This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1541

 

Sidney L. Williams,
Relator,

vs.

Regency Health Care,
Respondent,

Commissioner of Employment and Economic Development,
Respondent.

 

Filed April 26, 2005

Affirmed

Minge, Judge

 

Department of Employment and Economic Development

File No. 4228 04

 

 

Sidney L. Williams, 7388 Upper 139th Street West, Apple Valley, MN 55124-7353 (pro se relator)

 

Lee B. Nelson, Linda A. Holmes, First National Bank Building, 332 Minnesota Street, Suite E200, St. Paul, MN 55101-1351 (for respondent Commissioner)

 

††††††††††† Considered and decided by Wright, Presiding Judge; Randall, Judge; and Minge, Judge.

U N P U B L I S H E D† O P I N I O N

MINGE, Judge

††††††††††† Relator challenges the determination by the representative of the commissioner that he was disqualified from receiving unemployment benefits on the grounds that relator engaged in aggravated misconduct.† Because we find that substantial evidence supports the commissionerís finding that relator engaged in inappropriate sexual interactions with a vulnerable adult, we affirm.

FACTS

 

††††††††††† Respondent Regency Health Care employed relator Sidney Williams as a licensed practical nurse from September 2, 2003 until November 1, 2003.† One of the female residents of the home, who was a quadriplegic and ventilator dependent, reported that she was the victim of sexually harassing activities by relator.† As a result of these allegations, the Minnesota Department of Health (MDH) initiated an investigation.† MDH issued a report of its investigation, concluding that abuse occurred and relator was discharged.

††††††††††† After relator was discharged, he applied for unemployment compensation.† A Minnesota Department of Employment and Economic Development (MDEED) adjudicator found that employment misconduct had not been established and that relator was eligible for benefits.† On appeal, a MDEED unemployment law judge affirmed the decision of the adjudicator.† Respondent employer appealed to the commissionerís representative.† The representative found that the misconduct allegations were credible and concluded that relator was discharged from employment with respondent because of aggravated employment misconduct and was therefore disqualified from receiving unemployment benefits.† Relator filed a writ of certiorari.††††††††††††

D E C I S I O N

 

The issue on appeal is whether there is substantial evidence to support the finding of employment misconduct by relator.

When reviewing a determination of the commissionerís representative, this court considers only whether the record reasonably supports the commissionerís determination.† Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).† The appellate court defers to the commissionerís representativeís ability to weigh conflicting evidence.† Jenson v. Depít of Econ. Sec., 617 N.W.2d. 627, 631 (Minn. App. 2002), review denied (Minn. Dec. 20, 2000); Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995).† This court reviews the findings of the commissionerís representative rather than those of the unemployment law judge.† Tuff, 526 N.W.2d at 51.† In doing so, this court views the commissionerís representativeís findings in the light most favorable to the decision.† Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).

Whether a discharged employee engaged in employment misconduct is a mixed question of fact and law.† Schmidgall, 644 N.W.2d at 804.† Whether the employee committed a particular act is a factual determination.† Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).† But whether the act constitutes employment misconduct is a question of law, which this court reviews de novo.† Id.

A person discharged from employment because of employment misconduct or aggravated employment misconduct is disqualified from receiving unemployment benefits.† Minn. Stat. ß 268.095, subd. 4 (Supp. 2003).† Employment misconduct is defined as follows:

Employment misconduct means 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.

Inefficiency, inadvertence, simple unsatisfactory conduct, a single incident that does not have a significant adverse impact on the employer, conduct an average reasonable employee would have engaged in under the circumstances, poor performance because of inability or incapacity, good faith errors in judgment if judgment was required, or absence because of illness or injury with proper notice to the employer, are not employment misconduct.

 

Id., subd. 6(a) (Supp. 2003).† ď[F]or an employee of a facility . . . aggravated employment misconduct includes an act of patient or resident abuse, financial exploitation, or recurring or serious neglect, as defined in section 626.5572 and applicable rules.Ē† Id.,subd. 6a (2) (2002).† Among other things abuse means

Conduct which is not an accident or therapeutic conduct as defined in this section, which produces or could reasonably be expected to produce physical pain or injury or emotional distress including, but not limited to, the following:

†††††††††††

. . . .

 

(2)† use of repeated or malicious oral, written, or gestured language toward a vulnerable adult or the treatment of a vulnerable adult which would be considered by a reasonable person to be disparaging, derogatory, humiliating, harassing, or threatening.†

 

Minn. Stat. ß 626.5572, subd. 2 (b) (2002).[1]

††††††††††† †

††††††††††† Relatorís only argument on appeal is that he is the victim of false accusations motivated by a decision to retaliate against him.† The commissionerís representative is authorized to weigh the evidence, assess the credibility of the parties, and, if there is substantial supporting evidence, conclude that relator engaged in improper activities.† The representative stated in the reasons for his decision that there was evidence showing that relator engaged in inappropriate conduct involving the nursing home resident and recited that evidence.† The commissionerís representative relied on the testimony of the resident and several of relatorís coworkers and found that relatorís testimony denying the allegations and stating that they were concocted to retaliate against him was not credible.† There is substantial evidence in the record in the form of interviews during the MDH investigation that supports the representativeís findings.† We conclude the record supports the representativeís determination that relatorís conduct constituted abuse and that aggravated misconduct occurred.†

††††††††††† Affirmed.††††††



[1] An adult who is a resident or inpatient of a facility is considered a vulnerable adult.† Minn. Stat. ß 626.5572, subd. 21 (2002).†