                         This opinion will be unpublished and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
                                    A15-0476

                                   Betty D. Tuolee,
                                       Relator,

                                          vs.

                            BKD Employee Services, LLC,
                                  Respondent,

                 Department of Employment and Economic Development,
                                     Respondent.

                               Filed November 23, 2015
                                      Affirmed
                                    Hooten, Judge

                 Department of Employment and Economic Development
                                 File No. 32911790-4

Thomas H. Boyd, Catherine M. Cumming, certified student attorney, Winthrop &
Weinstine, P.A., Minneapolis, Minnesota (for relator)

BKD Employee Services, Inc., Nashville, Tennessee (pro se respondent)

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

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

Hooten, Judge.
                         UNPUBLISHED OPINION

HOOTEN, Judge

        Relator challenges the decision of an unemployment law judge (ULJ) that she is

ineligible for unemployment benefits because she was discharged for employment

misconduct, arguing that the ULJ’s credibility determinations are unsupported by the

record and inadequate and that the alleged single incident does not rise to the level of

misconduct. We affirm.

                                        FACTS

        Relator Betty D. Tuolee worked as a resident assistant for respondent BKD

Employment Services, LLC, an assisted-living community specializing in dementia care.

Tuolee was employed by BKD from March 11, 2014, until she was discharged in August

2014.    Tuolee worked the overnight shift, and her duties included doing laundry,

cleaning, and caring for and ensuring the safety of the residents. BKD’s policies prohibit

its employees from “sleeping or appearing to sleep in common areas while on the job

during working time or paid break periods, or at any time.”         Prior to starting her

employment, Tuolee was notified of BKD’s policies and signed an acknowledgement that

she received a copy of the employee handbook. At approximately 4:00 a.m. on August

14, 2014, a maintenance technician observed Tuolee sleeping on a couch in a common

area during her work hours.     The technician reported the incident to the executive

director, and Tuolee was immediately discharged.

        Tuolee applied for unemployment benefits. In her application, Tuolee denied

sleeping on the job, explaining that she had merely been resting when on her break.


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Respondent Minnesota Department of Employment and Economic Development (DEED)

made an initial determination that Tuolee was eligible for benefits because her actions

“were not employment misconduct because they were not intentional or negligent.”

BKD filed an administrative appeal, and a ULJ conducted a de novo hearing.

       At the hearing, the maintenance technician testified that on August 14, 2014, at

approximately 4:00 a.m., he came into work early and saw an employee he did not know,

later identified to be Tuolee, lying horizontally on the couch in the common area with her

feet off the ground. He testified that Tuolee had her eyes closed and that he stood over

her for approximately one minute before trying to speak with her. He stated that he

attempted to speak with Tuolee a few times before she awoke and that when she awoke

she “seemed startled and asked what was going on.” The maintenance technician told

Tuolee that he had observed her sleeping, but she denied being asleep. He testified that

he reported the incident to the executive director because, due to the nature of their

facility and its residents, employees “need to be awake and alert for safety.”

       Tuolee testified that she was sitting on the couch folding clothes when the

maintenance technician came in. She denied sleeping and stated that she did not suffer

from any medical condition that would cause her to fall asleep.

       The executive director testified that, when she spoke with Tuolee about the

incident, Tuolee initially denied sleeping. She said that Tuolee, after being told of the

maintenance technician’s claim that he had observed her sleeping, said, “[O]h well I was

on my break.” The executive director noted that employees could sleep or appear to be

sleeping only in the break room and that Tuolee was not in the break room when she was


                                             3
observed sleeping. She testified that if Tuolee had merely been watching television in the

common area, the outcome would have been different, but that Tuolee was discharged

because she was observed sleeping. Tuolee had not received any prior warnings or

reprimands before she was discharged.

       The ULJ determined that Tuolee was ineligible for unemployment benefits

because she “was sleeping on the job in violation of the employer’s policy and that this

policy violation is a serious violation of standards of behavior that this employer had a

right to expect of Tuolee, given her responsibility to ensure the safety of the residents.”

