This opinion will be unpublished and

may not be cited except as provided by

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








Lois R. Rieland,





Melrose Area Hospital CentraCare,



Department of Employment and Economic Development,




Filed November 8, 2005


Toussaint, Chief Judge


Department of Employment and Economic Development

Agency File No. 16822 04



Lois R. Rieland, 29198 County Road 176, Freeport, MN 56331 (pro se relator)


Melrose Area Hospital CentraCare, 11 North 5th Avenue West, Melrose, MN 56352 (respondent)


Linda Alison Holmes, Department of Employment and Economic Dev., 332 Minnesota Street, Suite E200, St. Paul, MN 55101-1351 (for respondent DEED)



            Considered and decided by Toussaint, Chief Judge; Shumaker, Judge; and Dietzen, Judge.


U N P U B L I S H E D   O P I N I O N


TOUSSAINT, Chief Judge


            Relator challenges the decision of the senior unemployment review judge (SURJ) that she was disqualified from receiving unemployment benefits because she had been discharged for misconduct. Because the record contains evidence reasonably tending to support the SURJ’s findings and because such conduct represents disqualifying misconduct, we affirm.


            The sole issue is whether relator’s conduct constituted employment misconduct under Minn. Stat. § 268.095, subd. 6(a) (2004).  The SURJ determined that it did constitute misconduct.

            The factual findings of the SURJ are “viewed in the light most favorable to the decision, and if there is evidence reasonably tending to sustain them, they will not be disturbed.” White v. Metro. Med. Ctr., 332 N.W.2d 25, 26 (Minn. 1983). But whether specific acts constitute misconduct is a question of law, which we review de novo. Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).

            An applicant who is discharged shall be disqualified from benefits if the discharge was due to employment misconduct.  Minn. Stat. § 268.095, subd. 4(1) (2004).  “Employment misconduct” is “any intentional, negligent, or indifferent conduct . . . (1) that displays clearly a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee; or (2) that displays clearly a substantial lack of concern for the employment.”  Id. 

            Relator worked as a certified nursing assistant (CNA) at respondent nursing home from August 17, 1981 to October 18, 2004.  She was discharged based on five “warnings” that she received over the last 22 months of her employment: the first was a verbal reprimand, the next three were written warnings including a specific caution that another incident could result in termination, and the fifth written warning resulted in her termination.

            The SURJ noted that relator worked with vulnerable adults and concluded that her “actions in dealing with her patients during her final year and a half with Melrose demonstrated employment misconduct.”  The SURJ specifically found that relator (1) continued to handle patients without gloves after a verbal warning; (2) caused a resident to fall by failing to attach an alarm; (3) caused a resident to call her daughter for assistance because she could not reach a call button; (4) lacked credibility in stating that she attached an alarm to a resident who then fell without an alarm attached; (5) left a resident in a precarious position on a bed after twice being asked to correct it; (6) caused a resident to cry out in pain; and (7) left her unit before her replacement arrived.  These facts are supported by the record.

            These incidents show relator’s multiple policy violations in a vulnerable adult employment setting which support the conclusion that relator showed a substantial lack of concern for her employment.  See Auger v. Gillette Co., 303 N.W.2d 255, 257 (Minn. 1981) (stating that nature of employer’s interest will vary depending on job and what constitutes disregard of that interest also will vary).  They do not fall within the statutory exemption for “[i]nefficiency, inadvertence, simple unsatisfactory conduct, . . . conduct an average reasonable employee would have engaged in under the circumstances, poor performance because of inability or incapacity, [or] good faith errors in judgment if judgment was required.”  Minn. Stat. § 268.095, subd. 6.   The policies breached required no exercise of judgment, the conduct affected vulnerable adults, and multiple warnings were given.  Therefore, the incidents were not excusable under the statutory standard and thus constituted misconduct.