                          This opinion will be unpublished and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
                                     A15-0474

                                   Georgina Pletcher,
                                       Relator,

                                           vs.

                             River Hill Assisted Living, Inc.,
                                       Respondent,
                  Department of Employment and Economic Development,
                                       Respondent.

                                Filed December 7, 2015
                                       Affirmed
                                    Stauber, Judge
                               Chutich, Judge, dissenting

                  Department of Employment and Economic Development
                                  File No. 32950407-3

Georgina Pletcher, Superior, Wisconsin (pro se relator)

River Hill Assisted Living, Inc., Duluth, Minnesota (respondent employer)

Lee B. Nelson, Tim C. Schepers, Minnesota Department of Employment and Economic
Development, St. Paul, Minnesota (for respondent department)

      Considered and decided by Chutich, Presiding Judge; Ross, Judge; and

Stauber, Judge.
                         UNPUBLISHED OPINION

STAUBER, Judge

       In this certiorari appeal from the decision of the unemployment-law judge (ULJ)

that relator is ineligible for unemployment benefits because she was discharged for

employment misconduct, relator argues that she was a good employee and that the

employer fabricated the allegations against her. We affirm.

                                           FACTS

       In 2006, relator Georgina Pletcher began working as a full-time caregiver and cook

for respondent River Hill Assisted Living, Inc., which operates a ten-room home for senior

citizens. Eight years later, on September 28, 2014, relator was discharged for poor

performance and “lack of professionalism.” Relator subsequently applied for

unemployment benefits with respondent Minnesota Department of Employment and

Economic Development (department). The department determined that relator was

ineligible for benefits because she was discharged for employment misconduct. Relator

appealed that determination, and a de novo hearing was conducted.

       At the hearing, Mark Stenhammer, the owner of River Hill, testified that relator

generally displayed a poor attitude and that residents complained that relator frequently

argued with them about petty matters. Stenhammer testified that, for example, relator

admonished a resident for eating her dessert before eating the meal and that relator refused

to allow residents in the dining area prior to the scheduled meal time, even if the food was

prepared and ready to be served. Stenhammer also testified that he frequently found relator

watching television in the kitchen when she was supposed to be caring for the residents.


                                              2
And according to Stenhammer, the family members of residents often complained that

relator was neglecting the residents.

       Stenhammer testified that he warned relator about her demeanor and lack of

professionalism 10 to 12 times, but she always denied doing anything wrong and “always

had to argue through anything I wanted to talk to her about.” Stenhammer further testified

that he continued to employ relator out of a sense of compassion and because hiring a new

employee to replace her was expensive and time consuming. But, according to

Stenhammer, the “final straw” was a resident’s complaint that “she pays a lot of rent

and . . . always has to put up with a bitchy cook.”

       Relator disagreed with Stenhammer’s assessment of her demeanor during her

employment at River Hill. Instead, relator claimed that she was a “good employee” and that

the clients “loved” her. Relator further claimed that she was never warned that she was

failing to meet her employer’s expectations.

       The ULJ found that “Stenhammer is more credible regarding [relator’s] conduct

during the employment” and that relator’s behavior “displayed a lack of professionalism

during [her] employment.” The ULJ also found that relator’s conduct was “clearly a

serious violation of the employer’s reasonable expectations.” Thus, the ULJ concluded that

relator was ineligible for unemployment benefits because she was discharged for

employment misconduct. Relator requested reconsideration, and the ULJ affirmed the

decision. This certiorari appeal followed.




                                               3
                                       DECISION

       Relator challenges the ULJ’s determination that she committed employment

misconduct. On certiorari appeal from a decision by the ULJ, we “may reverse or modify

the [ULJ’s] decision if the substantial rights of the petitioner may have been prejudiced

because the findings, inferences, conclusion, or decision are” not supported by substantial

evidence in the record or are affected by an error of law. Minn. Stat. § 268.105, subd.

7(d)(4)-(5) (2014).

       An applicant who is discharged from employment because of employment

misconduct is ineligible for unemployment benefits. Minn. Stat. § 268.095, subd. 4(1)

(2014). “Employment misconduct” is defined as “any intentional, negligent, or

indifferent conduct . . . 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.” Id., subd. 6(a) (2014). Whether an

employee committed misconduct is a mixed question of fact and law. Schmidgall v.

FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002). Whether an employee committed a

particular act is a question of fact. Skarhus v. Davvani’s Inc., 721 N.W.2d 340, 344

(Minn. App. 2006). But whether a particular act demonstrates employment misconduct is

a question of law, which this court reviews de novo. Stagg v. Vintage Place Inc., 796

N.W.2d 312, 315 (Minn. 2011).

       The dissent concludes that relator’s conduct did not rise to the level of

employment misconduct. Although we acknowledge that whether relator’s conduct rose

to the level of employment misconduct is a close issue, it is not the issue raised by


                                               4
relator. Rather, relator challenges the ULJ’s findings that she committed the particular

acts that the ULJ determined to be misconduct, arguing that she was a good employee

and Stenhammer fabricated the allegations against her.

