Debra Barrett, Relator v. Jourdain/Perpich Extended Care Facility, Inc., Department of Employment and Economic Development

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A16-0050
Debra Barrett,
Relator,
vs.
Jourdain/Perpich Extended Care Facility, Inc.,
Respondent,
Department of Employment and Economic Development,
Respondent.
Filed August 22, 2016
Affirmed in part and remanded
Reyes, Judge
Department of Employment and Economic Development
File No. 33860168-3
Debra Barrett, Redby, Minnesota (pro se relator)
Jourdain/Perpich Extended Care Facility, Redlake, Minnesota (respondent employer)
Lee B. Nelson, Department of Employment and Economic Development, St. Paul,
Minnesota (for respondent Department)
Considered and decided by Schellhas, Presiding Judge; Reyes, Judge; and
Muehlberg, Judge.*
*
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
UNPUBLISHED OPINION
REYES, Judge
In this unemployment-compensation appeal, relator challenges a determination by
an unemployment-law judge (ULJ) on reconsideration that relator is ineligible for
unemployment benefits because she was discharged from her employment for
employment misconduct. We affirm in part and remand.
FACTS
In July 1993, relator Debra Barrett began her employment with respondent
employer Jourdain/Perpich Extended Care Facility, Inc. Relator worked full time in
housekeeping. In July 2015, relator assaulted N.A., the director of nursing. That same
day, respondent employer terminated relator for the assault.
Relator applied for and was denied unemployment benefits by respondent
Minnesota Department of Employment and Economic Development (DEED) on the basis
that she was discharged for employment misconduct.1 Relator appealed DEED’s
determination of ineligibility, and a ULJ held an evidentiary hearing. At the hearing,
relator testified on her own behalf. Respondent-employer’s project manager, M.Z., and
current administrator, Y.W., testified on its behalf.
Following the hearing, the ULJ determined that relator is ineligible for
employment benefits because she was terminated for employment misconduct. Relator
1
Relator’s determination of ineligibility from DEED explicitly stated that she was
ineligible for unemployment benefits and that her “conduct was not aggravated
employment misconduct because the conduct did not amount to a gross misdemeanor or a
felony. However, the conduct was employment misconduct.”
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filed a request for reconsideration, and the ULJ affirmed its initial determination. This
certiorari appeal follows.
DECISION
When reviewing the ULJ’s decision, we may affirm, reverse, modify, or remand
the decision if it is in violation of constitutional provisions, in excess of statutory
authority or jurisdiction of the department, made upon unlawful procedure, affected by an
error of law, unsupported by substantial evidence, or arbitrary and capricious. Minn.
Stat. § 268.105, subd. 7(d) (Supp. 2015). The purpose of the Minnesota Unemployment
Insurance Law is to assist those who are “unemployed through no fault of their own.”
Minn. Stat. § 268.03, subd. 1 (2014). It “is remedial in nature and must be applied in
favor of awarding benefits,” and any statutory provision precluding receipt of benefits
“must be narrowly construed.” Minn. Stat. § 268.031, subd. 2 (2014). There is no
burden of proof in unemployment-insurance proceedings, nor is there equitable or
common-law denial or allowance of benefits. Minn. Stat. § 268.069, subds. 2, 3 (2014).
Appellate courts “review the ULJ’s factual findings in the light most favorable to
the decision.” Stagg v. Vintage Place, Inc., 796 N.W.2d 312, 315 (Minn. 2011)
(quotation omitted). We will affirm so long as substantial evidence supports the ULJ’s
findings. Ywswf v. Teleplan Wireless Servs., Inc., 726 N.W.2d 525, 529 (Minn. App.
2007). We have previously concluded that substantial evidence supports the findings
where witness “testimony that was credited was corroborated by other testimony and
evidence, while another’s testimony that was not credible was deemed not believable
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based on the facts asserted.” Id. at 532 (citing Saif Food Market v. Comm’r, Dep’t of
Health, 664 N.W.2d 428, 430-31 (Minn. App. 2003)).
I. Relator is not entitled to unemployment benefits.
We construe relator’s argument to be that she is entitled to unemployment benefits
because she worked for respondent employer for 23 years. We disagree.
An employee who is discharged from employment for employment misconduct is
ineligible to receive unemployment benefits. Minn. Stat. § 268.095, subd. 4(1) (2014).
Employment misconduct is “any intentional, negligent, or indifferent conduct, on the job
or off the job that displays clearly: (1) a serious violation of the standards of behavior the
employer has the right to reasonably expect of the employee.” Id., subd. 6(a) (2014).
Under Minnesota law, violent behavior in the workplace constitutes misconduct
“because it creates danger in the workplace and it interferes with the employer’s
business.” Shell v. Host Int’l, 513 N.W.2d 15, 17 (Minn. App. 1994). And “employers
may reasonably expect employees to refrain from engaging in even single acts of
combative physical contact.” Potter v. N. Empire Pizza, Inc., 805 N.W.2d 872, 878
(Minn. App. 2011), review denied (Minn. Nov. 15, 2011). “Whether an employee
engaged in conduct that disqualifies the employee from unemployment benefits is a
mixed question of fact and law.” Stagg, 796 N.W.2d at 315 (quotation omitted). While
the employee’s involvement in the specific act is an issue of fact, Skarhus v. Davanni’s
Inc., 721 N.W.2d 340, 344 (Minn. App. 2006), whether the facts establish disqualifying
employment misconduct is a question of law that we review de novo. Stagg, 796 N.W.2d
at 315.
