This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ' 480A.08, subd. 3 (1994).

STATE OF MINNESOTA
IN COURT OF APPEALS
CX-95-2021

Paul Christy,
Appellant,

vs.

Hennepin County Personnel Board, et al.,
Respondent.

Filed July 30, 1996
Affirmed
Crippen, Judge

Hennepin County District Court
File No. EM 9400849

Randall D.B. Tigue, 2620 Nicollet Avenue, Minneapolis, MN 55408 (for Appellant)

Michael O. Freeman, Hennepin County Attorney, Sara E. Wahl, Senior Assistant County Attorney, A-2000 Government Center, Minneapolis, MN 55487

Considered and decided by Crippen, Presiding Judge, Amundson, Judge, and Willis, Judge.

U N P U B L I S H E D O P I N I O N

CRIPPEN, Judge

Following a lengthy hearing, an administrative law judge recommended that the Hennepin County Personnel Board affirm the Hennepin County Medical Center's decision to discharge appellant Paul Christy from employment. The board adopted the ALJ's decision. Christy appealed the board's decision to the trial court and now appeals the trial court's judgment affirming the board. Appellant challenges the adequacy of the evidence to support the trial court's decision, but we affirm.

FACTS

The Hennepin County Medical Center hired appellant in 1989 as a housekeeping supervisor. Appellant worked under Susan Buresh, director of housekeeping. Buresh terminated appellant's employment in January 1993, alleging that he had discriminated against or intimidated subordinate employees; that he had engaged in insubordinate behavior or a willful failure to meet job performance requirements; that his job performance was unsatisfactory; that he had exhibited behavior that reflected negatively on the county; and that he had expressed a negative attitude toward his job, department, duties, other departments, and/or the mission of the hospital and his assignment.

DECISION

1. Appellant has appended to his brief several documents that were not in the record provided to this court. An appellate court may not base its decision on evidence that is outside the record on appeal. Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988).

2. Appellant appealed the board's decision to the trial court pursuant to Minn. Stat. ' 383B.38, subd. 4 (1992), which required the court to determine whether the record contained "evidence upon which the board could have reached the decision" and whether the board abused its discretion. [1]

Appellant claims that the trial court erred by deferring to the ALJ's factual findings. Appellant cites In re the Disciplinary Action Against the Dentist License of Wang, 441 N.W.2d 488 (Minn. 1989), for the proposition that a higher level of judicial scrutiny is required when reviewing employee disciplinary matters. We need not decide whether this higher level of scrutiny is necessary because the trial court actually applied a higher standard, determining that "substantial" evidence supported the decision to discharge appellant.

3. Appellant argues that the board's decision is not supported by substantial evidence in the record. "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'; and

(5) evidence considered in its entirety.

Reserve Mining Co. v. Herbst, 256 N.W.2d 808, 825 (Minn. 1977).

The Hennepin County Medical Center could not discharge appellant "except for just cause." Minn. Stat. ' 383B.38, subd. 1. "Just cause" exists when the cause for the discharge is one that affects the employee's job performance or relates to his fitness or qualifications to perform his duties. See Deli v. University of Minnesota, 511 N.W.2d 46, 52 (Minn. App. 1994), review denied (Minn. Mar. 23, 1994).

The record contains substantial evidence to support the board's determination that the center had just cause to discharge appellant. There was evidence that appellant made derogatory remarks about employees behind their backs. These remarks related to participants in a special vocational project for emotionally handicapped employees, whom appellant insulted regarding their learning abilities and their race. There was evidence that he made threatening remarks regarding one participant and that he made hostile remarks generally about women and blacks.

On one occasion, appellant became verbally agitated and yelled and screamed in the presence of a supervisor and "stomped out of the building" when he learned that she had interviewed and hired an employee for his shift without his participation. On another occasion, appellant became angry at a supervisor who had written appellant a note indicating that an area under his supervision needed cleaning. According to the ALJ's findings, appellant addressed the supervisor with hostile, profane words. Appellant then threw the note in a wastebasket and began asking the supervisor: "What is your problem lady" several times and then parroted the supervisor's responses.

There is evidence that on one occasion, appellant was involved in a telephone exchange with a staff physician who asked that his on-call room be cleaned during appellant's shift. Appellant responded that it was a day shift responsibility and that he was short-handed and unable to send someone right away. The doctor became upset and asked appellant for the name of his supervisor. Appellant responded that the doctor could call the County Commissioners and then hung up the phone. A similar incident occurred when a charge nurse called appellant to ask that a call room be cleaned.

There was evidence that appellant treated a fellow supervisor poorly after he learned that she was earning what he believed to be an unfair salary. Appellant exhibited an uncooperative and divisive attitude towards the supervisor. He referred to her as "stupid" and refused to cooperate regarding a shared beeper. On one occasion, a supervisor prepared a computer printout of a report and distributed it to the supervisors for their input. Appellant threw his copy into his wastebasket twice.

Buresh testified that when she met with appellant to give him a written reprimand concerning his job performance, behavior, and attitude, appellant became very irate and told Buresh, using profanity, that he couldn't stand her, that she was "stupid and couldn't make a sound decision," and that another supervisor "was the dumbest, stupidest person that he had ever met." During the meeting, appellant referred to an employee by using a racial insult and stated, again with profanity, that a personnel representative was not competent. Appellant stated "I hate this damn place" and said that his attitude was not going to change. At that point, Buresh stated that he was fired.

Appellant argues that he did not receive notice that his actions could result in discharge. But there was evidence that appellant was counseled on several occasions. Furthermore, a supervisor may be held to know that the use of racist and derogatory language could lead to discharge.

Appellant also claims that no employee under his supervision could corroborate the supervisors' claims that he made discriminatory or intimidating remarks about the employees. But the supervisors specifically testified that appellant made his remarks behind the employees' backs.

4. In conjunction with this appeal of the board's decision, appellant sued the center for defamation based on his letter of termination and a memorandum from another supervisor to Buresh. The trial court dismissed appellant's defamation claims, concluding that they were barred by the doctrine of collateral estoppel. See Graham v. Special Sch. Dist. No. 1, 472 N.W.2d 114 (Minn. 1991) (addressing collateral estoppel doctrine in context of decisions by administrative agencies). Appellant apparently concedes that if we affirm the trial court's decision, his defamation claims were properly dismissed.

Affirmed.


Footnotes

[1]Christy's appeal was filed in the trial court pursuant to Minn. Stat. ' 383B.38, subd. 4, which was subsequently repealed. 1994 Minn. Laws ch. 596 ' 13.