                          This opinion will be unpublished and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
                                     A14-1080

                                      Robin Larson,
                                        Relator,

                                            vs.

                                Capstone Services, LLC,
                                     Respondent,
                 Department of Employment and Economic Development,
                                     Respondent.

                                    Filed June 8, 2015
                                        Affirmed
                                     Stauber, Judge

                  Department of Employment and Economic Development
                                  File No. 32237007-3

Donald C. Erickson, Fryberger, Buchanan, Smith & Frederick, P.A., Duluth, Minnesota
(for relator)

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

         Considered and decided by Peterson, Presiding Judge; Ross, Judge; and Stauber,

Judge.

                         UNPUBLISHED OPINION

STAUBER, Judge

         Relator challenges the unemployment law judge’s (ULJ) decision that she was

ineligible for unemployment benefits because she was discharged for employment
misconduct. Because relator’s conduct of gossiping about co-workers evinced a serious

violation of the conduct the employer had a right to reasonably expect, we affirm.

                                           FACTS

       In November 2003, relator Robin Larson began working for respondent Capstone

Services LLC, an entity that operates group homes for developmentally disabled adults. In

2010, relator was promoted to lead habilitation specialist. But about three years later, on

February 6, 2013, relator received her first written warning for (1) “talking to others about

concerns, complaints and/or disagreements regarding certain co-workers”; (2) failing to

complete “certain duties and responsibilities in a satisfactory manner”; (3) failing to

properly administer medication; and (4) unsatisfactory performance as a Lead Habilitation

Specialist. The written warning noted that under Capstone’s code of conduct policy, relator

was expected to maintain positive working relations with staff members and “[a]void any

public acts or statements detrimental to the interests of [Capstone] or any of its consumers

and any other employees.”

       Relator received a second written warning on February 19, 2013, after she started

complaining at a staff meeting about her supervisor and “other coworkers in front of

workers that did not work at that same program.” Relator was warned that her “statements

did not encourage positive working relations nor promote a positive demeanor as a Lead

Habilitation Specialist” as outlined by the position’s job requirements. She was also warned

for failing to complete a directive by a Capstone nurse. The written warning stated that

“you are on a Final Notice” and that “[i]f you fail to comply with the expectations . . . or if




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you are negligent in any other areas of your job performance, you will be subject to further

disciplinary action up to and including suspension and/or termination.”

       Despite these warnings relator received a two-day suspension in June 2013, for

“[g]ossiping” about a co-worker. The written suspension reminded relator that her

“employment is in jeopardy” and that failure to comply with her employment expectations

could result in termination.

       On January 29, 2014, Capstone employee, B.P., called to complain about relator.

B.P. was crying and upset and stated that she no longer wanted to work with relator because

she created a “negative atmosphere” by “gossiping about people [and] complaining about

wanting to get people fired.” Human resources then scheduled a meeting with relator for

February 7, 2014. The day before the meeting, relator called her supervisor to express her

concern about the meeting. During the conversation, relator admitted to her supervisor that

she should not have been “gossiping” about other people.

       Relator’s employment with Capstone was terminated on February 7, 2014. Relator

subsequently applied for unemployment benefits with respondent Minnesota Department of

Employment and Economic Development (department) and was deemed ineligible for

benefits because she had been discharged for employment misconduct. Relator appealed

that determination and, following a de novo hearing, the ULJ found that despite receiving

multiple warnings to refrain from gossiping about co-workers, relator continued to violate

Capstone’s policy prohibiting gossiping at work. The ULJ concluded that relator’s

“actions evinced a serious violation of the standards of behavior Capstone had the right to




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reasonably expect” and, therefore, relator was discharged for employment misconduct.

Relator requested reconsideration, and the ULJ affirmed. This certiorari appeal followed.

                                      DECISION

       When reviewing a ULJ’s eligibility decision, this court may affirm, remand for

further proceedings, or reverse or modify the decision if the substantial rights of the

relator have been prejudiced because the findings, inferences, conclusion, or decision are

affected by an error of law or are unsupported by substantial evidence. Minn. Stat.

