Lois C. Terry, Relator, vs. Twin City Linnea Home, Respondent, Department of Employment and Economic Development, Respondent.

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Lois C. Terry, Relator, vs. Twin City Linnea Home, Respondent, Department of Employment and Economic Development, Respondent. A05-264, Court of Appeals Unpublished, October 11, 2005.

This opinion will be unpublished and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

A05-264

 

Lois C. Terry,

Relator,

 

vs.

 

Twin City Linnea Home,

Respondent,

 

Department of Employment and Economic Development,

Respondent.

 

Filed October 11, 2005

Affirmed

Toussaint, Chief Judge

 

Department of Employment and Economic Development

Agency File No. 14594 04

 

Lois C. Terry, 21707 Humber Street NE, Wyoming, MN  55092-9488 (pro se relator)

 

Corey J. Ayling, McGrann Shea Anderson Carnival Straughn & Lamb, Chartered, U.S. Bancorp Center, 800 Nicollet Mall, Suite 2600, Minneapolis, MN  55402-7035 (for respondent Twin City Linnea Home)

 

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

 

 

            Considered and decided by Toussaint, Chief Judge; Randall, Judge; and Willis, Judge.


U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

Relator Lois C. Terry challenges the decision by the senior unemployment review judge (SURJ) that she was disqualified from receiving unemployment benefits because she had been discharged for misconduct.  Because we conclude that the evidence reasonably supports the findings, and that those findings support the determination that relator was discharged for misconduct, we affirm.

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).  Findings of fact will not be reversed if they are reasonably supported by the evidence, but whether conduct constitutes misconduct as a matter of law is reviewed de novo.  Id.

            Employment misconduct is defined as "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)(1) (Supp. 2003).

            The SURJ found that relator was discharged in July 2004 for engaging in an oral and physical altercation in the workplace after a September 2003 warning for being loud and abrasive in the workplace and March 2004 counseling for disrespectful behavior in the workplace.  The SURJ determined that this evinced an intentional disregard of the standards of behavior that the employer had the right to reasonably expect of an employee and substantial lack of concern for her employment.

Relator first argues that the SURJ's findings were based on falsified documents and that, contrary to the findings, she had not been counseled prior to the incident that led to her discharge.  The finding that relator had been given a September 2003 warning was supported by a report describing complaints about relator's behavior as well as corrective action relator was to take.  The finding that relator had been counseled in March 2004 about another incident was supported by testimony by relator's supervisor as well as a description in a progress report.  The findings are supported by substantial evidence presented at the hearing, and this court has no basis for reversing them.

            Relator next argues that the decision by the unemployment-law judge (ULJ), who determined that relator had not committed misconduct, should be credited.  This court, however, reviews the decision of the SURJ rather than the ULJ.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).[1]

            The SURJ's order determining that relator was disqualified from receiving unemployment benefits because she had been discharged for misconduct is affirmed.

            Affirmed.


[1]  Legislative amendments to the unemployment benefits statute codified in 2004 substituted the term "senior unemployment review judge" for the commissioner's representative.  2004 Minn. Laws ch. 183, § 71.

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