This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Connie J. Hanson,



Nativity Child & Family Center,


Commissioner of Economic Security,


Filed April 8, 1997


Mulally, Judge


Department of Economic Security

File No. 468UC96

Peter B. Knapp, Robin K. Raplinger, Certified Student Attorney, William Mitchell Law Clinic, 875 Summit Avenue, St. Paul, MN 55105 (for Relator)

Gregory G. Brooker, 114 West 49th Street, Minneapolis, MN 55409 (for Respondent Nativity Child and Family Center)

Kent E. Todd, 390 North Robert Street, St. Paul, MN 55101 (for Respondent Commissioner of Economic Security)

Considered and decided by Huspeni, Presiding Judge, Parker, Judge, and Mulally, Judge.



Connie J. Hanson appeals from the Commissioner of Economic Security's denial of reemployment insurance benefits because of misconduct, arguing she did not intend to damage her employer's interests when she spanked a child at respondent Nativity Child and Family Center. We affirm.


Hanson was employed as a teacher's aide at Nativity from February 1, 1995 through April 29, 1996. Nativity operates a preschool and a state-licensed day care center.

On April 24, 1996, Hanson was supervising a nap room with preschool-aged children when one of the children repeatedly disrupted the nap period. Hanson told the child to be quiet a number of times, but when his actions continued, Hanson approached the child. When she drew close, the child struck out and knocked Hanson's glasses off her face. Hanson immediately turned the child over and spanked the child once on the bottom. Hanson told the child to be quiet. The child did not cry, nor was he injured.

Later that afternoon, Hanson told Nativity's director about the incident. Hanson said that at the time of the incident, she knew her action violated Nativity's rules and state rules. On April 29, 1996, Hanson was terminated for violation of Nativity's rules and state rules.

As a state-licensed day care facility, Nativity is required to follow statutory rules on personnel behavior toward the children. See Minn. Stat. §§ 245A.02, .09, .16 (1996). The relevant rule here dictates that

[t]he license holder must have and enforce a policy that prohibits the following actions by or at the direction of a staff person:

A. Subjection of a child to corporal punishment. Corporal punishment includes * * * spanking.

Minn. R. 9503.0055, subpt. 3 (1995). The rules require the day care facility to train its personnel in the behavior rules. Minn. R. 9503.0035, subpt. 1 (1995). The record shows that the state rules were included in Nativity's "Personnel Polices" handbook given to Hanson and that she was trained in the behavior rules.

Nativity informed the Minnesota Department of Human Services of the incident. The Department of Human Services conducted an investigation and issued a citation against Nativity. The citation is kept as part of Nativity's record and the Department must inform parents of the violation if contacted.

Hanson applied for reemployment benefits, but was disqualified because the Department of Economic Security determined she was terminated for misconduct. On appeal, the reemployment insurance judge reversed and held that Hanson was entitled to benefits because the incident was an isolated momentary error and not willful misconduct. The Commissioner's representative reversed, disqualifying Hanson from benefits because she was terminated for misconduct. Hanson appeals.


Whether an employee committed disqualifying misconduct is a mixed question of fact and law. Colburn v. Pine Portage Madden Bros., 346 N.W.2d 159, 161 (Minn. 1984). The Commissioner's representative's findings should be viewed in the light most favorable to the decision and should not be overturned if there is evidence in the record that reasonably tends to sustain those findings. Ress v. Abbott N.W. Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989). The final determination of whether an employee committed misconduct, however, is a question of law upon which this court is "free to exercise its independent judgment." See id.

An employee who is discharged for misconduct is disqualified from receiving reemployment compensation benefits. Minn. Stat. § 268.09, subd. 1(b) (1996). The employer has the burden of proving by a preponderance of the evidence that an employee committed disqualifying misconduct. Ress, 448 N.W.2d at 523.

The supreme court has adopted the following definition of "misconduct":

" * * * [T]he intended meaning of the term 'misconduct' * * * is limited to conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed 'misconduct' * * * .

Tilseth v. Midwest Lumber Co., 295 Minn. 372, 374-75, 204 N.W.2d 644, 646 (1973) (quoting Boynton Cab Co. v. Neubeck, 296 N.W. 636, 640 (Wis. 1941)). In analyzing misconduct, this court has generally considered the following factors:

(1) whether an employee deliberately violated standards of behavior which the employer has a right to expect of its employee, (2) whether an employee's conduct adversely affected the business or other employee's morale, and (3) whether an employee ignored past warnings.

Ress, 448 N.W.2d at 524. Even a single incident can constitute misconduct. See Colburn, 346 N.W.2d at 161.

1. Hanson argues the spanking was not misconduct because the incident was an "isolated hotheaded incident" that did not adversely affect Nativity's business. See Windsperger v. Broadway Liquor Outlet, 346 N.W.2d 142, 145 (Minn. 1984) (holding that isolated hotheaded incident not interfering with employer's business is not disqualifying misconduct); see also Oman v. Daig Corp., 375 N.W.2d 533, 536 (Minn. App. 1985) (holding no disqualifying misconduct where isolated hotheaded incident was very short in duration and caused no injury). We disagree.

Here, the record shows that Nativity's employee manual indicated its goal was "to provide a nurturing and loving environment" for other people's children. Hanson was fully trained in Nativity's rules, including the rule of no corporal punishment. By disregarding the rule, Hanson placed her employer's interests in jeopardy. If Nativity received repeated corporal punishment violations, its license could be revoked. Because Hanson clearly understood Nativity's interests and also knew the seriousness of corporal punishment violations on Nativity's business interests, her act was more than mere inadvertence or an isolated hotheaded incident. It showed a carelessness toward the central purpose of Nativity's business. Overall, the record supports the Commissioner's representative's decision that Hanson is disqualified from receiving benefits.

2. Hanson argues that the Commissioner's representative constructed a per se disqualification rule because both a work and state rule were violated. We disagree. The Commissioner's representative properly analyzed the facts and applied the definition of misconduct in Tilseth. The Commissioner's representative's decision did not create a per se disqualification rule where an employer's rules and state rules are violated.


[ ]* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.