Tuolee filed a request for reconsideration, stating that she was on her break and was

sitting on the couch when the maintenance technician entered and that she walked toward

him to speak with him. The ULJ affirmed his previous determination that Tuolee was

discharged for employment misconduct. This certiorari appeal followed.

                                     DECISION

       The purpose of chapter 268 is to provide workers who are unemployed through no

fault of their own with a temporary partial wage to assist them in becoming reemployed.

Minn. Stat. § 268.03 (2014).       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). Under Minnesota law, “[e]mployment misconduct

means 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.” Minn.

Stat. § 268.095, subd. 6(a) (2014).      In determining whether someone qualifies for


                                            4
unemployment benefits, this court is guided by the principles that the unemployment

benefits statutes are “remedial in nature” and that “any statutory provision that would

preclude an applicant from receiving benefits must be narrowly construed.” Minn. Stat.

§ 268.031 (2014).

      “Whether an employee engaged in conduct that disqualifies the employee from

unemployment benefits is a mixed question of fact and law.” Stagg v. Vintage Place Inc.,

796 N.W.2d 312, 315 (Minn. 2011) (quotation omitted).            Whether an employee

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

(Minn. App. 2006). We review the ULJ’s findings of fact in the light most favorable to

the decision and give deference to the ULJ’s credibility determinations. Id. We review

de novo the question of whether the employee’s acts constitute employment misconduct.

Stagg, 796 N.W.2d at 315.

      When reviewing the decision of a ULJ, this court “may affirm the decision of the

unemployment law judge or remand the case for further proceedings; or it may reverse or

modify the decision if the substantial rights of the [relator] may have been prejudiced

because the findings, inferences, conclusion, or decision” are unsupported by substantial

evidence in the record. Minn. Stat. § 268.105, subd. 7(d) (Supp. 2015). Substantial

evidence is defined as “(1) such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion; (2) more than a scintilla of evidence; (3) more than

some evidence; (4) more than any evidence; or (5) the evidence considered in its

entirety.” Dourney v. CMAK Corp., 796 N.W.2d 537, 539 (Minn. App. 2011) (quotation

omitted).


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                                             I.

       Tuolee challenges the ULJ’s determination that the maintenance technician’s

testimony was more credible than her testimony. The ULJ must make credibility findings

when such findings are central to the ULJ’s decision. Wichmann v. Travalia & U.S.

Directives, Inc., 729 N.W.2d 23, 29 (Minn. App. 2007). It is undisputed that credibility

is critical to the outcome of this case.      This court defers to the ULJ’s credibility

determinations when (1) they are supported by substantial evidence, and (2) the ULJ

provides a valid reason for crediting or discrediting testimony that may significantly

affect the ultimate decision. See Ywswf v. Teleplan Wireless Servs., Inc., 726 N.W.2d

525, 533 (Minn. App. 2007); see also Minn. Stat. § 268.105, subd. 1a(a) (2014)

(providing that the ULJ must “set out the reason for crediting or discrediting” testimony

if the witness’s credibility “has a significant effect on the outcome of a decision”).

       Tuolee argues that there was no substantial evidence to support the ULJ’s finding

of fact that Tuolee fell asleep because the testimony that the ULJ credited, the

maintenance technician’s testimony, was not plausible. Tuolee argues that his “testimony

that he stood over an allegedly sleeping woman, whom he did not know, for a full

minute, waiting for her to wake up is farfetched and unreasonable.” We disagree.

       The maintenance technician testified that when he entered the common area he

observed Tuolee sleeping on a couch in a common area, he stood over her for

approximately one minute, and he eventually woke her by trying to speak with her. The

ULJ, after weighing all of the testimony, found his testimony credible. Furthermore, the

maintenance technician’s testimony that he stood over Tuolee for a minute, rather than


                                              6
seeming unreasonable or implausible, seems consistent with a desire to be certain that

Tuolee was asleep before confronting her and reporting her behavior to management.

