This opinion will be unpublished and

may not be cited except as provided by

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






Diane Hall,





Park Nicollet Clinic,



Commissioner of Employment and Economic Development,



Filed January 27, 2004


Halbrooks, Judge



Department of Employment and Economic Development

File No. 14377 02


John A. Fabian, Nichols Kaster & Anderson PLLP, 4644 IDS Center, 80 South 8th Street, Minneapolis, MN 55402 (for relator)


Brian T. Benkstein, Felhaber, Larson, Fenlon & Vogt, P.A., 220 South 6th Street, Suite 2200, Minneapolis, MN 55402 (for respondent Park Nicollet Clinic)


Lee B. Nelson, Philip B. Byrne, Department of Employment and Economic Development, 390 Robert Street North, St. Paul, MN 55101 (for respondent commissioner)



            Considered and decided by Halbrooks, Presiding Judge, Kalitowski, Judge, and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N


            Relator challenges the commissioner’s representative’s decision that she was discharged for misconduct and is, therefore, disqualified from receiving unemployment benefits.  Because the record supports the commissioner’s representative’s conclusion, we affirm.


            Relator Diane Hall was employed as an environmental aide for respondent Park Nicollet Clinic from December 7, 1992, until her termination on August 16, 2002.  During this time, Hall received positive feedback about her performance on several occasions.  But in May 2002, she was reprimanded after arguing with a coworker in a public area of the hospital over a piece of equipment.  Park Nicollet issued a written action plan directing Hall to (1) avoid future arguments with coworkers, (2) communicate in a business-like tone while remaining “professional and respectful at all times,” and (3) review and abide by the policies on harassment and offensive behavior and violence in the workplace.  Hall was warned that failure to meet these expectations could result in her termination.

            Approximately one month later, Park Nicollet received a complaint from a patient, Erma Jefferson, that Hall had treated her inappropriately.  Jefferson is a vulnerable adult who was recovering from a stroke.  Jefferson stated that on June 5, 2002, she had planned to take a wheelchair to her home evaluation, but Hall refused to let her.  According to Jefferson, Hall “went off” on her, “interrogated [her] like [she] was a criminal,” and “got mad at [her] . . . really angry.”  Jefferson also stated that during the altercation, she needed to use the restroom, but Hall ignored her request and “kept on” until Jefferson was in tears.  When Hall finally helped her to the restroom, Jefferson stated that Hall whispered into her ear, “Watch out, they treat black patients differently from white patients. . . . They’ll put you in a nursing home.”  Jefferson described Hall’s behavior as “cruel,” but stated that she did not want her fired because she forgave Hall and wanted Hall to learn from the experience. 

            As a result of the complaint, Park Nicollet began an investigation.  A nursing assistant who was present during the altercation stated that Hall and Jefferson were in a “power struggle” and that Hall would not back down.  The nursing assistant also stated that Jefferson was “visibly upset, was crying and was rapidly declining emotionally,” but Hall continued to prevent her from taking the wheelchair and did not assist her to the restroom until Jefferson stated that she was going to “pee in her pants.”  Additionally, Tanya Hough, a physical-therapy supervisor, reported that Jefferson was “visibly upset” when they met in the waiting area after the incident, and that it took her approximately ten minutes to calm Jefferson down.  According to Hough, Jefferson said that Hall refused to let her take a wheelchair home and stated that if Jefferson could not walk on her own, she would have to go to a nursing home.  A registered nurse on the unit also reported that after the incident, Hall admitted that she was “out of line.” 

Hall was notified of the complaint against her on July 31, 2002.  Park Nicollet determined that Hall’s conduct constituted employment misconduct because she had acted inappropriately, outside the scope of her job, and in a manner that had a negative impact on a patient’s care.  Hall was terminated on August 16, 2002. 

The Minnesota Department of Employment and Economic Development (the department) determined that Hall was not eligible to receive benefits.  Hall appealed this determination to an unemployment law judge.  At the hearing, Hall denied that she refused to assist Jefferson to the restroom, that Jefferson told her that she was about to “pee in her pants,” or that she refused to allow Jefferson to take her wheelchair to her home evaluation.  Hall stated that she had discussed the policy for wheelchair use with the nursing assistant, not the patient, but that Jefferson misunderstood and got upset.  Hall explained that Jefferson was making no effort to help herself onto the commode, and so to encourage her, Hall said, “Honey, if you don’t push yourself, you may end up in a nursing home.”  Hall denied any intent to scare Jefferson.    

The unemployment law judge found that Hall’s conduct constituted misconduct because she “violated the company’s policy . . . and reveal[ed] an indifferent conduct on the job that demonstrated a substantial lack of concern for the employment.”[1]  Hall appealed to the commissioner’s representative, who affirmed the unemployment law judge’s decision.  While determining that Hall’s conduct did not amount to aggravated employment misconduct, the commissioner’s representative concluded that “the preponderance of the evidence shows that [Hall] was discharged . . . due to employment misconduct.”  This appeal follows.


            On appeal, this court accords particular deference to the decision of the commissioner’s representative.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  The commissioner’s representative’s determination that an employee is disqualified for misconduct involves a mixed question of fact and law.  Colburn v. Pine Portage Madden Bros., Inc., 346 N.W.2d 159, 161 (Minn. 1984).  Whether an employee committed the specific act or acts alleged to be misconduct is a fact question.  Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  We review the commissioner’s representative’s factual findings in the light most favorable to the decision and will not disturb them if the record reasonably tends to sustain them.  Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996).  But whether an employee’s acts constitute misconduct is a question of law, which we review de novo.  Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989). 