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As an initial matter, relator fails to cite statutory authority supporting her argument
premised on equitable principles. Nonetheless, there is no equitable allowance of
benefits for unemployment benefits. Minn. Stat. § 268.069, subd. 3. As such, relator’s
argument that she is entitled to benefits based on her years of service fails.
Moreover, the record supports the ULJ’s factual findings and legal conclusion.
Relator was initially involved in a verbal disagreement with another employee, K.J. The
argument between relator and K.J. escalated. Subsequently, N.B., the administrator at
that time, informed relator that she needed to go home. While relator was preparing to go
home, N.A. called relator a derogatory racial slur.2 In retaliation, relator punched N.A. in
the head, causing N.A. to hit a copy machine and a chair. N.A. went to the hospital and
was diagnosed with a concussion.
While relator claims that she does not remember punching N.A., she does
acknowledge that she “lost it” because she felt picked on at work and because she had
been called a racial slur. Relator’s conduct was contrary to respondent employer’s
personnel policy, which sets forth expectations for professional conduct, and was 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(a)(1); see also Potter, 805
N.W.2d at 878. Because the evidence supports the ULJ’s findings, we conclude that
2
Our conclusion that relator engaged in employment misconduct should not be construed
to condone in any way N.A.’s use of a derogatory racial slur against relator. The use of it
by a director of nursing is particularly improper.
5
relator was discharged for the employment misconduct of violent behavior in the
workplace and therefore is ineligible for unemployment benefits. Id., subd. 4(1).
II. The ULJ erred by failing to address whether relator’s conduct amounts to
aggravated employment misconduct.
Under Minnesota law, aggravated employment misconduct is “the commission of
any act, on the job or off the job, that would amount to a gross misdemeanor or felony if
the act substantially interfered with the employment or had a significant adverse effect on
the employment.” Minn. Stat. § 268.095, subd. 6a(a)(1) (2014). An employee who is
discharged for aggravated employment misconduct is ineligible to receive unemployment
benefits and is subject to cancellation of the wage credits that she would have earned
from that employment. Id., subds. 4(2), 10(c) (2014).
The ULJ found that relator assaulted N.A. and gave her a concussion. But the ULJ
did not make a determination as to whether relator’s conduct constituted aggravated
employment misconduct, which DEED argues was error. We agree. DEED initially
asserts that “the level of crime charged, or whether the individual is charged at all” is not
dispositive of a ULJ’s conclusion of aggravated employment misconduct. DEED cites
Manos v. First Bank Minnehaha to support this proposition. 357 N.W.2d 372 (Minn.
App. 1984) (concluding that Manos’s failure to report overpayment in her paychecks
“could fall within the theft statute and thus can be considered gross misconduct
connected with her employment”). DEED further argues that, the ULJ must first
determine, based on a preponderance of the evidence, whether the act constitutes a gross
misdemeanor or a felony under Minnesota law. Then the ULJ must determine whether
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the “act substantially interfered with the employment or had a significant adverse effect
on the employment.” Minn. Stat. § 268.095, subd. 6a(a)(1).
The record reflects that the ULJ considered the severity of relator’s crime, and
stated that the severity “would make a difference.” And, while the parties disagreed as to
the severity of the charged crime, the record reflects that relator was charged with
misdemeanor second-degree assault under Red Lake Tribal Code. No evidence was
presented as what the presumptive charge would have been under Minnesota state law.
But the ULJ does not need to determine the severity of relator’s actual assault
charge. Manos provides that the ULJ may determine whether relator’s conduct could fall
“within the [assault] statute and thus can be considered gross misconduct.” Manos, 357
N.W.2d at 376. Under Minnesota law, third-degree-felony assault is one in which
“substantial bodily harm” is inflicted on another. Minn. Stat. § 609.223, subd. 1 (2014).
Substantial bodily harm is defined as “bodily injury . . . which causes a temporary but
substantial loss or impairment of the function of any bodily member or organ.” Minn.
Stat. § 609.02, subd. 7a. (2014).
Here, the ULJ found that relator punched N.A. in the head, causing a concussion.3
Other than finding that N.A. suffered a concussion, the ULJ failed to make any additional
findings as to whether her conduct “would amount to a gross misdemeanor or felony if
the act substantially interfered with the employment or had a significant adverse effect on
3
According to the record, a concussion is defined as “a type of injury to the head that
causes a minor injury to the brain. Concussions can cause symptoms ranging from brief
confusion to a true loss of consciousness (being knocked out).”
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the employment.” Minn. Stat. § 268.095, subd. 6a(a)(1). Therefore, the limited record
does not contain sufficient facts for us to determine whether or not relator committed
aggravated employment misconduct. And we are not a fact-finding court. See Stiff v.
Associated Sewing Supply Co., 436 N.W.2d 777, 779 (Minn. 1989) (“[A]n appellate
court’s limited scope of review circumscribes additional fact finding by it.”). Because
the ULJ failed to make specific factual findings regarding N.A.’s condition and because
the ULJ failed to reach a legal conclusion regarding aggravated employment misconduct,
we remand on this issue to the ULJ for further proceedings consistent with this opinion.
On remand, the ULJ may open the record and hold an evidentiary hearing to develop the
record, at its discretion.
Affirmed in part and remanded.
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