This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2012).
STATE OF MINNESOTA
IN COURT OF APPEALS
A13-2369
Cathy Justice,
Relator,
vs.
Glacial Ridge Hospital,
Respondent,
Department of Employment and
Economic Development,
Respondent.
Filed September 15, 2014
Affirmed
Hudson, Judge
Department of Employment and
Economic Development
File No. 31512577-3
John E. Mack, Mack & Daby, P.A., New London, Minnesota (for relator)
Glacial Ridge Hospital, Glenwood, Minnesota (respondent)
Lee B. Nelson, Munazza A. Humayun, Department of Employment and Economic
Development, St. Paul, Minnesota (for respondent department)
Considered and decided by Hudson, Presiding Judge; Stauber, Judge; and Kirk,
Judge.
UNPUBLISHED OPINION
HUDSON, Judge
Relator challenges the decision of an unemployment-law judge (ULJ) determining
that she is ineligible for unemployment benefits because she was discharged for
employment misconduct. Because substantial evidence supports the ULJ’s determination
that relator committed employment misconduct by displaying clearly a serious violation
of the standard of behavior her employer had the right to expect, we affirm.
FACTS
Relator Cathy Justice was employed as a certified nursing assistant by respondent
Glacial Ridge Hospital (Glacial Ridge) until she was discharged on August 7, 2013. The
Minnesota Department of Employment and Economic Development (DEED) initially
denied her unemployment benefits on the ground that she was discharged for
employment misconduct; relator sought a hearing before a ULJ.
At the hearing, relator’s supervisor testified that relator was discharged for
ongoing insubordination issues, failing to work in a respectful manner, not wanting to
complete required job duties, and continuing to leave the unit for long periods while on
the job. The supervisor testified that in relator’s 2008 evaluation, she discussed concerns
about failing to complete basic patient cares, needing reminders of normal job duties, and
experiencing conflicts with nursing staff. The supervisor acknowledged that relator
received mostly average performance reviews; had no performance reviews in 2010,
2011, or 2013; and did not receive written warnings under the hospital’s progressive
discipline policy. Relator received a 2012 evaluation that generally rated her as meeting
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expected standards, but noted that she “ha[d] a way of disappearing” when it was busy
and “need[ed] to make herself more available.” The supervisor testified that she met with
relator in April 2013 and discussed her poor job performance.
The supervisor testified that relator was discharged after several reports from other
nurses regarding her behavior from dates in January and August 2013. According to
those reports, relator: (1) told other nurses that she had “other things to do” and was “a
little busy” so that she could not assist with patient cares; (2) needed reminders to
perform her normal work duties of giving baths and stocking supply cupboards; (3) failed
to report that a patient stated that she was feeling ill, when the patient was later found
slumped over in a recliner; (4) visited with housekeeping staff while patient call lights
were going off and gave a patient a shower more than two hours later than promised; and
(5) took a break longer than allowed.
A lead nurse testified that relator had problems with work flow when doing basic
patient care, requiring “remedial steps.” She testified that, sometimes, relator would not
respond when a patient call light was on, instead talking on her cell phone or staying in
the dining area on a different floor. Another nurse testified that, when asked to help,
relator would at times say that she was busy and act defensive; for instance, when asked
to help change a bed in a different department, relator reported to her supervisor that she
could not help and appeared upset to be asked. That nurse testified that, on another
occasion, relator did not feed a patient and failed to report that he had not been fed.
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Relator testified that, in her performance reviews, she was told to “do[] better,” but
she was not spoken to about all of the issues documented on her discharge. She stated
that if she failed to answer a call light, it meant she was going to another patient, and that
she did not refuse to help the nurses, but that “when it’s very busy [she] could be in any
given place.” She testified that, on the day the patient went unfed, she had placed the tray
on the charge nurse’s desk and fulfilled her other duties because she believed the charge
nurse would deliver it.
The ULJ determined that relator had been discharged because of employment
misconduct and was therefore disqualified from receiving unemployment benefits. The
ULJ found that the testimony of Glacial Ridge’s employees was more credible than
relator’s testimony and that relator’s conduct, which had the potential to seriously
jeopardize patient health and safety, displayed clearly a violation of the employer’s
interests and standard of behavior the employer had a right to expect. The ULJ further
found that, although relator’s supervisor did not provide her with a performance review
or warnings before discharging her, unemployment law did not require ongoing warnings
or other disciplinary steps before an employee’s discharge. Relator sought
reconsideration, which was denied. This certiorari appeal follows.
DECISION
This court reviews a ULJ’s decision to determine whether substantial rights were
prejudiced because the findings, inferences, conclusions, or decision are unsupported by
substantial evidence in view of the record as a whole or affected by an error of law. 2014
Minn. Laws ch. 271, art. 1, § 1 (to be codified at Minn. Stat. § 268.105, subd. 7(d)
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(2014)). An employee who is discharged for employment misconduct is ineligible to
receive unemployment benefits. Minn. Stat. § 268.095, subd. 4(1) (2012). “Employment
misconduct means any intentional, negligent, or indifferent conduct, on the job or off the
job that displays clearly: (1) a serious violation of the standards of behavior the employer
has the right to reasonably expect of the employee; or (2) a substantial lack of concern for
the employment.” Minn. Stat. § 268.095, subd. 6(a) (2012). Employment misconduct
does not include inefficiency or inadvertence, simple unsatisfactory conduct, poor
performance because of inability or incapacity, or good-faith errors in judgment. Id.,
subd. 6(b) (2012).
