This opinion will be unpublished and

may not be cited except as provided by

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






Cynthia Khan,





ACR Homes, Inc.,



Department of Employment and Economic Development,



Filed ­­­December 26, 2006


Dietzen, Judge


Department of Employment and Economic Development

Agency File No. 803405


Cynthia Khan, 2080 Coon Rapids Boulevard Northwest - #4, Coon Rapids, MN 55433 (pro se relator)


ACR Homes, Inc., c/o James A. Nelson, 2437 Rice Street, Roseville, MN 55113 (pro se respondent)


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


            Considered and decided by Kalitowski, Presiding Judge; Lansing, Judge; and Dietzen, 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 unemployment law judge (ULJ) that relator had been discharged for misconduct and, therefore, was disqualified from receiving unemployment benefits, arguing that the determination was not supported by the record.  Because the ULJ’s determination that relator was discharged for misconduct is supported by substantial evidence in the record as a whole, we affirm.


Relator Cynthia Khan worked for respondent ACR Homes (ACR) from July 29, 2001, until April 12, 2005.  At the time of her discharge, Khan worked as an evening supervisor at an ACR facility called Fallgold, which is a group home for people with mental retardation and other disabilities.  Dustin Tefs was the residential supervisor at the home, and his wife was also part of the night staff.  All of the residents at Fallgold required 24-hour supervision and were scheduled to leave in vans between 7:00 a.m. and 7:15 a.m. for various daily activities.

            Khan’s shift was from 10:00 p.m. until 7:00 a.m., and during her shift, Khan was responsible for washing dishes, emptying the dishwasher, cleaning countertops and the stovetop, doing laundry for the residents, and cleaning and restocking the bathrooms.  Her task between 5:30 a.m. and 7:00 a.m. was to get three residents up and ready for their day.  Khan normally had two residents ready to go and was helping the third one when her supervisor, Dustin Tefs, started work at 6:00 a.m.  Before April 4, 2005, Khan performed these duties in a manner satisfactory to ACR.

            Tefs testified that when he started work on April 4, 8, and 11, 2005, Khan was helping one resident get ready but that none of the other residents were up, dishes in the sink and dishwasher were dirty, the countertops and stovetops were dirty, the laundry was not done, and the bathrooms were not cleaned.  On April 8, Khan wrote a note to Dustin Tefs stating, “Dustin, I don’t think it’s fair when I’m working w/you & your wife in the mornings.  It seems as if I’m doing 90% of the work & getting residents ready (4) residents, making beds, sometimes helping with breakfast, folding clothes and you guys are only doing 10% of the work.”  She also called Heather Thomas, program director, and scheduled a meeting for April 12, 2005.

            On April 12, Khan met with Dustin Tefs, Heather Thomas, and ACR’s policy specialist, Kristin Pitchford.  When confronted about her failure to complete her work on the three dates in April, the three witnesses testified that Khan stated that she was “testing” Tefs.  Khan denied that she made this statement and denied that she did not complete her work in a satisfactory manner. 

            Following the hearing, the ULJ concluded that Khan “did not do her assigned tasks” on April 4, 8, and 11, 2005, and that Khan did state at the meeting that she was “testing” Tefs.  The ULJ further concluded that this was not a single incident but a pattern of behavior over three work shifts and that Khan’s refusal to complete all of her job duties was a serious violation of accepted workplace standards.  Thus, the ULJ concluded that Khan was discharged due to employment misconduct and disqualified from benefits.  Khan requested reconsideration, and the ULJ affirmed its earlier findings of fact and decision.  This certiorari appeal followed.


            Khan challenges the ULJ’s decision, arguing that the conclusion that she engaged in employment misconduct is not supported by the record.  On certiorari appeal this court may affirm the ULJ’s decision, remand it for further proceedings, or reverse or modify it if the relator’s substantial rights “may have been prejudiced because the findings, inferences, conclusion or decision are . . . affected by . . . error of law” or “unsupported by substantial evidence in view of the entire record as submitted.”  Minn. Stat. § 268.105, subd. 7(d) (Supp. 2005).

            Whether an employee committed misconduct is a mixed question of fact and law. Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  Whether the employee committed a particular act is a question of fact.  Skarhus v. Davanni’s Inc., 721 N.W.2d 340, 344 (Minn. App. 2006).  Findings of fact are reviewed in the light most favorable to the ULJ’s decision, and deference is given to the ULJ’s determinations of credibility.  Id.  This court will not disturb the ULJ’s factual findings when those findings are supported by substantial evidence.  Id.; Minn. Stat. § 268.105, subd. 7(d)(5).  But whether an act by the employee constitutes disqualifying misconduct is a question of law, which we review de novo.  Schmidgall, 644 N.W.2d at 804.

An employee who was discharged for misconduct is disqualified from receiving unemployment benefits. Minn. Stat. § 268.095, subd. 4(1) (2004). “Employment misconduct” means:

[A]ny 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(a) (2004). Thus, a knowing violation of an employer’s directives, policies, or procedures constitutes employment misconduct because it demonstrates a substantial lack of concern for the employer’s interests.  Schmidgall, 644 N.W.2d at 804.  “A single incident where an employee deliberately chooses a course of action adverse to the employer can constitute misconduct.”  Ress v. Abbott Nw. Hosp., Inc., 448 N.W.2d 519, 524 (Minn. 1989).  And a “pattern of failing to follow policies and procedures and ignoring directions and requests” is misconduct.  Gilkeson v. Indus. Parts & Serv., Inc., 383 N.W.2d 448, 452 (Minn. App. 1986).

Khan challenges the ULJ’s findings that she willfully neglected her assigned duties on April 4, 8, and 11, 2005, and that she stated she was “testing” Tefs to three ACR employees at her discharge meeting on April 12, 2005.  But two witnesses—Tefs and Thomas—testified that Khan’s assigned duties were not completed on the dates in question.  Further, three witnesses—Tefs, Thomas, and Pitchford—testified that Khan specifically stated she was “testing” Tefs and ACR.  While Khan argued that she offered testimony contradicting the version of events offered by the other witnesses, this court defers to the credibility determinations made by the fact-finder.  Skarhus, 721 N.W.2d at 344.

            Since determinations of witness credibility are within the competence of the ULJ, and the evidence from the record supports the  ULJ’s findings that Khan did state she was “testing” Tefs and willfully neglected her assigned duties on the dates in question, we conclude that her omissions amounted to a pattern of behavior that qualifies as “misconduct” under Minn. Stat. § 268.095, subd. 4(1).