This opinion will be unpublished and

may not be cited except as provided by

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






Kristi West,





Favorite Nurses,



Commissioner of Employment and Economic Development,



Filed February 15, 2005


Gordon W. Shumaker, Judge


Department of Employment and Economic Development

File No. 16623 03



Kristi A. West, 1023 Orchard Avenue, St. Paul, MN 55103-1235 (pro se relator)


Favorite Nurses, Leopold Stadt, Inc., c/o Unemployment Insurance Services, P.O. Box 104, Lees Summit, MO 64063-0104 (respondent employer)


Lee B. Nelson, Linda A. Holmes, Minnesota Department of Employment and Economic Development, E-200 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101 (for respondent commissioner)



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


U N P U B L I S H E D   O P I N I O N


            Relator Kristi West brings a certiorari appeal of the decision of the commissioner’s representative that she was disqualified from receiving unemployment benefits because she was discharged for employment misconduct.  West argues that the record does not support the commissioner’s representative’s decision that she was terminated for insubordination, poor patient care, an inability to work with others, and the use of profanity in dealing with patients and colleagues.  Because the commissioner’s representative’s decision is reasonably supported by the record, we affirm.


West worked for Favorite Nurses as a registered nurse from March 14, 2001, to August 12, 2003.  Favorite Nurses contracts nursing services with hospitals, nursing homes, and clinics.  As a registered nurse, West’s duties included carrying out doctor’s orders, assessing patients, and providing treatments and medications.  West’s employment with Favorite Nurses was terminated after numerous complaints from staff and patients about her work performance.

On September 24, 2001, West was “written up” because of a complaint from a family member of a patient under her care.  According to the complaint, West failed to assist the patient in toileting, refused to contact the doctor regarding test results, and complained about her workload to the patient’s family.  Finally, West used profanity when responding to another staff member who asked that West assist the patient in the bathroom.  After this incident, all four HealthEast facilities refused to allow West to work at any of its hospitals.

            On April 2, 2003, a patient complained that his meal tray was cold, that West ignored his repeated call lights for medication, and that West failed to follow his prescribed treatment plan. 

            On June 2, 2003, West was quoted as using profanity to refer to another staff member.  According to the complaint, West admitted the incident and was warned that continued complaints would be grounds for disciplinary action, including termination. 

            On June 9, 2003, West was disciplined for using a hospital’s computer and printer for personal use.  West used the hospital’s printer to print 50 pages on house buying.  As a result, the hospital asked that West not return until the matter was resolved. 

            On August 5, 2003, West was observed speaking disrespectfully to another staff member.  The hospital requested that West no longer be assigned to work there. 

            Finally, on August 8, 2003, Favorite Nurses received a complaint that West was unwilling to assist others with patient care, refused to answer call lights from her own patients, and failed to dispense required medications.  Further, West was overheard stating that she no longer liked nursing and was going to sit at the computer all day rather than work with patients. 

            After reviewing the complaints about West’s work performance, Heather Sehnert, in consultation with West’s supervisor, Pam Johnson, decided to terminate West’s employment with Favorite Nurses.  The commissioner’s representative determined that Favorite Nurses had a right to expect that West would not communicate her frustrations with her working environment to patients and other staff members.  Because West exhibited a disrespectful attitude, refused to cooperate with staff members, and administered poor patient care, the commissioner’s representative determined that she was terminated for employment misconduct.


            This court reviews the findings of the commissioner’s representative rather than the findings of the unemployment law judge.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  On appeal, the findings made by the commissioner’s representative are viewed in the light most favorable to the commissioner’s representative’s decision and where the evidence reasonably sustains the findings they should not be disturbed.  Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).  Further, this court defers to the ability of the commissioner’s representative to weigh conflicting evidence.  Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995). 

            An employee who is discharged for misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268. 095, subd. 4(1) (2002).  Effective August 1, 2003, the statutory definition for employment misconduct was amended to provide:

Employment misconduct means 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, simply 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.


Minn. Stat. § 268.095, subd. 6(a) (Supp. 2003).  Whether an employee committed the disqualifying misconduct is a mixed question of fact and law.  Colburn v. Pine Portage Madden Bros., Inc., 346 N.W.2d 159, 161 (Minn. 1984).  Whether the employee committed a particular act is a question of fact.  Scheunemann v. Radisson South Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  Whether the act constitutes misconduct is a question of law, which an appellate court reviews de novo.  Ress, 448 N.W.2d at 523.

            West does not deny that some of the complaints against her are truthful.   Rather, she justifies her behavior, arguing that she was often overworked, lacked a nursing assistant, and failed to receive help from other staff members.   On September 24, 2001, West admits that the patient’s family had “some legitimate concerns regarding patient care”; but she stresses that she had an unworkable patient load and no nursing assistant.  Although West denies using any vulgar language in dealing with the family, the commissioner’s representative found that West used profanity to express her frustrations with her workload.   This court defers to the ability of the commissioner’s representative to evaluate conflicting evidence.  Whitehead, 529 N.W.2d at 352.

            West justifies the April 2, 2003 complaint by arguing that she had four patients, little help from other staff members, and no nursing assistant.  West does not deny that the patient received a cold meal tray and that she failed to respond to his repeated call lights for pain medication.  West responds in a similar fashion to the August 8, 2003 complaint by her co-workers that she exhibited a poor attitude and was unwilling to assist other staff members.  Specifically, West explains her behavior by referring to her “impossible working environment” and the lack of help she received from her co-workers.  West’s inability to complete her nursing duties and her poor behavior while at work constitute employment misconduct.

            On June 2, 2003, West was overheard by her co-workers using profanity to refer to another staff member. West denies the incident.  But according to the complaint as well as the testimony of Pamela Johnson, West admitted to making the comment and was warned that further problems would be grounds for disciplinary action.  Similarly, on August 5, 2003, West was overheard speaking in an abusive manner to another co-worker.  Although West denies speaking inappropriately to the co-worker, two other staff members witnessed her behavior.  The continued complaints regarding West’s treatment of both staff and patients provide ample evidence that West violated the standards of behavior that her employer had a right to reasonably expect. 

            Finally, on June 9, 2003, West admits to using the employer’s computer and printer for personal use.  But despite acknowledging that she violated hospital policy, West argues that this was a common practice among her colleagues at the hospital.  Refusal to abide by an employer’s reasonable policies constitutes employment misconduct.  Schmidgall v. FilmTec Corp., 644 N.W 2d. 801, 804 (Minn. 2002).