This opinion will be unpublished and

may not be cited except as provided by

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







Derek A. Hebrink,





Crows Nest Programs, Inc.,



Department of Employment and Economic Development,



Filed July 18, 2006

Affirmed; motion denied

Willis, Judge


Department of Employment and Economic Development

File No. 253105


Todd M. Kleinhuizen, Johnson, Moody, Schmidt & Kleinhuizen, P.A., 320 South First Street, P.O. Box 913, Willmar, MN  56201 (for relator)


Mary K. Martin, 2411 Francis Street, South St. Paul, MN  55075 (for respondent Crows Nest Programs, Inc.)


Linda A. Holmes, Department of Employment and Economic Development, First National Bank Building, 332 Minnesota Street, Suite E200, St. Paul, MN  55101-1351 (for respondent Department)


            Considered and decided by Lansing, Presiding Judge; Randall, Judge; and Willis, 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 of the senior unemployment-review judge (SURJ) that relator was discharged for employment misconduct and is therefore disqualified from receiving unemployment benefits.  Because the record reasonably supports the SURJ’s findings and those findings support the conclusion that relator was discharged for employment misconduct, we affirm.  On appeal, relator moves to strike the appendix to respondent employer’s brief.  Because the appendix contains evidence that was properly before the SURJ, we deny the motion.


Relator Derek Hebrink was employed as a human-services technician by respondent Crows Nest Programs, Inc. (Crows Nest) from March 2002 until December 3, 2004.  Crows Nest provides residential-living services to persons with developmental disabilities.

            In November 2004, Hebrink’s former co-worker reported to Crows Nest an incident that occurred in July 2004, involving Hebrink, the co-worker, and a vulnerable-adult resident of the home at which Hebrink worked.  The following facts are undisputed:  Hebrink was training the reporting co-worker, a female human-services technician.  Hebrink noticed the resident enter his bedroom and suspected that the resident was masturbating.  The resident often engaged in excessive masturbation, and there was concern about skin breakdown on his genitals.  Hebrink had the female technician enter the resident’s room with him, and he “suggested” to the resident that the resident get out of bed.  The resident got out of bed and stood, unclothed, in front of Hebrink and the female technician.  Hebrink testified that he looked for skin breakage and instructed the resident to put on his clothes, wash his hands, and return to the home’s common area. 

Crows Nest’s administrator testified that the resident’s skin condition could be monitored without making him get out of bed to stand naked in front of staff; for example, the resident’s skin could have been checked at a time when he was supervised in the bathroom.  And the administrator testified that the home’s program coordinator said that only male staff are expected to make such an observation.

After its investigation, Crows Nest terminated Hebrink’s employment.  Hebrink applied for unemployment benefits, and the department adjudicator determined that Hebrink committed aggravated employment misconduct and was disqualified from receiving unemployment benefits.  Hebrink appealed the decision, and an unemployment-law judge (ULJ) reversed the adjudicator’s determination.  Crows Nest appealed from the ULJ’s decision.  A SURJ reversed that decision and concluded that Hebrink committed employment misconduct and was disqualified from receiving unemployment benefits.  This certiorari appeal followed.


On appeal from an unemployment-benefits determination, this court reviews the decision of the SURJ rather than the decision of the ULJ.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  The SURJ’s findings of fact are viewed in the light most favorable to the decision, and if there is evidence reasonably tending to sustain them, they will not be disturbed.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).

A person who was discharged from his employment because of employment misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4(1) (2004).  Whether an employee committed employment misconduct is a mixed question of fact and law.  Schmidgall, 644 N.W.2d at 804.  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 that act constitutes disqualifying misconduct is a question of law, reviewed de novo.  Schmidgall, 644 N.W.2d at 804.

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 clearly 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.


Minn. Stat. § 268.095, subd. 6 (2004).

            Here, the SURJ made findings that (1) “female staff did not perform physical examinations of the genitals of male residents and that type of examination normally took place when the resident was bathing or using the bathroom”; and (2) Hebrink’s testimony that he brought the female technician into the room for a training exercise was not credible.

These findings are supported by the administrator’s testimony and by the letter explaining Hebrink’s release from his employment, which states that Crows Nest

believe[s] that making a vulnerable adult get out of bed and stand naked before a male and female staff to observe his penis is in fact disparaging, derogatory and humiliating.  There were a number of alternative methods to get this information to a new staff which would not have included this incident. . . .  [I]t is the manner in which this ‘training’ occurred that violated Crows Nest Programs, Inc. policy and for which [Hebrink] was released from employment. 


The SURJ’s factual findings are supported by the record. 

The SURJ concluded that Hebrink’s conduct of making a resident stand naked in front of Hebrink and the female trainee “clearly displayed a serious violation of the standards of behavior an employer has the right to reasonably expect of an employee and a substantial lack of concern for his employment.”  We review this conclusion de novo. 

