This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1654

 

 

LouAnn M. Swift,

Relator,

 

vs.

 

Evangelical Lutheran Good Samaritan Society,

Respondent,

 

Department of Employment and Economic Development,

Respondent.

 

 

Filed September 4, 2007

Affirmed

Lansing, Judge

 

Department of Employment and Economic Development

File No. 5662 06

 

 

LouAnn M. Swift, 108 Mill Road, Waconia, MN 55387-9515 (for relator)

 

The Evangelical Lutheran Good Samaritan Society, C/O TALX UCM Services Inc., P.O. Box 283, St. Louis, MO 63166-0283

 

Lee B. Nelson, Linda A. Holmes, Department of Employment and Economic Development, 1st National Bank Building, 332 Minnesota Street, Suite E200, St. Paul, MN 55101-1351 (for respondent)

 

 

            Considered and decided by Lansing, Presiding Judge; Klaphake, Judge; and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            By writ of certiorari, LouAnn Swift appeals an unemployment law judge’s (ULJ) determination that she was discharged for employment misconduct and is therefore disqualified from receiving unemployment benefits.  Because substantial evidence supports the ULJ’s determination that Swift was discharged for a series of inappropriate actions that violated the standards of behavior that a long-term care facility can reasonably expect from a registered nurse who is providing care for vulnerable adults, we affirm.

F A C T S

            Evangelical Lutheran Good Samaritan Society (Good Samaritan), a long-term care facility, employed LouAnn Swift as a registered nurse from June 2000 to January 2006.  Swift’s primary responsibility was to provide care for vulnerable adults who were residents at the facility.  Good Samaritan discharged Swift on January 27, 2006, because of a series of incidents that started in 2000 and involved Swift’s treatment of residents. 

            A Minnesota Department of Employment and Economic Development adjudicator found that employment misconduct had not been established in the final incident that preceded Swift’s discharge.  Good Samaritan appealed and requested a hearing.

            Following a hearing, an unemployment law judge (ULJ) determined that Swift was discharged for actions that amounted to employment misconduct.  Specifically the ULJ found that, because of continuing complaints about Swift’s conduct toward residents and coworkers, Swift had completed mandatory retraining in April 2005 on issues of abuse and neglect and on residents’ rights.  Despite the April 2005 counseling and retraining, Swift was involved in three additional incidents.  In July 2005 a patient complained that Swift had made inappropriate comments to her and had breached her confidentiality.  In August 2005 a resident complained that Swift had yelled at her when she asked for assistance in using the toilet.  And while Swift was working the overnight shift on January 21-22, 2006, she displayed rude conduct and used abusive language in responding to a resident’s nighttime request for assistance. 

            At the evidentiary hearing, Good Samaritan provided testimony from three employees about incidents over the course of Swift’s employment, but the evidence focused primarily on the January 2006 incident that culminated in the termination of Swift’s employment.  Swift disputed Good Samaritan’s account of the January 2006 incident and also some of the incidents leading up to her discharge.  On appeal, Swift challenges only the ULJ’s factual determination on the January 2006 incident.

            Lisa Beecher, Good Samaritan’s director of nursing, provided a written report from the nurse who had documented the resident’s complaint on the January 21-22 overnight shift.  LS, a vulnerable-adult resident, had gotten up to go to the bathroom and turned on her “call light” to indicate that she needed assistance and also to ask for a glass of water.  According to the complaint, Swift answered through the intercom and told LS that she was turning off the call light and, in a very harsh tone, admonished LS not to turn it on again.  Swift told LS that she would be there shortly.  After arriving at LS’s room, Swift said, “I don’t know why some people think they need all the attention.”  LS replied, “If you feel that way, then just forget about it.”          

            Beecher testified that she twice discussed the incident with LS and that LS’s account of the incident was consistent.  When Beecher discussed the incident with Swift, Swift disputed LS’s account of what had happened.  Because the accounts were conflicting, Beecher asked Steve Smith, Good Samaritan’s human-resources director, to attend her second interview with Swift.  Beecher and Smith both testified at the hearing that Swift did not present a consistent account of the events and contradicted herself in the course of the interview.  Swift first acknowledged that she had said something to LS about her need for attention and that she should not turn on the call light again, but said that LS had not correctly understood what she meant by the comments.  Swift later denied saying anything about attention or the call light. 

            At Good Samaritan’s request, Swift provided a written statement of her version of the events, and she again denied that she had made the statements to LS.  Beecher and Smith reviewed Swift’s written statement with LS, who adamantly responded that the incident happened as she had originally reported.  When Beecher and Smith again spoke to Swift, she first admitted telling LS not to turn on her call light again, but, by the end of the discussion, denied that she had made either of the statements reported by LS. 

