Regina Tandan, Relator, vs. Summit Services, Respondent, Department of Employment and Economic Development, Respondent.

Regina Tandan, Relator, vs. Summit Services, Respondent, Department of Employment and Economic Development, Respondent. A05-2164, Court of Appeals Unpublished, June 27, 2006.

This opinion will be unpublished and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

A05-2164

 

Regina Tandan,

Relator,

 

vs.

 

Summit Services,

Respondent,

 

Department of Employment and

Economic Development,

Respondent.

 

Filed June 27, 2006

Affirmed
Klaphake, Judge

 

Department of Employment and Economic Development

File No. 81905

 

Regina Tandan, 115 East Avenue, Apartment 226, Mahtomedi, MN  55115 (pro se relator)

 

Summit Services, UCRC, Attn: Stuart Rubin/Carol Beachy, 790 Turnpike Street, Suite 202, North Andover, MA  01845 (respondent)

 

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

 

            Considered and decided by Stoneburner, Presiding Judge, Klaphake, Judge, and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Relator Regina Tanden challenges the decision of the senior unemployment review judge (review judge) that relator was discharged for misconduct and is therefore not entitled to benefits.  Because evidence sustains the factual findings on which that decision was based, we affirm.

D E C I S I O N

            Respondent Summit Services, a provider of laundry and housekeeping services to residential facilities, discharged relator, a laundry aide in a facility for elderly residents, on December 13, 2004.  Relator applied for benefits, and a department adjudicator determined that:

            The employer states [relator] was discharged for a second incident of entering a resident's room when the door was closed and the "do not enter" light was on.

 

            Based on the fact that [relator] was new at making deliveries, she will be given the benefit of the doubt regarding this issue.  Intentional misconduct is not found.

 

            Respondent appealed.  After telephone hearings on March 16, April 14, and May 12, 2005, an unemployment law judge (ULJ) found that:

            [Relator] knew that the policy required her to knock on resident[s'] rooms, and that the purpose behind this policy was resident[s'] right to privacy.  Her conduct violated these rights, as articulated in the knocking policy.  [Relator's] conduct constituted employment misconduct, under the statutory definition.

 

            Relator appealed, and a review judge also decided that she had been discharged for misconduct.  

            Misconduct includes "any intentional, negligent, or indifferent conduct, on the job or off the job . . . that displays clearly a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee."  Minn. Stat. § 268.095, subd. 6(a) (2004).  This definition is exclusive; no other definition applies.  Minn. Stat. § 268.095, subd. 6(e) (2004). Whether an employee's acts constitute misconduct is a question of law that this court reviews de novo.  Schmidgall v. Filmtec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  But factual findings are reviewed in the light most favorable to the decision and will not be disturbed if there is evidence that "reasonably tends to sustain" them.  Id.

            The review judge found that "[relator] was discharged because she disregarded the directives to knock and wait for acknowledgement before entering a resident's room. . . ." The transcript sustains the review judge's finding.  Respondent's personnel manager testified that respondent had a policy of discharging employees who received three warnings within a 12-month period.  Relator received one warning for an incident on November 18, when she left a laundry cart in the middle of the hall in violation of a safety policy, a second warning for an incident on November 30, when she walked into a resident's room without knocking in violation of the residents' right to privacy policy, and a third warning for an incident on December 9, when she again walked into a resident's room without knocking after having been warned not to do so.

            Relator's supervisor testified that after the cart incident, she spoke to relator, who agreed to put the cart against the wall in the future.  About the second incident, the supervisor testified that she "received a phone call from nurse's aides on second floor stating that they had asked [relator] to knock on the door many times and [relator] was still just coming in the rooms when they were taking care of the residents . . . ."  The supervisor testified that she had received complaints in the past about relator's failure to knock before entering a resident's room, but had not written up an official warning.  This time, she told relator "that she needed to stop doing these things or she would get a third warning and there could be a chance of termination."  About the third incident, the supervisor testified that the nurse's aide called on December 9 to say that relator had again entered a resident's room without knocking. 

            The nurse's aide who was in the resident's room when relator walked in testified that "there's been multiple times that [relator] has not knocked, . . . but come in while I'm giving care to the residents."  When asked how often relator had entered a room in which she was caring for a resident, the nurse's aide answered, "In about a nine-month period, she did that about five to ten times."  The nurse's aide testified that she had written up the incidents on November 30 and December 9 and that "every time I had ever had a run-in with [relator] about coming in on me . . . [s]he always agreed, okay, I'm sorry, and . . . the next day it would just happen again . . . ."  She also testified that the resident's door was closed when relator entered the room on both November 30 and December 9 and said, "[Relator] was always opening the door with her other hand, holding laundry with one hand and opening the door saying knock-knock."

            Relator's testimony opposed the testimony of these witnesses:  she said she had never entered a room without knocking.  But factual findings are reviewed in the light most favorable to the decision.  Id.  Because there is ample evidence to sustain the findings, there is no basis to disturb them.  See id.

             Refusing to comply with an employer's reasonable policy can constitute misconduct.  Bray v. Dogs & Cats Ltd. (1997), 679 N.W.2d 182, 184 (Minn. App. 2004).  Respondent's policy respecting residents' right to privacy by requiring employees to knock before entering rooms was reasonable, and relator repeatedly refused to comply with it.  Her conduct, whether intentional, negligent, or indifferent, displayed clearly a serious violation of the standard of behavior her employer had the right to reasonably expect and was misconduct within the meaning of Minn. Stat. § 268.095, subd. 6(a). 

            In her brief, relator objects to the admission of the telephone testimony of one witness.  The admission of testimony is within the discretion of the ULJ.  See Kroning v. State Farm Augo Ins. Co., 567 N.W.2d 42, 45-46 (Minn. 1997) (absent erroneous interpretation of the law, the question of whether to admit evidence is within district court's discretion).

            At the third telephone hearing, each party introduced new witnesses without having informed the other party:  relator introduced two former co-workers, and the employer introduced the nurse's aide who had been caring for residents in a room when relator walked in.  In her brief, relator objects to the admission of the testimony of the nurse's aide because she did not appear until the third hearing and relator did not have notice of her appearance. 

            At the beginning of the hearing, relator's representative said, "I was not informed that [the nurse's aide] was going to be a witness."  The ULJ asked relator's representative if he had requested the employer to send a list of witnesses.  He answered, "No I did not."  The ULJ then said, "Well, [an employer is] not normally under an obligation to provide that unless you specifically request it of her."  Relator's representative answered, "Okay." In fact, the record contains a copy of a letter from relator to the employer saying "kindly, please let me have the name(s) of your attorney/agent and witnesses."  But in light of relator's representative's testimony that a list of witnesses had not been requested, the ULJ's decision to admit the new witnesses was not an abuse of discretion.

            The decision of the review judge is affirmed.

            Affirmed.