This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-02-1359

 

Catherine E. Strickland,

Relator,

 

vs.

 

Martin Luther Manor,

Respondent,

 

Commissioner of Economic Security,

Respondent.

 

Filed ≠≠≠March 18, 2003

Affirmed

Harten, Judge

 

Department of Economic Security

Agency File No. 1244101

 

Mark A. Greenman, Ruth Y. Ostrom, Greenman & Ostrom, 270 Grain Exchange North, 301 Fourth Avenue South, Minneapolis, MN 55415; and

 

Michael L. Lander, Otten & Associates, Suite 270, 301 Fourth Avenue South, Minneapolis, MN 55415 (for relator)

 

Tamika Ragland Nordstrom, Ranga S. Nutakki, Briggs & Morgan, P.A., 2400 IDS Center, 80 South Sixth Street, Minneapolis, MN 55402 (for respondent-Martin Luther Manor)

 

Lee B. Nelson, Department of Economic Security, 390 North Robert Street, St. Paul, MN 55101 (for respondent-Commissioner of Economic Security)

 

††††††††††† Considered and decided by Harten, Presiding Judge, Peterson, Judge, and Halbrooks, Judge.

U N P U B L I S H E D†† O P I N I O N

 

HARTEN, Judge

 

††††††††††† The commissionerís representative determined that relator was discharged for misconduct and therefore disqualified from receiving unemployment benefits.† Relator contends that she did not commit misconduct and that she was unlawfully discharged in retaliation for reporting abuse of a vulnerable adult in violation of Minn. Stat. ß 626.557, subd. 17(c)(1) (2002).† Because we conclude both that evidence supports the findings of fact underlying the commissionerís determination that relator committed misconduct and that Minn. Stat. ß 626.557, subd. 17(c)(1) (presumed retaliation) does not preclude relatorís disqualification, we† affirm.

FACTS

††††††††††† Relator Catherine Strickland, a licensed practical nurse (LPN) worked for respondent Martin Luther Manor (MLM), a long-term care facility, from April 2001 to September 2001.† In late July or early August, MLM decided to eliminate relatorís ďhybridĒ shift position, from 10:30 a.m. to 7:30 p.m., and asked relator to commit to a specific schedule.† Relator did not do so, despite repeated requests.

On 16 August, relator became aware that another LPN whom MLM had hired from a temporary pool had failed to follow MLM procedures and provided inappropriate care to a resident that resulted in the resident requiring emergency surgery.† Relator advised her supervisor of the incident by telephoning the supervisor at home.† The next day, the supervisor reported the incident to the director of nursing, and MLM began an internal investigation of the incident.† No one filed a report with the state pursuant to the Minnesota Vulnerable Adult Act.

In late August, relator met with the director of nursing.† At this meeting, relator did not mention the inappropriate care incident, but discussed her own work schedule.† On 5 September, relator complained to the director of nursing that another LPN had been hired to replace relator.† The director explained that the new LPN had been hired to fill a time slot relator had not indicated that she wanted and that the relator still had options for either the day shift or the evening shift.† Relator nevertheless continued to be upset.

At the end of the day on 5 September, relatorís supervisor, the nursing director, and the human resources director met with relator to resolve relatorís work schedule situation.† All three testified that relator again refused to commit herself to a schedule and that she walked out of the meeting.†

When the supervisor returned to the nursing area, she found that relator was creating a disturbance by telling others that MLM wanted to get rid of her.† Relator then went to the office of the MLM administrator, where she began maligning the human resources director, calling him a snake and a liar, and using profanity.† The administrator told relator it was time for her to leave, and the human resources director escorted her out of the building.†

The next day relator called the MLM administrator.† The assistant administrator returned her call, asked her not to call MLM again, and said that he would deliver her final paycheck to her home, which he did.†

Relator then telephoned the Minnesota Department of Health to find out if the inappropriate care incident had been reported.† She learned that no report had been made.† A few weeks later, the Department of Health investigated, determined that patient neglect had occurred, and cited MLM for violation of the relevant rules.