Relying on the Minnesota Supreme Court’s decision in Houston v. Int’l Data Transfer Corp., 645 N.W.2d 144, 150 (Minn. 2002), Hebrink argues that to support a finding that he committed intentional misconduct, Crows Nest must show that he “intended to violate standards with which the employer had a right to expect compliance.”  But in 2003, the Houstoncourt’s interpretation of employment misconduct was superseded when the legislature changed the statutory definition of employment misconduct.  2003 Minn. Laws 1st Spec. Sess. ch. 3, art. 2, § 13, at 1473-74. 

The applicable definition of employment misconduct includes “any intentional, negligent, or indifferent conduct . . . that displays clearly a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee.”  Minn. Stat. § 268.095, subd. 6.  Intentional conduct is conduct that is deliberate and not accidental.  Houston, 645 N.W.2d at 149.  The SURJ found that Hebrink “gestured for the resident to get out of bed.”  This is a deliberate act.

            Individuals who receive services because they are developmentally disabled have the right to be free from maltreatment, to be treated with courtesy and respect, and to personal privacy.  Minn. Stat. § 245B.04, subd. 3(3), (4), (14) (2004).  And although Crows Nest lacked a specific, written policy addressing this particular resident’s compulsive masturbation, Crows Nest had a stated policy that “[c]onsumers of the Crows Nest Programs shall be treated and cared for with respect.”  Because Hebrink’s conduct displayed a lack of respect for the resident’s privacy and dignity, Hebrink displayed clearly a serious violation of the standards of behavior that Crows Nest had the right to reasonably expect of him. 

            Hebrink argues that, at most, he made a good-faith error in judgment.  The SURJ did not believe Hebrink’s testimony that this incident occurred during a training exercise.  We defer to the SURJ’s credibility determinations.  Munro Holding, LLC v. Cook, 695 N.W.2d 379, 384 (Minn. App. 2005).  While the resident’s skin breakdown might have been a legitimate concern, there was no legitimate reason to make him stand naked in front of two staff to inspect his genitals.  We conclude that Hebrink’s conduct, therefore, was not the result of a good-faith error in judgment. 

Finally, Hebrink argues that the SURJ’s decision was “tainted by improperly considered evidence.”  On appeal, Hebrink moves to strike the appendix to Crows Nest’s brief because it contains evidence, including a handwritten statement by Hebrink’s co-worker, that was not submitted to the ULJ.

A SURJ shall not, except for purposes of deciding whether to remand a matter to a ULJ for a further evidentiary hearing, consider any evidence that was not submitted at the hearing before the ULJ.  Minn. Stat. § 268.105, subd. 2(d) (2004).  Here, Crows Nest argued before the SURJ that the matter should be remanded because the co-worker’s written statement raises the question of whether Hebrink sexually harassed the co-worker.  Crows Nest was entitled to submit the new evidence in support of its request for a remand.  Because Crows Nest’s May 18 submission to the SURJ was authorized and is part of the agency record, there is no ground to strike Crows Nest’s appendix. 

But the SURJ was authorized to consider the new evidence only as a basis for Crows Nest’s request for a remand.  Hebrink argues that the SURJ improperly considered his co-worker’s handwritten statement.  He bases this assertion on the SURJ’s “unfounded commentary” that “the evidence is not clear as to whether Hebrink intended to humiliate the resident or if he was just showing off in front of the female technician.”

The SURJ’s decision does not mention the co-worker’s handwritten statement.  Crows Nest argued and the DEED adjudicator found that Hebrink intentionally abused the resident, thereby committing aggravated employment misconduct.  But the SURJ determined that “a preponderance of the evidence does not lead us to conclude Hebrink intentionally abused a vulnerable adult”; he found that Hebrink committed employment misconduct but not aggravated employment misconduct.  

Abuse of a vulnerable adult, which would support a determination of aggravated employment misconduct, includes “[c]onduct which is not an accident or therapeutic conduct . . . which produces or could reasonably be expected to produce . . . emotional distress including . . . treatment of a vulnerable adult which would be considered by a reasonable person to be disparaging, derogatory, humiliating, harassing, or threatening.”  Minn. Stat. § 626.5572, subd. 2(b)(2) (2004); see Minn. Stat. § 268.095, subd. 6a(a)(2) (2004).  Because the SURJ considered this statute to determine whether Hebrink committed aggravated employment misconduct, a discussion of whether Hebrink intended to humiliate the resident was relevant to the SURJ’s decision and that discussion does not show that the SURJ relied on the employee’s handwritten statement in making his decision.  The record reasonably supports the conclusion that Hebrink committed employment misconduct and is, therefore, disqualified from receiving unemployment benefits.

Affirmed; motion denied.