This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014). STATE OF MINNESOTA IN COURT OF APPEALS A16-0050 Debra Barrett, Relator,

vs. Jourdain/Perpich Extend ed Care Facility, Inc., Respondent, Department of Employment a nd Economic Development, Respondent. Filed August 22, 2016 Affirmed in part and remanded Reyes, Judge Department of Employment and Economic Development File No. 33860168-3 Debra Barrett, Redby, Minnesota (pro se relator) Jourdain/Perpich Extended Care Facility, Redlake, Minn esota (respondent employer) Lee B. Nelson, Department of Employment and Economic Development, St. Paul, Minnesota (for respondent Department) Considered and decided by Schellhas, Presiding Judg e; Reyes, Judge; and Muehlberg, Judge. *

* Retired judge of the Minnesota Court of Ap peals, serving by appointment pursuant to Minn. Const. art. VI, § 10.2 U N P U B L I S H E D O P I N I O N REYES , Judge In this unemployment-compensation appeal , relator challenges a determination by an unemployment-law judge (ULJ) on reconsid eration that relator is ineligible for unemployment benefits because she was discharged from her employment for employment misconduct. We affirm in part and remand. FACTS In July 1993, rela tor Debra Barrett began her em ployment with respondent employer Jourdain/Perpich Exte nded Care Facility, Inc. Relator worked full time in housekeeping. In July 2015, relator assaulte d N.A., the director of nursing. That same day, respondent employer terminated relator for the assault. Relator applied for and was denied unemployment benefits by respondent Minnesota Department of Employment and Ec onomic Development (DEED) on the basis that she was discharged fo r employment misconduct. 1 Relator appealed DEED’s determination of ineligibility, a nd a ULJ held an ev identiary hearing. At the hearing, relator testified on her own be half. Respondent-employer’s project manager, M.Z., and current administrator, Y.W., testified on its behalf. Following the hearing, th e ULJ determined that re lator is ineligible for employment benefits because she was termin ated for employment misconduct. Relator

1 Relator’s determination of ineligibility from DEED explicitly stated that she was ineligible for unemployment benefits a nd that her “conduct was not aggravated employment misconduct because the conduct did not amount to a gross misdemeanor or a felony. However, the conduct was employment misconduct.”3 filed a request for reconsidera tion, and the ULJ affirmed its initial determination. This certiorari appeal follows. D E C I S I O N When reviewing the ULJ’s decision, we may affirm, reverse, modify, or remand the decision if it is in viol ation of constitutional provisi ons, in excess of statutory authority or jurisdiction of the department, made upon unlawful proced ure, affected by an error of law, unsupported by substantial evid ence, or arbitrary and capricious. Minn. Stat. § 268.105, subd. 7(d) (Supp. 2015). The purpose of the Minnesota Unemployment Insurance Law is to assist those who are “u nemployed through no fa ult of their own.” Minn. Stat. § 268.03, subd. 1 (2014). It “is re medial in nature and must be applied in favor of awarding benefits,” and any statutory provision prec luding receipt of benefits “must be narrowly construed.” Minn. Stat . § 268.031, subd. 2 (2014). There is no burden of proof in unemployment-insurance proceedings, nor is there equitable or common-law denial or allowance of benefits. Minn. Stat. § 268.069, subds. 2, 3 (2014). Appellate courts “review the ULJ’s factual findings in the light most favorable to the decision.” Stagg v. Vintage Place, Inc. , 796 N.W.2d 312, 315 (Minn. 2011) (quotation omitted). We will affi rm so long as substantial evidence supports the ULJ’s findings. Ywswf v. Teleplan Wireless Servs., Inc. , 726 N.W.2d 525, 529 (Minn. App. 2007). We have previously concluded that substantial evidence supports the findings where witness “testimony th at was credited was corroborated by other testimony and evidence, while another’s testimony that wa s not credible was deemed not believable4 based on the facts asserted.” Id . at 532 (citing Saif Food Market v. Comm’r, Dep’t of Health , 664 N.W.2d 428, 430-31 (Minn. App. 2003)).
I. Relator is not entitled to unemployment benefits. We construe relator’s argument to be that she is entitled to unemployment benefits because she worked for re spondent employer for 23 years. We disagree. An employee who is discharged from employment for employment misconduct is ineligible to receive unemployment benefits . Minn. Stat. § 268.0 95, subd. 4(1) (2014). Employment misconduct is “any intentional, ne gligent, or indifferent conduct, on the job or off the job that displays clearly: (1) a seri ous violation of the standards of behavior the employer has the right to reasonably expect of the employee.” Id ., subd. 6(a) (2014). Under Minnesota law, violent behavior in the workplace constitutes misconduct “because it creates danger in the workpla ce and it interferes with the employer’s business.” Shell v. Host Int’l , 513 N.W.2d 15, 17 (Minn. App. 1994). And “employers may reasonably expect employees to refrain from engaging in even single acts of combative physical contact.” Potter v. N. Empire Pizza, Inc. , 805 N.W.2d 872, 878 (Minn. App. 2011), review denied (Minn. Nov. 15, 2011). “Whether an employee engaged in conduct that disqualifies the employee from unemployment benefits is a mixed question of fact and law.” Stagg , 796 N.W.2d at 315 ( quotation omitted). While the employee’s involvement in the sp ecific act is an issue of fact, Skarhus v. Davanni’s
Inc. , 721 N.W.2d 340, 344 (Minn. App. 2006), whether the facts establish disqualifying employment misconduct is a question of law that we review de novo. Stagg , 796 N.W.2d at 315.5 As an initial matter, relator fails to cite statutory authority supporting her argument premised on equitable principles. Nonethel ess, there is no equitable allowance of benefits for unemployment benefits. Minn. Stat . § 268.069, subd. 3. As such, relator’s argument that she is entitled to benefits based on her years of service fails. Moreover, the record support s the ULJ’s factual findings and legal conclusion. Relator was initially invo lved in a verbal disagreement w ith another employee, K.J. The argument between relator and K.J. escalated. Subsequently, N.B., the administrator at that time, informed relator th at she needed to go home. Wh ile relator was preparing to go home, N.A. called relator a derogatory racial slur. 2 In retaliation, re lator punched N.A. in the head, causing N.A. to hit a copy machine a nd a chair. N.A. went to the hospital and was diagnosed with a concussion. While relator claims that she does not remember punching N.A., she does acknowledge that she “lost it” because she felt picked on at work and because she had been called a racial slur. Relator’s conduc t was contrary to respondent employer’s personnel policy, which sets forth expect ations for professional conduct, and was a “serious violation of the sta ndards of behavior the employe r has the right to reasonably expect of the employee.” Minn. Stat. § 268.095, subd. 6(a)(1); see also Potter , 805 N.W.2d at 878. Because the evidence supp orts the ULJ’s findings, we conclude that