Whether an employee committed misconduct sufficient to disqualify him or her
from receipt of unemployment benefits presents a mixed question of law and fact. Stagg
v. Vintage Place Inc., 796 N.W.2d 312, 315 (Minn. 2011). “Whether the employee
committed a particular act is a fact question, which we review in the light most favorable
to the decision and will affirm if supported by substantial evidence.” Dourney v. CMAK
Corp., 796 N.W.2d 537, 539 (Minn. App. 2011). But this court reviews de novo whether
a particular act amounts to disqualifying misconduct. Stagg, 796 N.W.2d at 315.
Relator argues that her conduct did not rise to the level of disqualifying
misconduct because it did not amount to insubordination, but was, at best, inefficiency or
poor performance. To support her argument, she cites a definition of insubordination in a
supreme court case dealing with the statutory requirements for discharging a teacher. See
Ray v. Minneapolis Bd. of Ed., 295 Minn. 13, 17, 202 N.W.2d 375, 378 (1972). “The
Minnesota courts have held that an employee’s insubordination may constitute
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misconduct.” Deike v. Gopher Smelting, 413 N.W.2d 590, 592 (Minn. App. 1987). But
the definition of employment misconduct for the purpose of determining eligibility for
unemployment benefits specified by statute is exclusive, and no other definition applies.
Minn. Stat. § 268.095, subd. 6(e) (2012).
Relator also cites a previous common-law definition of employment misconduct
as requiring “wilful,” “wanton,” or “deliberate” behavior, as stated in Tilseth v. Midwest
Lumber Co., 295 Minn. 372, 374–75, 204 N.W.2d 644, 646 (1973). The Tilseth
definition was superseded by statute in 1997 when the Minnesota legislature defined
employment misconduct. Houston v. Int’l Data Transfer Corp., 645 N.W.2d 144, 149
(Minn. 2002). Tilseth-grounded cases “remain instructive as to the areas in which the
Tilseth and [current] statutory definitions overlap.” Lawrence v. Ratzlaff Motor Express
Inc., 785 N.W.2d 819, 823 (Minn. App. 2010), review denied (Minn. Sept. 29, 2010).
But even assuming that the current statutory language, which excludes “inefficiency or
inadvertence” from the definition of employment misconduct, requires more than
ordinary negligence for employment misconduct, the ULJ did not err by determining that
relator’s conduct met the statutory standard. See Minn. Stat. § 268.095, subd. 6(b)(2).
“As a general rule, refusing to abide by an employer’s reasonable policies and requests
amounts to disqualifying misconduct.” Schmidgall v. FilmTec Corp., 644 N.W.2d 801,
804 (Minn. 2002). Relator’s employer presented evidence of at least five incidents in
which relator declined to fulfill her job responsibilities. “[An employee’s behavior] may
be considered as a whole in determining the propriety of her discharge and her
qualification for unemployment compensation benefits.” Drellack v. Inter–Cnty. Cmty.
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Council, Inc., 366 N.W.2d 671, 674 (Minn. App. 1985). Taken as a whole, relator’s
behavior was sufficient to sustain the ULJ’s determination that relator committed
employment misconduct.
Relator argues that the record does not contain substantial evidence that the nurses
gave her direct orders relating to her job responsibilities or that they had authority to do
so. But evidence of deliberate work avoidance may also support a determination that an
employee engaged in employment misconduct. See Krantz v. Larco Div., 363 N.W.2d
833, 834 (Minn. App. 1985) (concluding that relator’s work record of unnecessary delays
and deliberate work avoidance was sufficient to rise to the level of misconduct under the
Tilseth definition). Here, the record contains evidence that relator avoided certain job
duties under circumstances permitting a reasonable inference that she deliberately
avoided those duties, including affirmatively declining to assist other nurses with
necessary tasks.
Relator also maintains that her employer’s failure to follow disciplinary
procedures by giving warnings about her behavior precludes a determination that she was
discharged for employment misconduct. The Minnesota Supreme Court, however, has
held that “an employee’s expectation that the employer will follow its disciplinary
procedures has no bearing on whether the employee’s conduct violated the standards the
employer has a reasonable right to expect or whether any such violation is serious.”
Stagg, 796 N.W.2d at 316. Therefore, we reject relator’s argument.
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Relator finally argues that the ULJ erred by relying on unreliable and
uncorroborated hearsay evidence in making a determination of employment misconduct.
In particular, relator argues that a written summary of complaints about her behavior,
which was not signed by the complaining nurses or noted in her performance review,
does not constitute substantial evidence supporting the ULJ’s determination. Applicable
rules permit a ULJ to “receive any evidence that possesses probative value, including
hearsay, if it is the type of evidence on which reasonable, prudent persons are accustomed
to rely in the conduct of their serious affairs.” See 39 Minn. Reg. 147, 154 (Aug. 4,
2014) (to be codified at Minn. R. 3310.2922 (Supp. 2014)). Under this rule, the fact that
testimony is based on hearsay or concerns documents not presented in evidence does not
mandate its exclusion, but is a factor for the ULJ to weigh in judging the credibility of the
witnesses. See Ywswf v. Teleplan Wireless Servs., Inc., 726 N.W.2d 525, 532–33 (Minn.
App. 2007) (noting that the ULJ evaluates witness credibility using “factors that bear on
believability and weight”). Here, in addition to the summary of complaints, the ULJ
heard testimony from two nurses who worked with relator and corroborated the behavior
that formed the basis for the complaints. And the ULJ made an express finding that the
testimony of the employer’s witnesses was more credible than relator’s testimony. This
court will “defer to [a ULJ’s] credibility determinations . . . that are supported by
substantial evidence.” Ywswf, 726 N.W.2d at 527. Based on the record presented, the
ULJ did not err by finding that relator’s conduct clearly displayed a serious violation of
the standards of behavior her employer had the right to reasonably expect and
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determining that she is ineligible for unemployment benefits based on employment
misconduct. See Minn. Stat. § 268.095, subd. 6(a).
Affirmed.
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