This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Barbara J. Ahlberg,



Catholic Charities,


Commissioner of Economic Security,


Filed July 8, 1997


Huspeni, Judge

Department of Economic Security

File No. 4615 UC96

Barbara J. Ahlberg, 158 Riverwoods Lane, Burnsville, MN 55337 (Pro se relator)

John L. Devney, Briggs and Morgan, P.A., W-2200 First National Bank Building, St. Paul, MN 55101 (for Respondent Catholic Charities)

Kent E. Todd, Department of Economic Security, 390 North Robert Street, St. Paul, MN 55101 (for Respondent Commissioner of Economic Security)

Considered and decided by Crippen, Presiding Judge, Huspeni, Judge, and Willis, Judge.



Relator challenges the decision of the Commissioner of Economic Security's representative disqualifying her from receiving reemployment insurance benefits because her employer discharged her for misconduct. The record reasonably supports the representative's determination that Ahlberg deliberately violated her employer's protocol when she performed the assessment in question and that she took documents belonging to her employer and refused to comply with the employer's requests to examine the documents. We affirm.


Relator Barbara Ahlberg worked as a part-time staff nurse for St. Joseph's Home for Children (the Home), a division of respondent Catholic Charities. On March 29, 1996, while Ahlberg was conducting an assessment on a young child, she discovered a spot of blood on the child's genitalia. Ahlberg asked the child about it and continued her exam. Ahlberg found bruises. Ahlberg admitted that she then suspected sexual abuse. Ahlberg took pictures of the injuries and sent the child to Hennepin County Medical Center (HCMC) for an evaluation.

The Home's abuse protocol required that "at the first indication of possible sexual abuse, stop exam, do not question child, send to HCMC for SA [sexual abuse] workup to be done by staff at the hospital who are trained to do such exams." If unclear as to how she should proceed on sexual abuse matters, an employee should contact a medical doctor at HCMC. The purpose of this protocol was to avoid having a child undergo unnecessary trauma from multiple examinations and to avoid the loss of evidence.

On several occasions prior to this examination, Ahlberg informed her supervisor, Judy Gaetz, that she did not agree with Catholic Charities' procedures. Ahlberg insisted that she was qualified to perform sexual abuse exams; Gaetz informed her that while that may be true, she was not employed for that purpose and was not to do such exams. Ahlberg's performance evaluation in May 1995 indicated that despite clear direction, she had challenged and ignored the protocol for addressing abuse concerns. Ahlberg had also expressed her intent to follow her own rules. She was given an oral warning reminding her of the protocol.

On April 9, 1996, Catholic Charities suspended Ahlberg. On that day Ahlberg had several documents in her office mailbox. After the meeting, Ahlberg took items from her mailbox and began to leave. Lori Squires, director of quality assurance, and Douglas Goke, an administrator, asked Ahlberg if they could examine the papers she was carrying out of the agency. They believed that some of the documents were confidential and were not to leave the building. Ahlberg refused. The possibly confidential documents were not in her box after she left and they were never located.

Catholic Charities discharged Ahlberg because she did not follow the protocol during the assessment and because she took its documents from the premises. Ahlberg filed a claim for reemployment insurance benefits with the Minnesota Department of Economic Security. The department determined that Ahlberg was disqualified. Ahlberg appealed.

The reemployment insurance judge reversed the department's determination. Catholic Charities appealed. The commissioner's representative reversed and disqualified Ahlberg from benefits. The representative concluded that Ahlberg deliberately violated procedure and that she took possibly confidential records from the employer's premises at the time of her suspension. The representative concluded that the employer's requests to examine the records were reasonable because the employer believed those records concerned its patients. Ahlberg filed a writ of certiorari seeking this court's review.


