Carole L. Keys, Relator, vs. Bethesda Health & Housing, Respondent, Department of Employment and Economic Development, Respondent.

Carole L. Keys, Relator, vs. Bethesda Health & Housing, Respondent, Department of Employment and Economic Development, Respondent. A04-2029, Court of Appeals Unpublished, August 16, 2005.

This opinion will be unpublished and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

A04-2029

 

Carole L. Keys,

Relator,

 

vs.

 

Bethesda Health & Housing,

Respondent,

 

Department of Employment

and Economic Development,

Respondent.

 

Filed August 16, 2005

Affirmed Hudson, Judge

 

Department of Employment

and Economic Development

File No. 9377 04

 

Carole L. Keys, P.O. Box 208, Kerkhoven, Minnesota 56252-0208 (pro se relator)

 

Bethesda Health & Housing, Attention: Dennis Heritage, 901 Willmar Avenue Southeast, Willmar, Minnesota 56201-4604 (respondent employer)

 

Linda A. Holmes, Minnesota Department of Employment and Economic Development, First National Bank Building, 332 Minnesota Street, Suite E200, St. Paul, Minnesota 55101-1351 (for respondent Department)

 

            Considered and decided by Dietzen, Presiding Judge; Stoneburner, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

HUDSON, Judge

            Relator Carole Keys challenges the determination of the senior unemployment review judge (SURJ) that she was discharged for aggravated employment misconduct and, therefore, disqualified from receiving benefits.  Relator denies that the incidents she was terminated for occurred, and she disputes her co-workers' accounts of those incidents.  Because the SURJ's findings are reasonably supported by the evidence in the record, we affirm.

FACTS

            Respondent Bethesda Health & Housing terminated relator's employment at its nursing home by a letter dated April 30, 2004.  Respondent's letter of termination alleged that relator had twice treated patients roughly.  Relator was subsequently denied unemployment benefits.  She appealed this denial to an unemployment law judge (ULJ), and, on July 21, 2004, the ULJ conducted a telephonic hearing.

            Glenda Thomas, relator's co-worker, testified that relator mistreated a patient on April 21, 2004.  Thomas stated that on that day, she was working with relator and getting a patient up for breakfast.  Thomas testified that relator was yelling at the patient, "telling her that I come in your room every morning and you should know you're supposed to be [ready]."  Thomas stated that relator grabbed the patient "by her arm and yanked her arm up in the air."  After relator yanked on the patient's arm, Thomas testified that the patient "had a real hurt expression on her face" and said, "oh, that hurts."  Thomas also stated that once the patient was off of the bed and in the bathroom, relator "let the lift down too far" and "the handle part of the lift hit [the patient] in the front of her head."

            Becky Walkden, another co-worker, testified to the other alleged incident of patient mistreatment.  Walkden testified that relator pushed another patient's foot with her own foot, instead of using her hand.  Walkden stated that relator should have used her hand, but that she "didn't really think of it as an abusive situation at the time."  After the patient said that relator had hurt her, Walkden testified that relator gave a "nervous giggle."  Walkden also stated, in closing, her belief that relator "wasn't trying to hurt [the patient]."

            Anthony Ogdahl, Bethesda's chief administrator, testified that relator's actions were reported to the proper authorities under Minnesota's vulnerable-adult laws.

            Relator denied that she had hurt any of the patients under her care.  The ULJ subsequently denied her appeal and found that she had been discharged for aggravated employment misconduct.  Relator appealed that decision to a senior unemployment review judge (SURJ).  The SURJ agreed with the ULJ and found that relator had been discharged for aggravated employment misconduct.  This certiorari appeal follows.

D E C I S I O N

            This court reviews the decision of the senior unemployment review judge (SURJ) rather than that of the unemployment law judge (ULJ).[1]  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  Considerable deference is given to a decision of the SURJ.  Id.  We defer to the SURJ's findings of fact if they are reasonably supported by the evidence in the record.  Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).  And the findings of a SURJ will only be disturbed if the record could not reasonably tend to support them.  Schmidgall v. Filmtec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  

            Whether a former employee is disqualified from receiving unemployment benefits is a mixed question of law and fact.  Id.  The determination of whether an employee committed a particular act is a question of fact.  Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  Whether an act constitutes employment misconduct, however, is a legal question, which this court reviews de novo.  Id.

An employee who is discharged for employment misconduct or aggravated employment misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4 (Supp. 2003).  In addition to being disqualified from receiving unemployment benefits, an employee who is discharged for aggravated employment misconduct is subject to cancellation of the wage credits that she would have earned from that employment.  Minn. Stat. § 268.095, subd. 10(c) (2002).

Aggravated employment misconduct is defined as:

(1) the commission of any act, on the job or off the job, that would amount to a gross misdemeanor or felony if the act interfered with or adversely affected the employment; or

 

(2) for an employee of a facility as defined in section 626.5572, aggravated employment misconduct includes an act of patient or resident abuse, financial exploitation, or recurring or serious neglect, as defined in section 626.5572 and applicable rules.

Minn. Stat. § 268.095, subd. 6a (2002).  

Relator was "an employee of a facility" under the statute.  See Minn. Stat. § 626.5572, subd. 6 (2002) (defining "facility").  "Abuse" is defined by section 626.5572, in relevant part, as:

(b) Conduct which is not an accident or therapeutic conduct as defined in this section, which produces or could reasonably be expected to produce physical pain or injury or emotional distress including, but not limited to, the following:

 

(1)  hitting, slapping, kicking, pinching, biting, or corporal punishment of a vulnerable adult;

 

(2)  use of repeated or malicious oral, written, or gestured language toward a vulnerable adult or the treatment of a vulnerable adult which would be considered by a reasonable person to be disparaging, derogatory, humiliating, harassing, or threatening[.] 

 

Minn. Stat. § 626.5572, subd. 2(b) (2002).[2] 

            Relator denies that she hurt any of the patients under her care and therefore argues that she should receive unemployment benefits.  But here, the SURJ found that relator caused a resident of a facility (i.e., a resident of a nursing home) physical pain.  The SURJ held that relator's "yanking of the arm [of a patient] was not an accident and it was not therapeutic conduct," and "[t]he evidence shows that it did produce pain."  Thus, the SURJ concluded, "[relator's] conduct does constitute resident abuse [per Minn. Stat. § 268.095, subd. 6a], and she was discharged for aggravated employment misconduct . . . ."

            While we have some reservations as to whether relator's conduct rose to the level of aggravated misconduct versus regular employment misconduct, in keeping with our deference to the SURJ's factual findings that relator's action produced pain in a vulnerable adult and that "it was not therapeutic conduct," we affirm.  See Minn. Stat. § 626.5572, subd. 2(b) (defining "abuse"); see also Ress, 448 N.W.2d at 523 (we defer to the SURJ's findings of fact if they are reasonably supported by the evidence in the record).

            Affirmed.   

[1] The legislature substituted "senior unemployment review judge" for the representative of the commissioner, 2004 Minn. Laws ch. 183, § 71.

[2] An adult who is a resident or inpatient of a facility is considered a vulnerable adult.  Minn. Stat. § 626.5572, subd. 21 (2002).