This opinion will be unpublished and

may not be cited except as provided by

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







Julie A. Powers,





Reliable Medical Supply, Inc.,



Department of Employment and Economic Development,




Filed August 8, 2006


Halbrooks, Judge



Department of Employment and Economic Development

File No. 899005



Marnie Lynn DeWall, 80 South 8th Street, Suite 4200, Minneapolis, MN 55402 (for relator)


Reliable Medical Supply, Inc., c/o Jeff Hall, 7111 West Broadway, Brooklyn Park, MN 55428 (respondent)


Linda A. Holmes, Department of Employment and Economic Development, E200 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101 (for respondent department)



            Considered and decided by Minge, Presiding Judge; Shumaker, Judge; and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N


By writ of certiorari, relator challenges the decision by the unemployment law judge (ULJ) affirming her earlier order that relator was disqualified from receiving unemployment benefits because she was discharged for misconduct.  The ULJ determined that relator violated the standard of conduct prohibiting disrespectful behavior toward other employees when she used profanity toward her managers and called them derogatory names, was uncooperative and disrespectful, and repeated this behavior despite warnings.  Because the ULJ’s findings are supported by substantial evidence and because relator’s conduct satisfies the definition of misconduct, we affirm.


            Relator Julie A. Powers was employed by respondent Reliable Medical Supply, Inc., a medical supply and equipment provider, from April 9, 2001 until April 25, 2005.  When relator was discharged, her job title was rehab technician, and her duties included loading equipment into a vehicle, delivering it to customers, and fitting equipment for customers.

            From the beginning of relator’s employment until February 2005, she was supervised by service manager Jody Powers.  Powers testified that relator had a history of losing her temper and swearing.  In February 2005, Alicia Truebenbach became relator’s supervisor, and Dave Francis was her manager.

            On September 7, 2004, Francis gave relator three written warnings addressing three different incidents.  The first warning concerned an incident that occurred on August 4, 2004.  Relator was upset about her review and called the CEO derogatory names and stated that Reliable did not care about the service department.  The second warning concerned a September 7, 2004 incident, during which relator was verbally abusive to Francis.  The third warning, labeled “final written warning,” concerned another incident that occurred on September 7, 2004.  Relator told another employee that she hated Francis and that she had worked for the company longer but Francis thought he knew it all and was telling her what to do.

            Managers Yemisi Coker and Debra Kalk were present when Francis gave the September 7, 2004 warnings to relator.  Coker testified that relator swore and was extremely rude, talking in a degrading manner to Francis but that Francis behaved respectfully toward relator.  Kalk testified that relator was extremely belligerent to Francis and used derogatory language toward him.

            On April 14, 2005, relator approached Jody Powers in a manner that Powers described as “very confrontational and aggravated” in an area where customers were present.  Relator was upset because she needed to get to an appointment and the parts that she needed had not been pulled.  Powers testified that he explained to relator that sometimes appointments are not set until after the employee who pulls the parts for drivers leaves for the day and that she could pull her own parts if she so desired.  Powers stated that relator responded by telling him “in a screaming voice that I’m sorry I have an f’ing family and can’t stay f’ing late and I don’t have someone to pick up my kids.  The conversation ended as she walked away saying that I need to get an f’ing spine.”  Powers’ testimony indicated that relator used the actual obscenity rather than the abbreviated form Powers used in his testimony.  Truebenbach, who arrived as the conversation was ending, heard relator yelling and saw her storm out of the area.

            The next day, Powers sent Truebenbach an e-mail about the incident.  Powers stated that his primary reason for sending the e-mail was to notify Truebenbach that relator “had had another incident, she had had another argument, she had another situation where she was screaming at people.”

            Truebenbach testified that, on April 21, 2005, Jeff Hall, Reliable’s owner, heard relator yelling and swearing.  Hall described relator’s behavior as “very angry and inappropriate.”

            Powers testified as follows about the decision to discharge relator:

Q         . . . [W]hat was your role then in the discharge.


A         [Truebenbach, Hall,] and I sat down and discussed the incidents, primarily the April 14th incident and stated that clearly this was her going way out of bounds as far as screaming, using profanity, being confrontational and doing so in the workplace in front of customers.


Q         All right, and did anything come up about these prior warnings in September 2004.  Did you discuss those before deciding to discharge.


A         We discussed that she had been given three warnings prior for very similar cases.  We discussed that somehow it, we discussed that she had been warned three times and that clearly she was not going to stop.


Reliable discharged relator from employment on April 25, 2005.  Truebenbach testified that relator was discharged based on the April 14 and 21, 2005 incidents and the written warnings in her file.

Relator filed a claim for unemployment benefits with respondent Department of Employment and Economic Development.  A department adjudicator determined that relator was discharged from employment for misconduct and was, therefore, disqualified from receiving benefits.  Relator appealed to a ULJ, who affirmed the misconduct determination.  Relator filed a request for reconsideration.[1]  The ULJ determined that its initial decision was factually and legally correct and affirmed it in its entirety.  This certiorari appeal follows.


