This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Lakes Medi-Van, Inc.,
Commissioner of Employment and
Filed July 19, 2005
Department of Employment and Economic Development
File No. 10025 04
Medi-Van, Inc., Detroit Lakes Location,
Linda A. Holmes, Department of Employment and Economic Development, E200 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101 (for respondent Commissioner)
Considered and decided by Willis, Presiding Judge, Klaphake, Judge, and Shumaker, Judge.
review of unemployment insurance cases is narrow and limited to determining
whether the record reasonably supports the decision of the senior unemployment
review judge. Tuff v. Knitcraft, 526 N.W.2d 50, 51 (
The issue of
whether an employee committed employment misconduct is a mixed question of fact
and law. Schmidgall v. FilmTech Corp., 644 N.W.2d 801, 804 (
An employee who is discharged for employment misconduct is disqualified from receiving unemployment benefits. Minn. Stat. § 268.095, subd. 4 (Supp. 2003). Employment misconduct is exclusively defined to include
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.
perfection is not expected, employers have the right to expect that employees
will abide by reasonable instructions and directions. McGowan
v. Executive Express Transp. Enters., Inc., 420 N.W.2d 592, 596 (
Here, the review judge made the following findings: (1) relator, who was employed as a driver to transport disabled clients, received training and knew that she was required to secure her passengers with seat belts; (2) on March 19, 2004, relator’s supervisor warned her that she was required to use seat belts and ensure that her passengers always face the front of the van, and that her failure to follow these rules would be grounds for immediate dismissal; and (3) on May 27, 2004, after receiving a complaint the day before that relator was transporting clients faced sideways in her van, relator’s supervisor discharged her after he observed her transporting a client who was sitting sideways without a seat belt.
Relator denies engaging in any wrongful conduct and claims that she was discharged in retaliation for her complaints of sexual harassment. The review judge found the testimony of relator’s supervisor to be more credible and rejected relator’s testimony in which she denied transporting clients while sitting sideways and without seat belts. The review judge further rejected relator’s claim of retaliation and determined that her May 2004 discharge was unrelated to her 2003 complaints of sexual harassment against a co-worker, which the judge found were investigated and resulted in disciplinary action against the co-worker.
“vehemently and repeatedly denies transporting a client sideways or
transporting a client without a seat belt” and asserts that her “recollection
of the incident is more reasonable and believable than that offered by her
employer.” She attacks the credibility
of her supervisor, who testified at the hearing before the unemployment law
judge and who documented his warnings to relator in written memoranda that were
submitted to the department. But we must
defer to the credibility assessments made by the review judge. See Whitehead
v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (
Because (1) the review judge is entitled to make credibility determinations, and (2) the review judge’s decision is reasonably based on the evidence, including the testimony of relator’s supervisor regarding the warning he gave to relator and his observation of her violating that warning, we affirm.
 For unemployment decisions made on or after
August 1, 2004, the decision maker formerly known as the commissioner’s
representative is now referred to as a “senior unemployment review judge.” Minn. Stat. § 268.105, subd. 2 (2004); 2004
 Relator further claims that she was discharged based on her race, an issue that was not raised at the hearing before the unemployment law judge and not addressed by the senior unemployment review judge. Other than her bare allegations, relator has failed to produce any evidence to show that race was a factor in her discharge.