Patricia Carter, Relator, vs. Lyngblomsten Care Center, Inc., Respondent, Department of Employment and Economic Development, Respondent.

Patricia Carter, Relator, vs. Lyngblomsten Care Center, Inc., Respondent, Department of Employment and Economic Development, Respondent. A05-91, Court of Appeals Unpublished, September 13, 2005.

This opinion will be unpublished and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

A05-91

 

Patricia Carter,

Relator,

 

vs.

 

Lyngblomsten Care Center, Inc.,

Respondent,

 

Department of Employment and Economic Development,

Respondent.

 

Filed September 13, 2005

Affirmed

Toussaint, Chief Judge

 

Department of Employment and Economic Development

 

Patricia Carter, 1315 A Natchez Trace, Marrietta, GA 30008 (pro se relator)

 

Lyngblomsten Care Center, Inc., 1415 Almond Street, St. Paul, MN 55108 (respondent)

 

Linda Alison Holmes, Department of Employment and Economic Security, E200 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101 (for respondent DEED)

 

            Considered and decided by Toussaint, Chief Judge; Hudson, Judge; and Wright, Judge.

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

             Relator Patricia Carter challenges the determination of a senior unemployment review judge's (SURJ) that relator was discharged from respondent Lyngblomsten Care Center, Inc. for misconduct.  Because the SURJ's determination that relator committed misconduct is supported by the evidence, and not contrary to the statutory mandate, we affirm.

D E C I S I O N

An employee who is discharged for employment misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4(1) (Supp. 2003). 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, conduct an average reasonable employee would have engaged in under the circumstances . . . are not employment misconduct."  Id.

The SURJ's determination that an employee is disqualified for reasons of misconduct is a mixed question of fact and law.  Colburn v. Pine Portage Madden Bros., 346 N.W.2d 159, 161 (Minn. 1984).  We review factual findings in the light most favorable to the SURJ's decision and will not disturb them as long as there is evidence that reasonably tends to sustain them.  Schmidgall v. Filmtec Corp., 644 N.W.2d 801, 804 (Minn. 2002). Whether a particular act constitutes disqualifying misconduct is a question of law, which this court reviews de novo.  Id.

Relator was employed by respondent as a certified nursing assistant from November 1997 until her employment was terminated on July 14, 2004.  In June and July 2004, relator received three "write-ups" for improper phone use, disrespectful response to a supervisor's instruction to manage time more effectively, and failure to record residents' weight.  Relator was asked to meet with respondent's human relations director and director of nursing on July 13, 2004.  The directors intended to talk to relator about the incidents, her behavior, and their concerns.  Relator refused to directly address these incidents or her behavior; instead she complained of the working conditions and her supervisors.  The directors suspended her with pay for the rest of the day, and, when relator returned the next day, she was discharged due to her conduct at the meeting.

Relator admits in her brief to this court that she did not limit her comments to the subject that the directors thought was pertinent, but she asserts that she was not "verbally abusive."  The directors stated that her conduct prevented discussion of her disciplinary issues. 

Respondent reasonably expected relator to participate in her disciplinary meeting in a constructive way.  There is no evidence or allegation of wrongdoing in respondent's attempt to address the disciplinary issues.  Relator had notice of her unacceptable conduct in the form of recent "write-ups," instructions from supervisors, and the "disciplinary action" that she refused to sign.  Her refusal to discuss these specific incidents was serious because it followed her failure to comply with other reasonable standards set by the employer.  Her conduct does not fall within the statutory exemptions, including "conduct an average reasonable employee would have engaged in under the circumstances."  See Minn. Stat. § 268.095, subd. 6(a).

The SURJ's determination that appellant committed misconduct is supported by the evidence.

            Affirmed.