            Here, the record supports the commissioner’s representative’s findings.  The commissioner’s representative found that Hall argued with a patient over a wheelchair and told the patient that if she did not push herself, she would end up in a nursing home.  Hall admits to telling Jefferson, “if you don’t push yourself, you may end up in a nursing home.”  The commissioner’s representative also found that, despite Hall’s intentions, this statement “greatly upset the patient” and Hall “should have known better.”  The commissioner’s representative concluded that this conduct was both “inappropriate and contrary to the [May 2002] warning.” 

The record also supports the conclusion that Hall’s conduct constituted employment misconduct as a matter of law.  An employee who is discharged for misconduct is disqualified from receiving unemployment-compensation benefits.  Minn. Stat. § 268.095, subd. 4(1) (2002).  Minnesota law defines employment misconduct as follows:

(1) any intentional conduct, on the job or off the job, that disregards the standards of behavior that an employer has the right to expect of the employee or disregards the employee’s duties and obligations to the employer; or


(2) negligent or indifferent conduct, on the job or off the job, that demonstrates a substantial lack of concern for the employment.


Minn. Stat. § 268.095, subd. 6(a) (2002).  Although the unemployment law judge found employment misconduct under subdivision 6(a)(2), the commissioner’s representative’s decision suggests a determination of misconduct under subdivision 6(a)(1).  We review the decision of the commissioner’s representative, not that of the unemployment law judge.  Tuff, 526 N.W.2d at 51.       

The Minnesota Supreme Court has articulated a two-prong test to determine whether an employee’s actions constitute employment misconduct under Minn. Stat. § 268.095, subd. 6(a)(1).  Houston v. Int’l Data Transfer Corp., 645 N.W.2d 144, 149 (Minn. 2002).  The employee’s conduct must “(1) be intentional and (2) disregard standards of behavior the employer has a right to expect or the employee’s duties and obligations to the employer.”  Id.  Under the first prong, intentional conduct requires a “deliberate” act that is “not accidental.”  Id.  Under the second prong, the term “disregard” includes “intent that is separate and distinct from the intent to engage in the conduct in question.”  Id. at 150.  Therefore, to satisfy the Houston test, the employee must have “not only engaged in intentional conduct,” but must have also evidenced an intent to “ignore or pay no attention to his or her duties and obligations or the standards of behavior the employer has a right to expect.”  Id

We conclude that Hall’s conduct satisfies both requirements.  Under the first prong, the evidence shows that Hall’s conduct was intentional.  Hall admits to deliberately telling Jefferson that she might end up in a nursing home as a way to “encourage” the patient.  Hall also admits to discussing Jefferson’s wheelchair with the nursing assistant in a conscious attempt to comply with clinic policy.  Regardless of Hall’s motive, there was nothing “accidental” about her conduct.  Therefore, the first prong of the Houston test is satisfied.

Under the secondprong, the evidence also shows that Hall intended to disregard the standards of behavior her employer had a right to expect.  In determining an employer’s standards of behavior, this court looks to the “employer’s policies, rules, or reasonable requests.”  Montgomery v. F & M Marquette Nat’l Bank, 384 N.W.2d 602, 604 (Minn. App. 1986), review denied (Minn. June 13, 1986).  An employee commits misconduct when she intentionally violates a reasonable policy or fails to follow an employer’s directive.  Schmidgall v. Filmtec Corp., 644 N.W.2d 801, 806 (Minn. 2002); McGowan v. Executive Express Trans. Enters., Inc., 420 N.W.2d 592, 595-96 (Minn. 1988).  A deliberate action in contravention of an employer’s warning is also misconduct.  See Schmidgall, 644 N.W.2d at 806-07 (finding misconduct where employee failed to report injury during same shift after counseling and two written warnings by employer); Ideker v. LaCrescent Nursing Center, Inc., 296 Minn. 240, 241, 207 N.W.2d 713, 714 (1973) (finding misconduct where nurse’s aid, knowing that use of harsh language could result in her termination, used “extremely hostile” language on vulnerable patient on two separate occasions).  When the misconduct is deliberate and intentional, a single incident is sufficient to disqualify an employee from receiving unemployment benefits.  Schmidgall, 644 N.W.2d at 806; Ress, 448 N.W.2d at 524. 

Here, Park Nicollet’s standards were both reasonable and known by Hall.  After her May 2002 confrontation, Hall was directed to review the company’s policies and to communicate in a respectful and professional tone.  Hall was warned that failure to meet these expectations could result in her termination.  Nonetheless, only one month later, Hall disregarded the prior warning and deliberately argued with a vulnerable patient over a wheelchair and implied that the patient would end up in a nursing home.  Hall continued the argument even after the patient became visibly upset.  This conduct was both inappropriate and beyond the scope of Hall’s authority.  Therefore, because Hall deliberately disregarded Park Nicollet’s directive on appropriate conduct in the workplace, her conduct constitutes misconduct as a matter of law.[2] 


[1] The department erroneously informed Hall that the decision was in her favor and mailed her a benefits check.  Several days later, Hall received an amended notice of the actual decision and was told to repay the benefits sent to her. 

[2] Hall also argues that Park Nicollet’s delay in acting on Jefferson’s complaint evinces that she did not commit misconduct.  A “[l]apse of time between the alleged misconduct and discharge, absent circumstances that would explain the delay, may tend to negate a causal relation between the misconduct and the discharge.”  Redalen v. Farm Bureau Life Ins. Co., 504 N.W.2d 237, 239 (Minn. App. 1993).  But here, the labor-relations manager’s extended vacation in July constitutes a circumstance explaining the delay.