This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
Commissioner of Employment and Economic Development,
Filed November 23, 2004
Department of Employment and Economic Development
File No. 8768 03
Jordan S. Kushner, 636 Sexton Building, 529 South Seventh Street, Minneapolis, MN 55415 (for relator)
Samuel D. Orbovich, Thomas L. Skorczeski, Orbovich & Gartner, Suite 417, Historic Hamm Building, 408 St. Peter Street, St. Paul, MN 55102 (for respondent employer)
Lee B. Nelson, Linda A. Holmes, Department of Employment and Economic Development, 390 North Robert Street, St. Paul, MN 55101 (for respondent commissioner)
Considered and decided by Wright, Presiding Judge; Peterson, Judge; and Forsberg, Judge.
U N P U B L I S H E D O P I N I O N
On appeal from the decision of the commissioner’s representative denying unemployment benefits, relator claims that the evidence is insufficient to support the factual finding that she woke patients early in violation of their care plans and that the factual findings are inadequate to conclude that she committed employment misconduct. Relator also argues that the representative must explain why he reached a different conclusion than the “well-reasoned decision” of the administrative-law judge. Because we find that the representative’s findings were based on substantial evidence, that relator engaged in employment misconduct, and that the representative does not need to explain his deviations from the ALJ’s decision, we affirm.
Relator Sarah Williams worked for over seven years as a certified nursing assistant (CNA) for respondent Jones-Harrison Home Corp. (Jones), a long-term care facility. On April 21, 2003, Williams was fired because she allegedly failed to follow the care plans for the residents and did not follow the procedure for the time clock.
Five days before Williams was fired, a meeting for certain members of the staff was held, and the discussion centered on residents falling asleep at breakfast. After the meeting, Caroline Akinsola, a CNA, approached Tracy Christofilis, the director of nursing, and told Christofilis the reason that the residents were falling asleep at breakfast was that certain night-shift employees were waking them early.
Christofilis and Phyllis Mensah, another employee, investigated Akinsola’s allegations on April 17. Christofilis arrived at 5:15 a.m. and observed Williams dressing a patient even though Williams was not scheduled to work until 6:00 a.m. Only one of the residents is supposed to be woken before 6:00 a.m. Lydia Malike, another CNA, stated in a signed letter that three residents were up and dressed when she arrived at 6:00 a.m. Williams and two other nursing assistants were sent home without being able to explain themselves.
Williams’s version of the events is different. Williams testified at the hearing that: (1) she was at work early on April 17 to look for her checkbook and credit card, which had been missing for a couple of days; (2) while looking for her checkbook, a resident buzzed for help to go to the toilet, which is what she was doing when Christofilis saw her at work that morning; and (3) four residents were to be woken up before 6:00 a.m.
Williams also allegedly woke up residents early on prior occasions. Jennifer Pearson, a registered nurse, stated in a letter that Williams woke and dressed the residents on two prior occasions. Akinsola also stated in a letter that, on one occasion, all of Williams’s residents were up early and in their wheelchairs. During the course of the investigation into the incident, Mardonna Lemon, a CNA, allegedly stated that Williams would call ahead to the night-shift employees so that they would wake her residents before she arrived, so Williams would not be rushed during her shift. Lemon now denies making these statements. Williams also presented evidence at the hearing that other employees never saw her waking residents early.
After Williams was fired, she filed for unemployment benefits and was denied those benefits. Williams appealed the adjudicator’s decision, and the ALJ overturned it, instating unemployment benefits. Jones appealed to the commissioner’s representative, and the representative overturned the ALJ’s decision, thereby denying unemployment benefits to Williams. This appeal followed.
D E C I S I O N
Williams argues that the evidence is insufficient to support the factual finding that Williams woke patients early in violation of their care plans. Specifically, Williams argues that (1) the testimony of her live witnesses should be given greater deference than Jones’s “vague, conclusory, uncorroborated, and unsworn and unverified hearsay statements” and (2) Jones’s hearsay evidence is not reliable. Generally, “[a]lthough a reviewing court might reach a contrary conclusion to that arrived at by an administrative body, the court cannot substitute its judgment for that of the administrative body when the finding is properly supported by the evidence.” Vicker v. Starkey, 265 Minn. 464, 470, 122 N.W.2d 169, 173 (1963). The representative found that Williams was waking residents early in violation of their care plans.
