This opinion will be unpublished and

may not be cited except as provided by

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






Mary Ellen Grossman,





Martin Luther Manor,



Department of Employment and Economic Development,



Filed November 1, 2005


Toussaint, Chief Judge


Agency File No. 15618 04


Mary Ellen Grossman, 4507B Cinnamon Ridge Trail, Eagan, MN 55122 (pro se relator)


Martin Luther Manor, 1401 E. 100th Street, Bloomington, MN 55425 (respondent)


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


            Considered and decided by Toussaint, Chief Judge; Randall, Judge; and Willis, Judge.

U N P U B L I S H E D  O P I N I O N


TOUSSAINT, Chief Judge


            Relator challenges the determination of a senior unemployment review judge (SURJ) that relator was discharged for misconduct and was not eligible for unemployment benefits.  Because the SURJ’s findings have support in the evidence and the conclusion based on them is not contrary to the statutory mandate, we affirm.


            Relator Mary Ellen Grossman, a licensed practical nurse (LPN), was employed by respondent Martin Luther Manor, a nursing home, from March 2004 until her discharge in September 2004.  A department adjudicator determined that relator was discharged for misconduct and was therefore ineligible for unemployment benefits.  Relator appealed, and, after a telephone hearing, an unemployment law judge determined that she had not committed misconduct; as a result of that determination, she received $1,825 in benefits.  Respondent appealed; a senior unemployment review judge (SURJ) determined that relator had committed misconduct and was not entitled to benefits.  Relator now challenges from that determination.

A determination that an employee not entitled to benefits for reasons of misconduct is a mixed question of fact and law.  Colburn v. Pine Portage Madden Bros., 346 N.W. 2d 159, 161 (Minn. 1984).  This court will affirm if the findings of fact “are not without support in the evidence” and if “the conclusion on those facts is not contrary to the statutory mandate.”  Id.  But whether an employee’s acts constitute misconduct is a question of law that this court reviews de novo.  Schmidgall v. Filmtec Corp., 644 N.W. 2d 801, 804 (Minn. 2002). 

            Respondent, a nursing home that provides care for vulnerable adults, is a “facility” within the meaning of Minn. Stat. § 626.5572, subd. 6(2004).  “[F]or an employee of a facility as defined in section 626.5572, aggravated employment misconduct includes an act of patient or resident abuse . . .” Minn. Stat. § 268.0959, subd 6a(2)(2004).  Abuse includes

[c]onduct which is not an accident or therapeutic conduct . . . which produces, or could reasonably be expected to produce physical pain or injury or emotional distress including, but not limited to, the following:

            . . .

            (2) use of repeated or malicious oral, written, or gestured language toward a vulnerable adult  or the treatment of a vulnerable adult which would be considered by a reasonable person to be disparaging, derogatory, humiliating, harassing, or threatening;


                        (3) use of any aversive or deprivation procedure. . . . .


Minn. Stat. § 626.5575, subd. 2(b)(2004).

            Relator’s discharge was based on two interactions with H., a vulnerable senior resident.  As to the first incident, the SURJ found that “[Relator] had to return [H] to her bed after [H] fell three times.  At approximately 1:00 a.m., [relator] physically held and yelled [an obscenity] at [H] while bringing [H] to her room for the third time.  [Relator’s] threatening actions were seen and heard by a visitor who was sitting with a dying relative.”

            The record provides support for this finding.  It includes a nurse’s report that another resident’s granddaughter “saw [relator] standing behind [H.], with her hands under [H’s] armpits.  . . .  As [relator] was holding [H], she was yelling [an obscenity] at her. . . .”  Relator testified that a member of another resident’s family “overheard me.  I don’t remember saying [the obscenity], I’m not going to deny it, because I just don’t remember it.”  The SURJ’s finding on this incident is “not without support in the evidence.”  See Colburn, 346 N.W. 2d  at 161. Because a reasonable person would consider relator’s treatment of H. to be disparaging and humiliating, it was abuse within the meaning of Minn. Stat. § 626.5575, subd. 2(b) (2), and therefore aggravated employee misconduct within the meaning of Minn. Stat. § 268.0959, subd 6a(2).  The incident would thus disqualify relator from receiving benefits.

            As to the second incident, the SURJ found that “Relator] also removed [H’s] walker from [her] room to keep her from getting out of her room.  A nursing assistant found [H] crawling on the floor . . . . [Relator] was aware the resident was on the floor.  [Relator] told the assistant she took the walker to keep [H] in her room because there wasn’t sufficient staff to handle [H’s] falls.”  Again, the finding has support in the record.  A nurse’s report of the incident said “[H] was sitting on the floor and scooting like the crab walk. . . . [Relator] explained that   [H] ‘has been falling many times tonight. . . I took the walker away from her because she won’t stop getting up.  Had to take it away so she wouldn’t fall or get out of bed.’” The director of clinical services testified that relator “did say that she took the resident’s walker away, as she felt it would be safer for her to crawl on the floor than to fall.”  Relator herself testified that, “I felt that, by taking [H’s] walker away, she would be more safe.”  This finding of the SURJ’s is “not without support in the evidence.”  See Colburn, 346 N.W. 2d  at 161.

            Relator’s removal of H’s walker so that she was reduced to scooting around the floor was a deprivation procedure and therefore abuse within the meaning of  Minn. Stat. § 626.5575, subd. 2(b)(3); it constituted aggravated employee misconduct within the meaning of Minn. Stat. § 268.0959, subd 6a(2).  This incident also disqualifies relator from receiving benefits.

            On appeal, relator argues  that the ULJ who heard her side of the story during the telephone conference decided in her favor. But “any involved applicant or involved employer may appeal a decision of an unemployment law judge and obtain a de novo review by a senior unemployment review judge.”  Minn. Stat. § 268.105, subd. 2(a)(2004).  “The decision of the senior unemployment review judge is the final decision of the department.”  Minn. Stat. § 268.105, subd. 2(3) (2004).  Moreover,  “[t]he Minnesota Court of Appeals shall, by writ of certiorari to the department, review the senior unemployment review judge’s decision. . . .”  Minn. Stat. § 268.105, subd. 2(a)(2004). Respondent had the right to seek de novo review of the ULJ’s decision by a SURJ, and this court is restricted to review of the SURJ’s decision.  The SURJ’s findings of fact have support in the record, and the conclusion based on them is not contrary to the statutory mandate.