligible for unemployment benefits because he committed employment misconduct, relator argues that (1) his actions did not actually constitute employment misconduct and (2) the hearing was unfair because the ULJ failed in his duty to assist an unrepresented party and to clearly and fully develop the record. Because the ULJ did not err in determining that relator committed employment misconduct, and because the ULJ did not fail in his duty to assist an unrepresented party and to clearly and fully develop the record, we affirm.

FACTS

Relator Timothy Sourivong worked at Running Aces Harness Park, a division of respondent-employer North Metro Harness Initiative Inc. (North Metro), from June 2008 until his discharge on July 29, 2012. North Metro is a racino business; conducting live harness racing and operating a "Las Vegas style" card room featuring a variety of card games, including 4 Card Poker. Relator worked as a dual-rate pit-supervisor, sometimes acting as a dealer in card games. During his employment at North Metro, relator was issued a total of six Employee Corrective Action (ECA) documents from January 29, 2009 through July 9, 2012, not including his final termination notice. The "misconduct" box was only checked on two of these ECA documents: on January 29, 2009 and May 2, 2012. The "performance" box was checked on three of the ECA documents. The sixth document did not have a check next to "misconduct" or "performance, " but was the basis for a suspension relator received in November 2010.

On the night of July 25, 2012, relator was dealing cards at a 4 Card Poker table when he forgot to deal himself in as a dealer in the game, violating the rules of play. Upon realizing his mistake, relator called the floor supervisor over to his table. The floor supervisor provided relator with instructions on correcting the error, which relator proceeded to question in front of patrons. North Metro policies and standard casino practices require dealers to always follow the direction of a floor supervisor to avoid confrontation at a table in front of players. Relator eventually complied with the floor supervisor's instructions but only after continuing to question her in front of the card players, in violation of policy. Only later did the floor supervisor learn that her instructions had, in fact, been inaccurate according to guidelines established by the Minnesota Racing Commission (MRC). Due to relator's violation of North Metro's policy on July 25, as well as previous violations, relator was discharged on July 29, 2012. Relator subsequently applied for unemployment benefits.

Respondent-department, the Minnesota Department of Employment and Economic Development (DEED), issued a determination of ineligibility on August 17, 2012, finding that relator was discharged for misconduct and is ineligible to receive unemployment benefits. Relator appealed the determination, and a ULJ conducted a de novo hearing. The ULJ found that relator was discharged for misconduct, and is therefore ineligible for benefits. Relator requested reconsideration, and the ULJ affirmed his decision. Relator now challenges the determination of his ineligibility.

DECISION

1. ...


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