LeaAnn Grivna, Relator, vs. Riverside Family Dental, P.A., Respondent, Commissioner of Employment and Economic Development, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-265

 

 

LeaAnn Grivna,

Relator,

 

vs.

 

Riverside Family Dental, P.A.,

Respondent,

 

Commissioner of Employment

and Economic Development,

Respondent.

 

Filed September 14, 2004

Reversed Hudson, Judge

 

Department of Employment

and Economic Development

File No. 17217 03

 

 

Edward (Ted) P. Sheu, Barna, Guzy & Steffen, Ltd., 400 Northtown Financial Plaza, 200 Coon Rapids Boulevard, Minneapolis, Minnesota 55433 (for relator)

 

Michael P. Haag, Haag Law Offices, P.A., 2140 Fourth Avenue North, Anoka Minnesota 55303 (for respondent employer)

 

Lee B. Nelson, Linda A. Holmes, Minnesota Department of Employment and Economic Development, 390 Robert Street North, St. Paul, Minnesota 55101 (for respondent commissioner)

 

            Considered and decided by Kalitowski, Presiding Judge; Klaphake, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

HUDSON, Judge

In this certiorari appeal, relator seeks reversal of the commissioner's representative's decision that she was terminated for employment misconduct.  Because the alleged misconduct stemmed from a single, isolated incident that did not have a significant adverse impact on the employer, we reverse.

FACTS

Relator Leann Grivna (Grivna) worked as a dental assistant for respondent Riverside Family Dental P.A. (Riverside) from June 1993 through October 6, 2003.  Dr. Kamal Fakhreddine is the president and owner of Riverside.

            On Friday, September 19, 2003, Grivna had surgery for breast cancer.  Grivna expected to miss work for approximately a week.  On Monday, September 22, Grivna informed Riverside that she would come back to work on Wednesday and Thursday of that week.  Fakhreddine advised Grivna to take the entire week off to recuperate and to return to work the following Monday, September 29.  Fakhreddine did not offer to pay Grivna for the two days she requested to work, nor did Grivna ask to be paid for these two days.  Fakhreddine told Grivna he had a temporary employee who could finish the week.  The temporary employee was covered by a day-to-day contract with the employer.

            On Monday, September 29, 2003, Grivna returned to work.  When Grivna received her paycheck, she noticed that she was not paid for the two days Fakhreddine had advised her to stay home, even though she offered to return to work.  Grivna was upset that her paycheck did not include the days she missed.

On Monday, October 6, 2003, Grivna met with Fakhreddine to discuss the paycheck.  Grivna told Fakhreddine she should be paid for the two days that he encouraged her to stay home from work.  Fakhreddine told Grivna that he could not afford to pay the temporary agency $1,100 for the week and then pay Grivna for the days she did not work on top of that.  Grivna told Fakhreddine that he only gave her Wednesday and Thursday off because he was already committed to pay the temporary agency for the week and did not want to pay her as well.  Grivna said she was going to call the agency to investigate whether Fakhreddine had a week-long contract with the agency.  Fakhreddine told her that if she called the agency to investigate, he would terminate her.  Grivna said she could do whatever she wanted as long as it was on her own time.  Fakhreddine again stated that if she called the agency she would be fired.  Grivna responded by asking Fakhreddine if she was fired, and he said she was fired.  Grivna left and told other employees that she had just been fired.

A department adjudicator initially determined that Grivna quit her employment with Riverside for other than a good reason caused by the employer and was disqualified from receiving unemployment benefits.  Grivna appealed, and a department unemployment law judge conducted a de novo hearing and modified the initial determination, finding that Riverside discharged Grivna for employment misconduct.  Grivna appealed, and a representative of the Commissioner of the Department of Employment and Economic Development (commissioner's representative) found that Grivna was disqualified from receiving unemployment benefits because Riverside discharged her for employment misconduct.  Grivna filed a writ of certiorari with this court. 