       Additionally, Tuolee was inconsistent in explaining what had occurred. In her

application for unemployment benefits, Tuolee stated that she was not sleeping, but was

resting while she was on her break. At the hearing, however, Tuolee testified that she

had been sitting on a couch in the common room folding clothes when the maintenance

technician walked in. But, the executive director testified that when Tuolee was told

about the maintenance technician’s report, Tuolee initially denied sleeping, but then

stated, “[O]h well I was on my break.” Given the reasonableness of the maintenance

technician’s version of the incident and the inconsistencies of Tuolee’s, we conclude that

the ULJ’s credibility determination was supported by substantial evidence.

       Tuolee next argues that the ULJ failed to put forth sufficient reasons for crediting

or discrediting the witnesses’ testimony. The ULJ stated that he found the maintenance

technician’s testimony to be more credible than Tuolee’s because he “would have no

clear reason for lying.” Furthermore, the ULJ found that Tuolee’s testimony was “self-

serving and somewhat conflicting, in that she also testified that she was on break,

presumably suggesting that it was okay for her to sleep.” The ULJ also observed that

Tuolee’s suggestion that being on break would make it acceptable to be asleep in the

common area was inconsistent with the testimony of BKD’s executive director, who

stated that it would never be acceptable to sleep in a common area.

       Tuolee argues that these credibility findings “fail[] to set forth the reasons for a

credibility determination and fail[] to satisfy the statute’s requirements.” But, the ULJ’s


                                            7
credibility findings directly touch on the witnesses’ interests in the case and the lack of

corroboration of Tuolee’s testimony, both listed in Ywswf as factors to be considered in

determining credibility. 726 N.W.2d at 532–33. We hold that the ULJ’s credibility

determinations were sufficient to meet the statutory requirement.

                                            II.

       Tuolee argues that a single incident of sleeping on the job does not constitute

employment misconduct under Minn. Stat. § 268.095, subd. 6(a). “If the conduct for

which the [employee] was discharged involved only a single incident, that is an important

fact that must be considered in deciding whether the conduct rises to the level of

employment misconduct. . . .” Id., subd. 6(d) (2014).

       Tuolee contends that there was no evidence that she intentionally or willfully

violated her employer’s policy and that the incident for which she was terminated was a

single incident of misconduct in an otherwise unblemished record. “Because the nature

of an employer’s interest will vary depending upon the job, what constitutes disregard of

that interest, and therefore misconduct, will also vary.” Schmidgall v. FilmTec Corp.,

644 N.W.2d 801, 806 (Minn. 2002) (quotation omitted). A single incident may constitute

misconduct “if it represents a sufficient enough disregard for the employer’s

expectations.” Blau v. Masters Rest. Assocs., Inc., 345 N.W.2d 791, 794 (Minn. App.

1984). A single incident that demonstrates that the employer can no longer trust the

employee with the “essential functions of the job” is sufficient to warrant a determination

of employment misconduct. See Skarhus, 721 N.W.2d at 344 (considering the issue




                                            8
under the then-existing single incident exception to the statutory definition of

employment misconduct).

      Tuolee’s job was to care for vulnerable adults who could be harmed if they got out

of bed and wandered around unsupervised. Tuolee herself acknowledged the importance

of keeping close watch of the residents because they were vulnerable adults who could

get up during the night. On the overnight shift, four staff members were responsible for

the welfare of 47 residents. The executive director testified that it was “absolutely

essential” that the employees stay awake because of the vulnerability of the residents.

Because of their vulnerability, the safety of the residents is impaired if a staff member

falls asleep, even if the staff member sleeps only on one occasion. By sleeping while at

work, even only on one occasion, Tuolee seriously violated the standards of behavior

required at the assisted-living community. Because the August 14, 2014 incident alone

constitutes employment misconduct, the ULJ did not err in determining that Tuolee was

not eligible for unemployment benefits.

      Affirmed.




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