Judith A. Strande, Relator, vs. Volunteers of America Assisted, Respondent, Commissioner of Employment and Economic Development, Respondent.

Judith A. Strande, Relator, vs. Volunteers of America Assisted, Respondent, Commissioner of Employment and Economic Development, Respondent. A04-1112, Court of Appeals Unpublished, February 22, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1112

 

 

Judith A. Strande,

Relator,

 

vs.

 

Volunteers of America Assisted,

Respondent,

 

Commissioner of Employment and Economic Development,

Respondent.

 

 

Filed February 22, 2005

Affirmed

Huspeni, Judge*

 

 

Department of Employment and Economic Development

File No. 2042 04

 

 

Judith A. Strande, 7435 122nd Avenue North, Champlin, MN 55316 (pro se relator)

 

Volunteers of America Assisted, 11372 Robinson Drive NW, Coon Rapids, MN 55433 (respondent employer)

 

Lee B. Nelson, Linda A. Holmes, Department of Employment and Economic Development, E200 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101 (for respondent commissioner)

 

            Considered and decided by Toussaint, Chief Judge; Dietzen, Judge; and Huspeni, Judge.

U N P U B L I S H E D   O P I N I O N

HUSPENI, Judge

            Relator challenges the decision of the commissioner's representative determining that she was disqualified from receiving unemployment benefits because she had been discharged for misconduct.  In determining that relator had engaged in misconduct, the representative cited relator's actions in allowing a resident to stay overnight in a vacant apartment without notifying staff, in denying that she had done so, and in discussing an incident with a resident's family despite being told not to do so.  Relator contends that her actions were justified and that she did nothing wrong.  Because substantial evidence reasonably supports the decision of the commissioner's representative and shows relator engaged in misconduct, we affirm.

FACTS

            Relator Judith Strande was employed as an administrative assistant at Elder Homestead, a Volunteers of America assisted-living facility, until she was terminated after the occurrence of several incidents.

            The first incident occurred on September 16, 2003.  A resident whose wife's medical problems prevented him from sleeping asked Strande if he could sleep in an empty apartment.  While it appears that only the wife was in need of care and the husband was a resident only to accompany her, the facility had a general rule that residents should not be unattended and should not be allowed to stay in vacant apartments, especially when no one was aware of it.  Nonetheless, Strande gave the resident a key and allowed him to stay in the apartment overnight without the staff's knowledge.  Strande first denied to her employer that she had done so, but later admitted her conduct.  On September 23, she was given a final warning based on policies "prohibiting violating resident's safety, insubordination and honesty."  The resident director warned her that "if I find you are dishonest with me or allow putting a resident in danger, you will be putting your position in jeopardy."

            The second incident occurred in mid-November.  A resident complained to Strande that money was missing from her purse.  Strande called the resident's son and his wife to discuss it with them and then typed up a report of the incident and put it in the director's mailbox.  The employer later learned that the family was upset about the communication.  The employer discussed the situation with Strande because it was not her job to discuss this type of issue with family members and because the employer was concerned about Strande's professionalism in doing so.  Strande denied doing anything wrong and believed that the employer misunderstood or misrepresented the conversation that she had with the resident's son.  She was told not to speak with the family about the issue again.

            On November 28, the resident's son came to visit the resident, and Strande discussed this situation with him further.  Her supervisor overheard the conversation and tried to stop it.  The supervisor later told Strande that her conduct had been inappropriate and made the employer look unprofessional, and Strande responded that she did not care.  Strande's employment was terminated that day for insubordinate conduct.

            Strande established an account with the commissioner for unemployment benefits but the department determined that she was disqualified because she had been discharged for misconduct.  After a hearing before an unemployment law judge (ULJ), the decision was reversed.  The employer appealed and the commissioner's representative reversed the ULJ, holding that Strande had been discharged for misconduct and was disqualified from receiving benefits.  This certiorari appeal followed.

D E C I S I O N

            "Whether an employee engaged in conduct that disqualifies the employee from unemployment benefits is a mixed question of fact and law."  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  An appellate court will review and defer to decisions made by the commissioner's representative, not the unemployment law judge.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  Findings of fact will be reviewed "in the light most favorable to the commissioner's decision" and the appellate court will not disturb them "as long as there is evidence that reasonably tends to sustain those findings."  Schmidgall, 644 N.W.2d at 804.  The appellate court will review questions of law de novo.  Id.