Here, the evidence properly supports the representative’s decision that Williams woke residents early in violation of their care plans even though she presented live testimony to the contrary. When combined with the alleged prior pattern of waking residents early, the representative made a logical inference that Williams was waking residents early on April 17. Williams was at work early, and the resident she was with was awake and being dressed before the resident was supposed to be. Thus, the representative’s decision is properly supported by the evidence.
Williams also argues that Jones’s hearsay evidence is not reliable and should not be accepted over her witnesses’ live testimony. Minnesota appellate courts have substituted their judgment for that of the commissioner’s representative in certain circumstances. See, e.g., Posch v. St. Otto’s Home, 561 N.W.2d 564, 566 (Minn. App. 1997) (giving no deference to the commissioner’s findings because the commissioner relied on an affidavit that lacked detail and where affiant had a reason to lie); Holton v. Gnan Trucking, Inc., 379 N.W.2d 571, 574 (Minn. App. 1985) (giving no deference to the commissioner’s findings because the evidence the commissioner relied on consisted of the relator’s own testimony, whereas the hearsay evidence was reliable when it consisted of letters from three independent witnesses with no reason to lie and the letters were straightforward and specific).
Here, the evidence that supports the representative’s decision is reliable because it was detailed and corroborated. Pearson’s letter stated that she observed residents awake at 6 a.m. on two prior occasions. Akinsola’s letter detailed the times and dates of prior instances of Williams’s residents being wakened early. Pearson’s and Akinsola’s observations were corroborated by a letter detailing interviews with another staff member who helped Williams wake residents on prior occasions.
Concerning the events of April 17, Malike specifically stated in her letter that three residents were up and dressed when she arrived at work at 6 a.m. on April 17, but only one resident was supposed to be up at that time. Most importantly, the events of April 17 were corroborated by Christofilis’s live, non-hearsay testimony that she observed Williams at work early and dressing a resident. Thus, the evidence that properly supports the representative’s decision is reliable.
Williams argues that the representative’s finding, that she woke residents early in violation of their care plans, is insufficient to support the conclusion that Williams engaged in employment misconduct. This court determines if an act is employment misconduct under a de novo review. Thompson v. County of Hennepin, 660 N.W.2d 157, 160 (Minn. App. 2003).
Employment misconduct is “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.” Minn. Stat. § 268.095, subd. 6 (2002). Employment misconduct “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.” Houston v. Int’l Data Transfer Corp., 645 N.W.2d 144, 149 (Minn. 2002). Intentional conduct is deliberate. Id. The employee must also “inten[d] to, or engage in conduct that evinc[es] 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. at 150.
Here, Williams’s conduct was deliberate. She either arrived at work early or called ahead to wake the residents and directed other staff to wake the residents before their scheduled time to wake up. Williams’s conduct also evinced an intent to ignore or pay no attention to her duties and obligations that Jones had a right to expect of her. Her acts violated the patients’ care plans. As the representative points out, following reasonable instructions is especially important in the health care field. Because the patients were awake early, they were sleepy during the day, which made it difficult for them to take their medication. Jones had a right to expect Williams to follow the patients’ care plans. Thus, because William’s conduct was deliberate and because it evinced an intent to ignore the duties that Jones has a right to expect of her, Williams engaged in employment misconduct.
Williams finally argues that the representative must explain why he reached a different conclusion than the “well-reasoned decision” of the ALJ. “The standard of review is not heightened where the final decision of the agency decision-maker differs from the recommendation of the ALJ.” In re Excess Surplus Status of Blue Cross & Blue Shield of Minn., 624 N.W.2d 264, 278 (Minn. 2001). “[T]he agency decision-maker owes no deference . . . to the findings, conclusions, or recommendations of the ALJ.” Id.
Here, the representative does not have to explain his reversal, and, at most, the reversal is evidence that “may suggest that the agency exercised its will rather than its judgment and was therefore arbitrary and capricious.” Id. (emphasis added). There is no evidence that the agency was arbitrary and capricious because, as stated above, the evidence supports the factual findings of the representative, and the factual findings support the legal conclusions of the representative. Thus, the representative does not need to explain his factual or legal deviations from the ALJ’s decision.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.