§ 268.105, subd. 7(d) (2014). We view the ULJ’s factual findings in the light most

favorable to the decision and defer to the ULJ’s credibility determinations. Peterson v.

Nw. Airlines Inc., 753 N.W.2d 771, 774 (Minn. App. 2008), review denied (Minn. Oct. 1,

2008). We “will not disturb the ULJ’s factual findings when the evidence substantially

sustains them.” Id.

       An employee who was discharged is eligible for unemployment benefits unless the

discharge was for employment misconduct. Minn. Stat. § 268.095, subd. 4(1) (2014).

“Employment misconduct” is “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.” Id., subd. 6(a) (2014). “Whether an employee

committed employment misconduct is a mixed question of fact and law.” Peterson, 753

N.W.2d at 774. Whether the employee committed the act is a fact question. Skarhus v.

Davanni’s Inc., 721 N.W.2d 340, 344 (Minn. App. 2006). But whether the employee’s




                                              4
act constitutes employment misconduct is a question of law, which is reviewed de novo.

Stagg v. Vintage Place Inc., 796 N.W.2d 312, 315 (Minn. 2011).

       Relator argues that the ULJ erred by concluding that she engaged in employment

misconduct because “[t]ruthful statements about the performance of co-employees are not

misconduct.” We disagree. “An employer has a right to expect that its employees will

abide by reasonable instructions and directions.” Vargas v. Nw. Area Found., 673

N.W.2d 200, 206 (Minn. App. 2004), review denied (Minn. Mar. 30, 2004). “[W]hat is

reasonable will vary according to the circumstances of each case.” Id. (quotations

omitted). A knowing violation of an employer’s directives, policies, or procedures is

employment misconduct because it demonstrates a willful disregard of the employer’s

interests. Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 806 (Minn. 2002). “This is

particularly true when there are multiple violations of the same rule involving warnings

or progressive discipline.” Id. at 806-07.

       Here, Capstone’s code of conduct required its employees to “[a]void any

disorderly conduct . . . against any other employee,” and to “[a]void any public acts or

statements detrimental to the interests of [Capstone] or any of its consumers and any

other employees.” Capstone’s policy was reasonable and intended for the Lead

Habilitation Specialist to maintain a positive demeanor and encourage positive working

relations. Relator violated this policy on several occasion by gossiping about co-workers,

and she received several warnings for violating this policy. In fact, relator admitted to

her supervisor shortly before her employment was terminated that she should not have

been “gossiping” about other people. Although some of relator’s statements might have


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been “truthful,” the statements still violate the policy because they create a negative work

environment, which could be avoided if relator had simply reported the co-worker’s

shortcomings to a supervisor and allowed the supervisor to address the situation rather than

gossiping about it to other employees. And the multiple warnings relator received

demonstrates that she was aware of Capstone’s policy and knowingly disregarded the policy

by continuing to gossip about co-workers. Relator’s knowing disregard of Capstone’s

reasonable policy constitutes employment misconduct. See Sandstrom v. Douglas Mach.

Corp., 372 N.W.2d 89, 91 (Minn. App. 1985) (stating that as a general rule, if an

employer’s request is reasonable and does not impose an unreasonable burden on the

employee, the employee’s refusal to abide by the request constitutes misconduct).

       Relator also argues that the district court’s misconduct finding is not supported by

the record because, in the absence of supporting witness testimony, the hearsay allegation in

the termination letter that she failed to follow the proper protocol for the administration of

medicine is insufficient to demonstrate that she committed employment misconduct. But

the ULJ never found that relator committed employment misconduct on the basis that she

failed to properly administer medicine. Rather, the employment misconduct determination

was premised upon relator’s gossiping about co-workers in violation of Capstone’s

reasonable employee conduct policy. And, as we concluded above, relator’s conduct

constituted employment misconduct.

       Affirmed.




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