       Relator’s assertions implicate credibility determinations, and it is well settled that

“[c]redibility determinations are the exclusive province of the ULJ and will not be

disturbed on appeal.” Skarhus, 721 N.W.2d at 345. Here, Stenhammer testified that

relator generally displayed a “bad attitude” and that the residents and their family

members frequently complained about relator. Stenhammer also testified that relator was

frequently observed watching television in the kitchen rather than caring for the residents.

If believed, this testimony establishes that relator’s conduct constituted a serious violation

of the standards of behavior that Stenhammer had the right to reasonably expect from his

employees. Although relator denied the allegations that she acted in an unprofessional

manner, the ULJ found Stenhammer’s testimony to be more credible because he

“presented a highly plausible chain of events that would lead to his decision to discharge”

relator, and “presented several examples of poor conduct displayed by [relator] during the

employment.” The evidence in the record substantially supports the ULJ’s credibility

determination, and we defer to the ULJ’s credibility determinations. See Skarhus, 721

N.W.2d at 345. Therefore, the ULJ did not err by concluding that relator was ineligible

for unemployment benefits because she was discharged for employment misconduct.

       Affirmed.




                                              5
CHUTICH, Judge (dissenting)

       I respectfully dissent from the majority’s legal conclusion that the unemployment

law judge correctly concluded that Georgina Pletcher committed employment

misconduct. Given the remedial nature of the unemployment-compensation statutes, and

the description of the conduct at issue here, especially when placed in the context of the

parties’ eight-year employment relationship, I do not believe that Georgina Pletcher’s

behavior rose to the level of employment misconduct that would disqualify her from

receiving benefits.

       Because the Minnesota Unemployment Compensation Law is “remedial in nature

and must be applied in favor of awarding unemployment benefits, . . . any statutory

provision that would preclude an applicant from receiving benefits must be narrowly

construed.” Minn. Stat. § 268.031 (2014); Jenkins v. American Exp. Financial Corp.,

721 N.W.2d 286, 289 (Minn. 2006). The majority correctly sets out the definition of

employment misconduct contained in Minn. Stat. § 268.095, subd. 6(a)(1) (2014).

Another statutory provision specifically states, however, that “[r]egardless of paragraph

(a),” “simple unsatisfactory conduct” or “conduct that is a consequence of the applicant’s

inability or incapacity” is not employment misconduct.”        Id. at subd. 6(b)(3), (5).

Whether an employee “was properly disqualified from receipt of unemployment

compensation benefits is a question of law on which we are free to exercise our

independent judgment.” Jenkins, 721 N.W.2d at 289.

       Here the record shows that Pletcher, who was sixty when discharged, had worked

for River Hill Assisted Living for eight years since it opened in 2006. She worked as the


                                           D-1
sole cook and also as a care giver for the ten residents who lived in the facility. The

record shows that the main reason that she was discharged was for a lack of

professionalism and a difficulty in keeping a positive attitude. Examples given by her

employer included arguing with residents about not eating their dessert first before their

meal or about the quality of the meatloaf that was served. According to her employer,

this difficulty in keeping a positive attitude had been a constant, “probably the whole

time she was employed here.” The employer also noted that Pletcher did not respond to

its telephone calls or texts when she was off-duty. The last straw for the employer before

it fired her on September 28, 2014, was when a resident complained in August that she

“pays a lot of rent and . . . always has to put up with a bitchy cook.”

       Pletcher, who was representing herself at the hearing, did not present any evidence

from any other witness to counter the charge of unprofessionalism until she requested

reconsideration, which the unemployment law judge found was too late under the rules.1

Even accepting the record as developed at the hearing and honoring the unemployment-

law judge’s credibility determinations, however, Pletcher’s negative attitude seems more

akin to simple unsatisfactory performance than to employment misconduct, especially

given the employer’s testimony that her conduct had not changed appreciably in all the

time that she had worked for River Hills. See Bray v. Dogs & Cats Ltd., 679 N.W.2d 182

(Minn. App. 2004) (reversing determination of disqualification under earlier version of

1
   Upon reconsideration, she submitted letters from two family members of River Hills
residents who praised her care and from the nurse who supervised her the last five years
at River Hill. The supervisor “highly recommended” Pletcher stating that she “has an
excellent rapport with people of all ages . . . is reliable and responsible and takes great
pride in what she does.”

                                             D-2
the statute finding that relator was discharged for inefficient, unsatisfactory conduct, and

poor performance due to inability). If her behavior displayed a serious violation of the

standards that the employer had a right to reasonably expect, it is difficult to believe that

she would have been employed by River Hill as long as she was. Because the record

evidence does not support the legal conclusion that Pletcher was discharged for

employment misconduct, I would reverse the unemployment-law judge’s ineligibility

determination.




                                            D-3