2 Our conclusion that relator engaged in empl oyment misconduct shou ld not be construed to condone in any way N.A.’s use of a derogatory racial slur against relator. The use of it by a director of nursing is particularly improper.6 relator was discharged for the employment misconduct of violent behavior in the workplace and therefore is ineligible for unemployment benefits. Id ., subd. 4(1).
II. The ULJ erred by failing to address wh ether relator’s conduct amounts to aggravated employment misconduct. Under Minnesota law, aggravated employm ent misconduct is “the commission of any act, on the job or off the job, that woul d amount to a gross misdemeanor or felony if the act substantially interfered with the employ ment or had a significant adverse effect on the employment.” Minn. Stat . § 268.095, subd. 6a(a)(1) (2 014). An employee who is discharged for aggravated employment miscond uct is ineligible to receive unemployment benefits and is subject to cancellation of th e wage credits that she would have earned from that employment. Id. , subds. 4(2), 10(c) (2014). The ULJ found that relator assaulted N.A. and gave her a concussion. But the ULJ did not make a determination as to whet her relator’s conduct constituted aggravated employment misconduct, which DEED argues wa s error. We agree. DEED initially asserts that “the level of crime charged, or wh ether the individual is charged at all” is not dispositive of a ULJ’s conclusi on of aggravated employment misconduct. DEED cites Manos v. First Bank Minnehaha to support this proposition. 357 N.W.2d 372 (Minn. App. 1984) (concluding that Manos’s failure to report overpayment in her paychecks “could fall within the theft statute and thus can be considered gross misconduct connected with her employmen t”). DEED further argues that, the ULJ must first determine, based on a prepon derance of the evidence, whet her the act constitutes a gross misdemeanor or a felony under Minnesota law. Then the ULJ must determine whether7 the “act substantially interfered with the empl oyment or had a significant adverse effect on the employment.” Minn. Stat. § 268.095, subd. 6a(a)(1). The record reflects th at the ULJ considered the seve rity of relator’s crime, and stated that the severity “would make a differe nce.” And, while the parties disagreed as to the severity of the charged crime, the reco rd reflects that rela tor was charged with misdemeanor second-degree assault under Red Lake Tribal Code. No evidence was presented as what the presumptive charge woul d have been under Minnesota state law. But the ULJ does not need to determine the severity of relator’s actual assault charge. Manos provides that the ULJ may determine whether relator’s conduct could fall “within the [assault] statute and thus ca n be considered gross misconduct.” Manos , 357 N.W.2d at 376. Under Minnesota law, th ird-degree-felony assault is one in which “substantial bodily harm” is in flicted on another. Minn. Stat. § 609.223, subd. 1 (2014). Substantial bodily harm is de fined as “bodily injury . . . which causes a temporary but substantial loss or impairment of the functio n of any bodily member or organ.” Minn. Stat. § 609.02, subd. 7a. (2014). Here, the ULJ found that relator punched N.A. in the head, causing a concussion. 3 Other than finding that N.A. suffered a conc ussion, the ULJ failed to make any additional findings as to whether her condu ct “would amount to a gross misdemeanor or felony if the act substantially interfered with the employ ment or had a significant adverse effect on

3 According to the record, a concussion is define d as “a type of injury to the head that causes a minor injury to the brain. Concu ssions can cause sympto ms ranging from brief confusion to a true loss of cons ciousness (being knocked out).”8 the employment.” Minn. Stat. § 268.095, su bd. 6a(a)(1). Therefore, the limited record does not contain sufficient facts for us to determine whether or not relator committed aggravated employment misconduct. A nd we are not a fact-finding court. See Stiff v. Associated Sewing Supply Co. , 436 N.W.2d 777, 779 (Mi nn. 1989) (“[A]n appellate court’s limited scope of review circumscribe s additional fact finding by it.”). Because the ULJ failed to make specific factual fi ndings regarding N.A.’s condition and because the ULJ failed to reach a legal conclusion re garding aggravated employment misconduct, we remand on this issue to the ULJ for further proceedings consistent with this opinion. On remand, the ULJ may open the record and hold an eviden tiary hearing to develop the record, at its discretion. Affirmed in part and remanded.