This opinion will be unpublished and

may not be cited except as provided by

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








David Mbwaro,





Jones-Harrison Home Corp.,



Department of Employment and Economic Security,




Filed March 28, 2006


Ross, Judge


Department of Employment and Economic Security

File No. 5745 05



David Mbwaro, 1025 Second Street Northeast, #213, Hopkins, MN 55343 (pro se relator)


Thomas L. Skorczeski, Orbovich & Gartner, 417 Historic Hamm Building, 408 St. Peter Street, St. Paul, MN 55102 (for respondent Jones-Harrison Home Corp.)


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



            Considered and decided by Randall, Presiding Judge; Minge, Judge; and Ross, Judge.

U N P U B L I S H E D   O P I N I O N

ROSS, Judge

In this certiorari appeal, relator David Mbwaro challenges the decision of the Department of Employment and Economic Development (DEED) to disqualify Mbwaro from unemployment benefits.  A DEED senior unemployment review judge (SURJ) decided that respondent Jones-Harrison [Residence] Home Corporation—Mbwaro’s former employer—discharged Mbwaro for employment misconduct, disqualifying Mbwaro from receiving unemployment benefits. Because the evidence supports the SURJ’s findings and conclusion of disqualification, we affirm.


David Mbwaro worked as a nursing assistant at a Jones-Harrison residential care facility from January 19, 2004, until March 7, 2005, when Jones-Harrison suspended Mbwaro and soon discharged him for employment misconduct.  Mbwaro’s termination culminated a series of warnings and coaching by supervisors who had been noting Mbwaro’s work deficiencies.  According to his well-documented performance history, Jones-Harrison supervisors had previously warned Mbwaro concerning substandard work and policy violations beginning in April 2004: failing to turn on resident medical alarms; entering resident rooms without knocking; failing to communicate respectfully with residents; failing to arrive to work; engaging in substandard personal care of a resident; and failing to tend promptly to a resident’s toiletry needs. 

According to two Jones-Harrison reports about Mbwaro’s conduct and the supporting testimony offered during Mbwaro’s unemployment hearing, Mbwaro engaged in several employment deficiencies on March 7, 2005.  Mbwaro had left his assigned unit for 45 minutes without notice or permission.  He failed to feed dinner to at least one resident assigned to his care.  He put eight residents to bed within a time period too short to have allowed him to prepare each of them for retirement according to their care needs.  He failed to perform his dining-room duties.  Finally, he yelled angrily when nurses questioned his unauthorized absence.  A Jones-Harrison nursing director investigated Mbwaro’s reported misconduct and the company terminated his employment on March 16, 2005.

Mbwaro applied for unemployment benefits but was deemed unqualified when a DEED adjudicator found that Jones-Harrison discharged Mbwaro for employment misconduct.  Mbwaro appealed that decision to an unemployment law judge, who reached the same conclusion after a hearing.  Mbwaro unsuccessfully appealed again, a senior unemployment review judge determining Mbwaro’s disqualification because of the misconduct-based discharge.  Mbwaro then brought this certiorari appeal.


The “misconduct” finding is critical to the challenged disqualification from unemployment benefits, since an employee discharged for employment misconduct is disqualified from receiving those benefits.  Minn. Stat. § 268.095, subd. 4(1) (2004).  Employment misconduct is “any intentional, negligent, or indifferent conduct, on the job or off the job (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.” Minn. Stat. § 268.095, subd. 6(a) (2004).  We do not analyze whether Mbwaro’s unauthorized absence from his assigned unit at a residential nursing-care facility, his failure to feed a resident, his failure to complete his dining-room duties, his neglect of residents’ pre-bedding care, and his loud protests, represent misconduct under the statute.  Mbwaro’s appeal does not challenge the SURJ’s legal conclusion that this conduct constitutes disqualifying misconduct, and it is obvious to us that such a challenge would be unconvincing.  Rather, Mbwaro contends that the SURJ’s factual findings are unsupported by the evidence.  Our review of the record leads us to disagree. 

We give particular deference to the SURJ’s factual findings, reviewing them in the light most favorable to the decision and disturbing them only if the evidence does not reasonably tend to sustain the findings.  See Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002) (noting narrow review standard applied to findings of DEED’s predecessor agency, the Department of Economic Security).  We will not reweigh conflicting evidence de novo, Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995), leaving intact the SURJ’s credibility determinations.  Jenson v. Dep’t of Econ. Sec., 617 N.W.2d 627, 631 (Minn. App. 2000), review denied (Minn. Dec. 20, 2000).

We find no basis to upset the SURJ’s factual findings here.  Mbwaro urges that the allegations against him are false and factually unsupported.  It is true that Mbwaro’s testimony before the unemployment law judge conflicted with the allegations of his performance failures of March 7, 2005.  But Mbwaro’s testimony is only part of the record.  The balance includes testimony from other employee-witnesses, and their accounts directly and circumstantially corroborated each allegation.  Deferring to the SURJ’s reasonable interpretation of the conflicting testimony, as we must, we conclude that ample evidence in the record sustains the findings.  We therefore do not disturb the SURJ’s decision of disqualification arising from Mbwaro’s employment misconduct.