This opinion will be unpublished and

may not be cited except as provided by

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




Ida M. Hicks (McDuffie),



Richfield Health Center,


Commissioner of Economic Security,


Filed February 24, 1998


Kalitowski, Judge

Department of Economic Security

File No. 288UC97

Amy Levine, Judith M. Rush, Levine & Rush, P.L.L.P., 2124 Dupont Avenue South, Minneapolis, MN 55405-2714 (for relator)

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

Considered and decided by Peterson, Presiding Judge, Kalitowski, Judge, and Short, Judge.



Relator Ida M. Hicks McDuffie challenges the determination of the Commissioner of Economic Security's representative that she was disqualified from receiving reemployment insurance benefits because she was terminated by Richfield Health Center (RHC) for misconduct. We affirm.


The findings of the commissioner's representative must "be viewed in the light most favorable to the decision, and if there is evidence reasonably tending to sustain them, they will not be disturbed." White v. Metropolitan Med. Ctr., 332 N.W.2d 25, 26 (Minn. 1983). Reviewing courts, however, are not bound by the commissioner's representative's conclusions of law. Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989). Ultimately, the determination of whether the commissioner's representative properly disqualified relator "from receiving reemployment insurance benefits, however, is a question of law upon which this court remains `free to exercise its independent judgment.'" Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996) (quoting Ress, 448 N.W.2d at 523). The employer has the burden of proving "by the greater weight of the evidence that the employee was guilty of the misconduct charged." Lumpkin v. North Central Airlines, Inc., 296 Minn. 456, 459-60, 209 N.W.2d 397, 400 (1973).

Under the Minnesota Reemployment Insurance statute, an employee who is discharged for misconduct is disqualified from receiving reemployment insurance benefits. Minn. Stat. § 268.09, subd. 1(b) (1996). Misconduct

"is limited to conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies, or ordinary negligence in isolated instances, or good faith errors in judgment or discretion are not to be deemed `misconduct' * * *."

Tilseth v. Midwest Lumber Co., 295 Minn. 372, 374-75, 204 N.W.2d 644, 646 (1973) (quoting Boynton Cab Co. v. Neubeck, 296 N.W. 636, 640 (Wis. 1941)). Whether conduct is bad enough to justify losing both a job and reemployment benefits is primarily a fact-based inquiry. Ress, 448 N.W.2d at 524. The court generally considers one or more of these factors:

(1) whether an employee deliberately violated standards of behavior which the employer has a right to expect of its employee, (2) whether an employee's conduct adversely affected the business or other employee's morale, and (3) whether an employee ignored past warnings.


Generally, if the employer's request is reasonable and does not unreasonably burden the employee, it is misconduct for the employee to refuse the request. Sandstrom v. Douglas Mach. Corp., 372 N.W.2d 89, 91 (Minn. App. 1985). "Moreover, if there is one unique area of employment law where strict compliance with protocol and militarylike discipline is required, it is in the medical field." Ress, 448 N.W.2d at 525.

This court must consider whether relator violated the rules. "Violation of an employer's rules by other employees is not a valid defense to a claim of misconduct." Dean v. Allied Aviation Fueling Co., 381 N.W.2d 80, 83 (Minn. App. 1986).

Here, contrary to the relator's contention, the findings of fact of the commissioner's representative are sustained by the evidence. Thus, we must determine whether, under these facts, relator's actions constitute misconduct as a matter of law.

Under Ress, we consider whether relator deliberately violated standards that her employer had a right to expect of her. Here, the employer had protocols for: (1) documenting PRN medications; (2) meeting the needs of residents; (3) documenting medication administration; and (4) locking the medication cart and narcotics box. The employer determined that relator violated these procedures and requirements and disciplined her accordingly. Following Dean, we do not address relator's argument that other employees violated rules.

After three violations, the employer terminated relator. The prior disciplinary actions were warnings that the employer's procedures were to be taken seriously and followed. Despite these warnings, relator continued to violate protocols in dispensing medications. Further, relator's conduct in refusing to give a resident Tylenol, which resulted in the resident filing a complaint through a social worker, adversely affected the employer's business.

The employer's requests were reasonable, and relator's refusal to follow them constitutes misconduct. See Sandstrom, 372 N.W.2d at 91. The commissioner's representative properly found relator's conduct was a willful and wanton disregard of her employer's interests. Because her actions were not merely inefficiency, unsatisfactory conduct, inadvertencies, or ordinary negligence, we conclude the employer proved by the greater weight of the evidence that relator's failure to follow the employer's procedures constituted disqualifying misconduct.