                          This opinion will be unpublished and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                        UNPUBLISHED OPINION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


                                             2
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.




                                              3
       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)


                                              4
(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


                                             5
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.


                                            6
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.




                                             7
       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




                                             8
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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