D E C I S I O N

When reviewing the Minnesota Department of Employment and Economic Development's determination regarding an employee's qualifications for unemployment benefits, we review the commissioner's representative's findings rather than the unemployment law judge's findings.   Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  We have a narrow standard of review that requires us to view the commissioner's representative's findings in the light most favorable to the decision; the decision is not disturbed if the evidence reasonably tends to sustain the commissioner's representative's findings.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  Further, this court defers to the commissioner's representative's ability to weigh conflicting evidence and to make credibility determinations about proffered testimony.  Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995); see also Jenson v. Dep't of Econ. Sec., 617 N.W.2d 627, 631 (Minn. App. 2000), review denied (Minn. Dec. 20, 2000).

Whether an employee is disqualified from receiving unemployment compensation benefits because the employee was discharged for misconduct is a mixed question of law and facts.  Colburn v. Pine Portage Madden Bros., Inc., 346 N.W.2d 159, 161 (Minn. 1984).  The commissioner's representative determines the fact question: whether the employee committed the alleged acts of misconduct.  Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  We review de novo whether the employee's actions constituted employment misconduct and disqualified the employee from receiving unemployment benefits under the statute.  Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).

A person 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)(1), (2) (Supp. 2003).[2]  But "a single incident that does not have a significant adverse impact on the employer . . . [is] not employment misconduct."  Minn. Stat. § 268.095, subd. 6(a) (Supp. 2003).

Grivna argues that her termination arose from a single, isolated incident in more than a decade of exemplary employment with Riverside.  Grivna contends that Riverside's business was not affected by the argument because no patients or employees heard it.  Respondent commissioner contends that Grivna's intentional conduct seriously violated the standards of behavior Riverside had a right to expect of its employees.  Respondent commissioner also argues that Grivna's behavior does not qualify as a single incident that does not have a significant adverse impact on the employer.  Respondent Riverside contends that Grivna's behavior was insubordinate, indifferent to the wishes of her employer, against the best interests of her employer, and without regard to her employment, which qualifies as misconduct.

In deciding that Grivna is disqualified from unemployment benefits, the commissioner's representative found that Grivna "directly questioned [Fakhreddine's] veracity," which "was intentional conduct that disregards the standards of behavior the employer had a right to expect."  The commissioner's representative noted that an "employer has the right to expect that its employees will not question his truthfulness to the point of threatening to look for proof of his statements."

Although the commissioner's representative did not address the "single-incident" exception to the misconduct statute, it is clear that this is the type of case the exception was designed to address.  Although we see no basis to disturb the commissioner's representative's findings, we conclude that this case arose from a single incident which did not have a significant adverse impact on the employer; therefore, we conclude that Grivna's actions were not employment misconduct.  Minn. Stat. § 268.095, subd. 6(a) (Supp. 2003). 

Both parties agree that the incident stemmed from one heated conversation between Grivna and Fakhreddine.  The record shows that Grivna had worked for Riverside for more than ten years and had an exemplary work history.  The record also reveals that Fakhreddine and Grivna were able to resolve issues in the past by discussing the problem and coming to an amiable conclusion.  It is clear that this episode stemmed from a single incident.  Minn. Stat. § 268.095, subd. 6(a) (Supp. 2003).

In addition, the single incident did not have "a significant adverse impact on the employer."  Minn. Stat. § 268.095, subd. 6(a) (Supp. 2003).  The record shows that the workplace was not disrupted due to the conversation because it appears that no Riverside employees or Riverside patients heard the conversation between Grivna and Fakhreddine.  The record also shows that Grivna did not call the temporary agency.  Furthermore, even if Grivna had called the agency, it is unlikely that the phone call would have had a significant adverse impact on the employer.  Grivna simply intended to ask the temporary agency whether Fakhreddine had a week-long contract with the agency.  Because no one heard the conversation, and because Grivna did not call the temporary agency, the single incident did not have a significant adverse impact on Fakhreddine or Riverside.  Minn. Stat. § 268.095, subd. 6(a) (Supp. 2003).  We reverse.

Reversed.

 

[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 the 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).

 

[2] The definition of employment misconduct was amended, effective August 1, 2003.  This court has held that the amended definition applies to cases in which the employee was discharged after August 1, 2003.  Bray v. Dogs & Cats Ltd., 679 N.W.2d 182, 186 (Minn. App. 2004). Because Grivna was discharged on October 6, 2003, after the statute was amended, the amended definition applies to this case.