Relator applied for unemployment benefits.† A department adjudicator determined that she was disqualified because she had quit her employment.† She challenged this determination, and a hearing was scheduled before an unemployment law judge.

At the hearing, relator and her husband testified that relator had not engaged in any inappropriate behavior and had been terminated; the MLM director of nursing, the MLM director of human resources, and relatorís supervisor testified both that she had engaged in inappropriate behavior and that she had quit.† The unemployment law judge determined that relator was disqualified because she had been terminated for misconduct.† Relator appealed; the commissionerís representative affirmed that determination.†

On appeal to this court, relator challenges her disqualification from benefits, arguing that the findings of fact underlying the conclusion that she committed misconduct lack evidentiary support and that Minn. Stat. ß 626.557, subd. 17(c)(1) (2002), precludes her disqualification.

D E C I S I O N

1.†††††††† Findings of Fact

††††††††††† On appeal, a reviewing court must examine the decision of the commissionerís representative, rather than that of the unemployment insurance judge.† Kalberg v. Park & Recreation Bd., 563 N.W.2d 275, 276 (Minn. App. 1997).† The commissionerís representativeís determination that an employee is disqualified from receiving benefits for reasons of misconduct is a mixed question of law and fact.† Colburn v. Pine Portage Madden Bros., Inc., 346 N.W.2d 159, 161 (Minn. 1984).† A reviewing court will affirm findings if they are supported by the evidence.† Id.†

The commissionerís representative found that:

[Relator], at the September 5, 2001, meeting, swore at the human resources director, who was at the meeting, and left the office stating she was out of there and she was not going to take it any more.

 

[Relator] then went to the administratorís office and complained about the human resources director during that meeting.† The human resources director entered the administratorís office and [relator] yelled insults at the human resources director, calling him a snake.† As a result of the agitation and insults, [relator] was asked to leave and was escorted out of the building.† As she was leaving, she continued to hurl insults at the human resources director.

 

This finding is supported by evidence; both the human resources director and relatorís supervisor testified accordingly.

††††††††††† The human resources director testified that, in relatorís conversation with MLMís administrator,† ďI remember her referring to me as a snake * * * [and saying] that we were screwing her over and all that other kind of stuff * * * .Ē† Relatorís supervisor testified that, at the end of their meeting

††††††††††† [Relator] stood up and said Iíve had it with you, I quit, Iím out of here, thanks for [obscenity] up my life, and walked out the door.

 

* * * *

†††††††††††

* * * I went back to the nursing station and another nurse came up to me and said [relatorís] running around telling everybody that we hired [a new nurse] to get rid of her.† And I immediately went to [the human resources director] and said [relator is] still in the building; you need to come down here.

 

This testimony supports the commissionerís representativeís findings.

2.†††††††† Presumed Retaliation Pursuant to Minn. Stat. ß 626.557, subd. 17(c)(1)

††††††††††† Relator argues that the commissionerís representative violated Minn. Stat. ß 626.557, subd. 17(c)(1) (2002), which establishes a rebuttable presumption that any adverse action against an employee within 90 days of a report under the Vulnerable Adult Act is retaliatory.† Relator was asked when she contacted the state to report the possible abuse or neglect.† She replied, ďIt was like in the beginning of September, it was like right after I was terminated I called [the health department] to find out if in fact [MLM] reported it * * * .Ē† Therefore, relatorís termination could not have been a retaliatory response to her report of abuse because she was terminated before she made the report.† See, e.g., Cannon v. Habilitative Servs., Inc., 544 N.W.2d 790, 791 (Minn. App. 1996) (alleged reports of abuse took place during employment and prior to allegedly retaliatory discharge), review denied (Minn. 21 May 1996).

††††††††††† We conclude that the commissionerís representativeís determination that relator was discharged for misconduct is based on findings supported by the evidence and that relatorís disqualification from benefits does not violate Minn. Stat. ß 626.557, subd. 17(c).

††††††††††† Affirmed.