           Swift testified at the hearing, consistent with her written statement, that she had not made the statements that formed the basis for LS’s complaint.  She testified that it was her nursing assistant, Jordan Hackbarth, who talked with LS.  Swift said that Hackbarth told her that LS’s call light was on and that LS needed to go to the bathroom.  Swift said that she instructed Hackbarth to tell LS over the intercom that Swift was with another patient, that she would come as soon as possible, and that LS should not turn the call light on again.  Swift denied making the comment about some people needing all of the attention and instead told LS that she was free to put on her call light at any time. 

            Good Samaritan presented rebuttal testimony from Hackbarth.  He testified that he did not have a conversation with Swift about LS needing assistance and that he did not tell LS to turn off her call light.

            In concluding that Swift was discharged from employment for inappropriate treatment of vulnerable adult residents, the ULJ noted that Good Samaritan and Swift presented conflicting evidence about the circumstances that led to Swift’s discharge.  The ULJ specifically found that Good Samaritan’s eyewitness testimony and contemporaneous documentation presented a “more logical and probable sequence of events.”    

            Swift requested reconsideration, disputing the credibility of Good Samaritan’s witnesses.  The ULJ reaffirmed the decision and stated that the credibility of all witnesses had been evaluated in the initial decision, which was reaffirmed on reconsideration.  Swift appeals by writ of certiorari.

D E C I S I O N

            A discharge for employment misconduct results in disqualification from unemployment benefits.  Minn. Stat. § 268.095, subd. 4(1) (Supp. 2005). “Employment misconduct” is intentional, negligent, or indifferent conduct that clearly displays either “a serious violation of the standards of behavior the employer has the right to reasonably expect” or “a substantial lack of concern for the employment.”  Id., subd. 6(a) (2004). Whether an employee committed a particular act is a fact question, but whether the act constitutes employment misconduct is a question of law.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002). 

            We review the ULJ’s decision to determine whether substantial rights were 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.  See Minn. Stat. § 268.105, subd. 7(d) (Supp. 2005) (providing bases on which this court may reverse or modify ULJ’s decision).  We defer to the ULJ’s assessment of credibility and resolution of conflicting testimony.  Skarhus v. Davanni’s, Inc., 721 N.W.2d 340, 344 (Minn. App. 2006); see also Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995) (addressing earlier version of statute in which this court reviewed decision of commissioner’s representative rather than referee).  

            Swift’s argument for reversal is based primarily on issues of credibility.  She contends that LS cannot be believed because she has a documented history of confusion and dementia and that Swift’s account of the events is “the only one that is consistent and truthful.”  For three reasons we conclude that substantial evidence supports the ULJ’s decision that Swift was discharged for employment misconduct.

            First, the question of LS’s mental competence was thoroughly explored at the hearing, and Swift had the opportunity to question Beecher about LS’s dementia.  Good Samaritan has a policy and procedure for conducting workplace investigations, which includes evaluating the credibility of witnesses.  In addition to the multiple interviews conducted with LS, in which LS’s account of events remained substantially unchanged, a written assessment of LS was conducted shortly after the incident.  The assessment indicates that LS has not had problems with delirium since her initial diagnosis in 2003.   

            Based on the consistency of the information that LS provided in multiple interviews about the incident and Beecher’s testimony of LS’s competence and the recent assessment of LS, the ULJ could reasonably conclude that LS’s account of the events on the evening of January 21, 2006, was reliable.

            Second, the final incident that led to Swift’s termination was not an isolated incident.  Swift has a documented history of inappropriate conduct toward residents.  Her personnel file contained twelve entries from October 2000 through April 2005, describing oral and written warnings that Swift received for yelling at residents, raising her voice to them and keeping them awake, becoming short-tempered with them, speaking to residents in a rude manner and making derogatory statements, making inappropriate comments to them, and not answering residents’ call lights. 

            Good Samaritan has previously taken corrective action with Swift for her past conduct.  In July 2003 Swift was ordered to attend mandatory retraining on care of vulnerable adults, dementia, work ethic, and teamwork.  In April 2005 Swift was ordered to attend mandatory retraining on abuse and neglect and residents’ rights.  After completing the last mandatory retraining, Swift committed three instances of inappropriate conduct before Good Samaritan terminated her employment.

            Finally, Swift’s account of events conflicts with the testimony of three Good Samaritan witnesses.  Beecher and Smith testified to the inconsistencies in Swift’s oral statements to them and between Swift’s oral and written statements.  The ULJ specifically based the decision on credibility determinations, and we are required to defer to the ULJ’s assessments of credibility in deciding disputed facts.  Significantly, Hackbarth’s testimony directly contradicts Swift’s account and supports LS’s version of the events.  The ULJ was free to determine that Good Samaritan’s evidence was more credible than Swift’s explanation of the events.

            Based on the substantial evidence contained in the entire record, the ULJ was justified in determining that Swift was terminated for employment misconduct.  Swift’s conduct constituted a serious violation of standards of behavior that a long-term care facility has the right to reasonably expect from a registered nurse caring for vulnerable adults.  See Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 525 (Minn. 1989) (concluding that nurse, whose conduct included failing to act consistently with training and past warnings, committed employment misconduct). 

            Affirmed.