            The law in effect at the time of the discharge will be applied.  Brown v. Nat'l Am. Univ., 686 N.W.2d 329, 332 (Minn. App. 2004), review denied (Minn. Nov. 16, 2004).  Because the 2003 amendments were effective August 1, 2003, and the discharge occurred on November 28, 2003, the 2003 amendments will be applied.  See Minn. Stat. § 645.02 (2002) (unless otherwise specified, each act "takes effect on August 1 next following its final enactment").

            An employee who is discharged for employment misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4(1) (Supp. 2003).[1]  Employment misconduct is "any intentional, negligent, or indifferent conduct, on the job or off the job (1) that evinces a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee, or (2) that demonstrates a substantial lack of concern for the employment."  Minn. Stat. § 268.095, subd. 6(a) (Supp. 2003).  "Inefficiency, inadvertence, simple unsatisfactory conduct, a single incident that does not have a significant adverse impact on the employer, [and] conduct an average reasonable employee would have engaged in under the circumstances . . . are not employment misconduct."  Id.

            "The general rule is that if the request of the employer is reasonable and does not impose an unreasonable burden on the employee, a refusal will constitute misconduct."  Sandstrom v. Douglas Mach. Corp., 372 N.W.2d 89, 91 (Minn. App. 1985).  An employee's refusal to follow instructions based on a belief that the refusal was justified can also constitute misconduct.  Daniels v. Gnan Trucking, 352 N.W.2d 815, 816 (Minn. App. 1984).  In addition, an employee owes a duty to the employer to be honest and to properly carry out the employer's instructions.  Whorton v. Dep't of Health & Human Servs., 368 N.W.2d 750, 752 (Minn. App. 1985).

            The commissioner's representative ruled that Strande had been discharged for employment misconduct, determining that the evidence showed that Strande engaged in conduct that put a resident at a risk, engaged in dishonesty when being questioned about the incident, and engaged in insubordination.  Because the employer had a right to expect that Strande would not engage in such conduct, the commissioner's representative determined that she had been discharged due to employment misconduct and was disqualified from receiving unemployment benefits.

            Strande raises several challenges to the decision by the commissioner's representative.  First, she attempts to justify her decision to allow the resident to sleep in an unoccupied apartment, referring in part to facts not contained in the record below.  The record on appeal constitutes the papers filed below, exhibits, and the transcript.  Minn. R. Civ. App. P. 110.01; see also Minn. R. Civ. App. P. 115.04, subd. 1 (providing that rule 110 applies to certiorari appeals to extent possible).  The appellate court generally may not consider matters outside the record.  Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988).  Therefore, those facts may not be considered.

            As to the portion of the argument that is based on the record, Strande attempts to justify her decision by contending that the resident was not vulnerable, his request was reasonable, and she used her best judgment to make the decision.  But Strande fails to address the significance of the fact that she was dishonest when first asked about the situation and denied giving the resident a key.  See Whorton, 368 N.W.2d at 752 (noting employee's duty of honesty).

            Strande also addresses other issues that she believed existed between her and her employer and tries to explain or justify them.  But none of these issues was raised as a ground for her discharge at the hearing; in fact, when she attempted to testify and explain a complaint that she improperly entered the residents' rooms while they were being given care, the ULJ ruled that issue irrelevant.  Further, many of the facts she is asserting are being raised for the first time on appeal.  This court will not consider such arguments.  Thiele, 425 N.W.2d at 582-83.

            Finally, Strande, in discussing the incident involving her contacts with the family of the resident who believed that she was missing money from her purse, reiterates her version of the events, and argues in effect that she did nothing wrong, but was, instead, being targeted for discharge.

            The commissioner's findings are reasonably supported by the evidence, and the findings provide a basis for the commissioner to conclude that Strande engaged in employment misconduct in her acts of dishonesty and insubordination.

            Affirmed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] The revisor's office inadvertently substituted the term "ineligible for" for the term "disqualified from" in Minn. Stat. § 268.095, subds. 1, 4, 7, 8(a) (Supp. 2003).  See Minn. Stat. § 268.095, subds. 1, 4, 7, 8(a) (2002) (using term "disqualified from"); 2003 Minn. Laws 1st Spec. Sess. ch. 3, art. 2, § 11 (making other changes to Minn. Stat. § 268.095, subd. 1, but retaining term "disqualified from"); 2003 Minn. Laws 1st Spec. Sess. ch. 3, art. 2, § 20(j), (k) (directing revisor to change the term "disqualified from" to "ineligible for" only in Minn. Stat. § 268.095, subd. 12, and then to renumber to Minn. Stat. § 268.085, subd. 13b).