This opinion will be unpublished and

may not be cited except as provided by

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






Linda M. Trigo,





Lakes Medi-Van, Inc.,



Commissioner of Employment and

Economic Development,



Filed July 19, 2005

Klaphake, Judge


Department of Employment and Economic Development

File No. 10025 04


Sonia M. Sturdevant, Stacy E. Johnston, Reyelts Leighton Bateman Hylden & Sturdevant, Ltd., 332 West Superior Street, Suite 700, Duluth, MN  55802-1801 (for relator)


Lakes Medi-Van, Inc., Detroit Lakes Location, P.O. Box 1053, Detroit Lakes, MN  56502-1053 (respondent employer)


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


            Considered and decided by Willis, Presiding Judge, Klaphake, Judge, and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N


            Relator Linda Trigo challenges the decision by a senior unemployment review judge[1] that she was discharged by respondent Lakes Medi-Van, Inc. for employment misconduct and is therefore disqualified from receiving unemployment benefits.  Because the review judge’s credibility determinations are entitled to deference and because his decision is reasonably supported by evidence in the record, we affirm.


            Our review of unemployment insurance cases is narrow and limited to determining whether the record reasonably supports the decision of the senior unemployment review judge.  Tuff v. Knitcraft, 526 N.W.2d 50, 51 (Minn. 1995); Markel v. City of Circle Pines, 479 N.W.2d 382, 383-84 (Minn. 1992).  We consider the review judge’s findings in a light most favorable to his or her decision, and we give great deference to credibility determinations made by the review judge.  Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996); Jenson v. Dep’t of Econ. Sec., 617 N.W.2d 627, 631 (Minn. App. 2000), review denied (Minn. Dec. 20, 2000).

The issue of whether an employee committed employment misconduct is a mixed question of fact and law.  Schmidgall v. FilmTech Corp., 644 N.W.2d 801, 804 (Minn. 2002).  Whether the employee committed a particular act is a question of fact, but whether the act constitutes misconduct is a question of law subject to de novo review.  Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).

An employee who is discharged for employment misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4 (Supp. 2003).  Employment misconduct is exclusively defined to include

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, simple 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.


Id., subd. 6 (a), (e) (Supp. 2003).  This definition recognizes that employees should not be held to a standard of perfection.  Cf. Risk v. Eastside Beverage, 664 N.W.2d 16, 21 (Minn. App. 2003) (interpreting similar language in 2002 statute).

            Although perfection is not expected, employers have the right to expect that employees will abide by reasonable instructions and directions.  McGowan v. Executive Express Transp. Enters., Inc., 420 N.W.2d 592, 596 (Minn. 1988); Vargas v. Northwest Area Found., 673 N.W.2d 200, 206 (Minn. App. 2004), review denied (Minn. Mar. 30, 2004).  When an employer makes a reasonable request that does not impose an unreasonable burden on the employee, the employee’s refusal to comply with the request constitutes misconduct.  Vargas, 673 N.W.2d at 206; Sandstrom v. Douglas Mach. Corp., 372 N.W.2d 89, 91 (Minn. App. 1985).  A knowing violation of an employer’s directives, policies, or procedures also constitutes employment misconduct because it demonstrates a substantial lack of concern for the employer’s interests.  See, e.g., Schmidgall, 644 N.W.2d at 804; Gilkeson v. Indus. Parts & Serv., Inc., 383 N.W.2d 448, 452 (Minn. App. 1986).

            Here, the review judge made the following findings:  (1) relator, who was employed as a driver to transport disabled clients, received training and knew that she was required to secure her passengers with seat belts; (2) on March 19, 2004, relator’s supervisor warned her that she was required to use seat belts and ensure that her passengers always face the front of the van, and that her failure to follow these rules would be grounds for immediate dismissal; and (3) on May 27, 2004, after receiving a complaint the day before that relator was transporting clients faced sideways in her van, relator’s supervisor discharged her after he observed her transporting a client who was sitting sideways without a seat belt.

Relator denies engaging in any wrongful conduct and claims that she was discharged in retaliation for her complaints of sexual harassment.[2]  The review judge found the testimony of relator’s supervisor to be more credible and rejected relator’s testimony in which she denied transporting clients while sitting sideways and without seat belts.  The review judge further rejected relator’s claim of retaliation and determined that her May 2004 discharge was unrelated to her 2003 complaints of sexual harassment against a co-worker, which the judge found were investigated and resulted in disciplinary action against the co-worker.

Relator “vehemently and repeatedly denies transporting a client sideways or transporting a client without a seat belt” and asserts that her “recollection of the incident is more reasonable and believable than that offered by her employer.”  She attacks the credibility of her supervisor, who testified at the hearing before the unemployment law judge and who documented his warnings to relator in written memoranda that were submitted to the department.  But we must defer to the credibility assessments made by the review judge.  See Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995).

Because (1) the review judge is entitled to make credibility determinations, and (2) the review judge’s decision is reasonably based on the evidence, including the testimony of relator’s supervisor regarding the warning he gave to relator and his observation of her violating that warning, we affirm.


[1]  For unemployment decisions made on or after August 1, 2004, the decision maker formerly known as the commissioner’s representative is now referred to as a “senior unemployment review judge.”  Minn. Stat. § 268.105, subd. 2 (2004); 2004 Minn. Laws ch. 183, § 71.

[2]  Relator further claims that she was discharged based on her race, an issue that was not raised at the hearing before the unemployment law judge and not addressed by the senior unemployment review judge.  Other than her bare allegations, relator has failed to produce any evidence to show that race was a factor in her discharge.