This court will reverse the ULJ’s decision only when it reflects an error of law, is “arbitrary or capricious,” or the findings are “unsupported by substantial evidence in view of the entire record.”  Minn. Stat. § 268.105, subd. 7(d) (Supp. 2005).  “Substantial evidence” has been defined as “(1) such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; (2) more than a scintilla of evidence; (3) more than some evidence; (4) more than any evidence; or (5) the evidence considered in its entirety.”  Minn. Ctr. for Envtl. Advocacy v. Minn. Pollution Control Agency, 644 N.W.2d 457, 466 (Minn. 2002).  We view the factual findings in the light most favorable to the decision.  Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996).  On questions of law, this court is not bound by the ULJ’s conclusions, but exercises its own independent judgment.  Markel v. City of Circle Pines, 479 N.W.2d 382, 384 (Minn. 1992).

Whether an employee is discharged for employment misconduct is a mixed question of fact and law.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  Whether an employee committed a particular act is a question of fact.  Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  But whether an employee’s actions constitute employment misconduct is a question of law, which we review de novo.  Ress v. Abbott Nw. Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989). 

An employee who is discharged for employment misconduct is disqualified from receiving unemployment 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 a substantial lack of concern for the employment.”  Minn. Stat. § 268.095, subd. 6(a) (Supp. 2005).  But “[i]nefficiency, inadvertence, simple unsatisfactory conduct, a single incident that does not have a significant adverse impact on the employer, [or] conduct an average reasonable employee would have engaged in under the circumstances” is not employment misconduct.  Id.

            Relator argues that the ULJ’s findings are not supported by substantial evidence, mischaracterize the testimony, and ignore relevant, corroborating evidence.  Relator further contends that the absence of documentary evidence, particularly the absence of a fourth warning for relator’s conduct during the administration of the warnings, casts serious doubt on the accuracy of Coker’s and Kalk’s testimony.  But this court defers to the ULJ’s determinations of credibility and of the weight of the evidence, and we will not reevaluate credibility or reweigh the evidence on appeal.  “When witness credibility and conflicting evidence are at issue, the reviewing court defers to the ULJ’s ability to weigh the evidence and make those determinations and does not reweigh the evidence on review.  Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995).  The ULJ acted within her discretion in crediting the testimony of Coker and Kalk.

            Relator argues that the ULJ’s decision places “undue emphasis” on the warnings given to her in September 2004.  Those written warnings were exhibits admitted into evidence at the hearing.  The ULJ’s findings address both the September 2004 warnings and the April 2005 incidents.  But the misconduct determination does not emphasize the September 2004 warnings, but, instead, is based on relator’s disrespectful behavior, use of profanity, and derogatory comments after having received warnings about her behavior.

            The record does not support relator’s contention that her termination resulted primarily from the April 2005 incidents.  Powers testified that he, Truebenbach, and Hall met to discuss “the incidents, primarily the April 14th incident.”  His reference to “primarily the April 14th incident” occurred during testimony about the April 14 and 21, 2005 incidents.  Considered in context, it compares the April 14 to the April 21 incident, not to the September 2004 warnings.

            Relator argues that the time lapse between the September 2004 warnings and her April 2005 discharge negates any causal connection between the warnings and her discharge.  See Redalen v. Farm Bureau Life Ins. Co., 504 N.W.2d 237, 239 (Minn. App. 1993) (stating that time lapse between misconduct and discharge may tend to negate a causal relation between the misconduct and the discharge).  The time lapse between the September 2004 warnings and the April 2005 termination is not sufficient to negate the causal connection between the two.  See Schmidgall, 644 N.W.2d at 807 (concluding that an employee’s pattern, consisting of three violations during a period of more than nine months, of failing to comply with her employee’s same-shift injury reporting policy was employment misconduct).

            Relator next argues that the evidence does not support the ULJ’s findings on the April 14 and 21, 2005 incidents.  Relator contends that the ULJ erred in crediting Powers’ testimony in light of relator’s conflicting testimony and the absence of evidence corroborating Powers’ testimony.  As previously noted, weighing evidence and assessing witness credibility are issues for the ULJ.  Relator cites no authority supporting the position that corroborating evidence is required.  See Midway Ctr. Assocs. v. Midway Ctr., Inc., 306 Minn. 352, 356, 237 N.W.2d 76, 78 (1975) (burden of showing error rests upon party that asserts error).

            Regarding the April 21 incident, the ULJ found that Hall heard relator “using foul language over some broken equipment.”  Relator objects to the admission of Truebenbach’s testimony about Hall’s report.  But under Minn. R. 3310.2922 (2005), the ULJ “may receive any evidence which possesses probative value, including hearsay, if it is the type of evidence on which reasonable, prudent persons are accustomed to rely in the conduct of their serious affairs.”  Hall’s report falls within rule 3310.2922.

            Finally, relator argues that the ULJ erred in failing to take into account former employee Paul Myers’s affidavit stating that other employees were not disciplined for using foul language.  But Powers testified that foul language was not tolerated when it was directed at other people, and Myers’s affidavit does not contradict that.

            Relator’s ongoing instances, following warnings, of inappropriate workplace behavior and obscene and derogatory language directed at others satisfy the definition of misconduct.  We, therefore, conclude that the ULJ properly determined that relator was discharged for misconduct.


[1] The legislature recently changed the procedure for review of the ULJ’s decision: a request for reconsideration, which may be filed by the employer, the employee, or the commissioner, is decided by the same ULJ who conducted the evidentiary hearing, rather than a senior unemployment-review judge.  Minn. Stat. § 268.105, subd. 2 (Supp. 2005).