In reemployment insurance cases, an appellate court reviews the findings of the commissioner's representative, not the decision of the reemployment insurance judge. Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995). "Whether an employee has committed disqualifying misconduct is a mixed question of fact and law." Fujan v. Ruffridge-Johnson Equip., 535 N.W.2d 393, 395 (Minn. App. 1995) (citing Colburn v. Pine Portage Madden Bros., 346 N.W.2d 159, 161 (Minn. 1984)). The commissioner's representative's fact findings must be viewed in the light most favorable to the decision below, and an appellate court will not disturb those findings if there is evidence reasonably tending to support them. Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989). This court gives deference to such findings even though they may involve the credibility of witnesses. Tuff, 526 N.W.2d at 51. The court is not bound by the representative's conclusions of law, however, and whether events constitute misconduct is ultimately a question of law. Ress, 448 N.W.2d at 523.

An individual who is discharged by his employer for misconduct is disqualified from receiving reemployment insurance benefits. Minn. Stat. § 268.09, subd. 1(b) (1996). The employer has the burden of proving, by a greater weight of the evidence, that an employee is disqualified from receiving benefits based on misconduct. Lumpkin v. North Cent. Airlines, 296 Minn. 456, 459-60, 209 N.W.2d 397, 400 (1973).

1. Violation of Protocol

Violation of an employer's work rules constitutes misconduct. Dean v. Allied Aviation Fueling Co., 381 N.W.2d 80, 84 (Minn. App. 1986). Willful disregard for standards of behavior that an employer has a right to expect of its employee is also misconduct. Ress, 448 N.W.2d at 525.

Ahlberg argues that the evidence failed to show that she intentionally violated her employer's procedures. We disagree. Catholic Charities' protocol directed that sexual abuse exams were not to be performed at the Home. At the first indication of possible sexual abuse, employees were instructed to stop an exam, refrain from questioning the child, and send the child to HCMC.

Several employees, including other nurses, stated that at the time Ahlberg noted blood in the genital area, she should have immediately stopped the exam. Ahlberg did not follow that guideline. When she noticed the blood, she inquired about it. The child stated that her mother or father had "done it with a broom." Ahlberg did not stop at that point either, but spread the child's genitalia and buttocks and examined those areas.

Ahlberg claims that even if she did violate the employer's protocol, she did not have the subjective intent to disregard her employer's policies deliberately or wantonly. She stated that she had to determine the source of the blood and claimed that she believed she was required to photograph physical abuse. The representative did not believe Ahlberg's claims, however, and determined that she intentionally violated the protocol. We must defer to the representative's credibility determinations. Tuff, 526 N.W.2d at 51.

Moreover, the record supports the representative's findings. Ahlberg had informed Gaetz on several occasions prior to this assessment that she did not agree with the employer's procedures. In addition, Ahlberg's performance evaluation on May 22, 1995, indicated that despite clear direction, she had challenged and ignored the employer's protocol for addressing abuse concerns in the past. The evaluation also noted that Ahlberg had expressed her intent to follow her own rules regardless of supervising directives. Ahlberg's supervisors gave her an oral warning reminding her of the protocol. This evidence reasonably supports the conclusion that Ahlberg deliberately violated her employer's procedures.

2. Removal of Confidential Documents

Refusal to comply with an employer's reasonable request may also constitute misconduct. Loewen v. Lakeland Mental Health Ctr., 532 N.W.2d 270, 274 (Minn. App. 1995). What is a reasonable request will vary according to the circumstances of each case. See Sandstrom v. Douglas Mach. Corp., 372 N.W.2d 89, 92 (Minn. App. 1985) (request to sign classified information agreement was reasonable); Hollar v. Richard Mfg. Co., 346 N.W.2d 692, 694 (Minn. App. 1984) (request for minimal amount of overtime was not so unreasonable as to justify refusal).

The record supports the determination of the commissioner's representative that Ahlberg refused to comply with the employer's reasonable requests to examine the documents she was about to remove from the employer's premises. The record indicates that on the day of the suspension meeting, Ahlberg had a number of possibly confidential documents in her office mailbox. After the meeting, Ahlberg took items from her mailbox and began to leave. Squires and Goke asked Ahlberg if they could examine the papers she was carrying out of the agency; Ahlberg refused. The documents were no longer in her box after she left and were never located. It was impossible to determine at the hearing whether any of the documents Ahlberg removed were, in fact, the property of Catholic Charities or contained confidential information that was not to be removed from the premises. Nonetheless, the reasonableness of the request to view those documents was amply demonstrated.