This opinion will be unpublished and may not be cited except as provided by Minn.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 A15-0474
Georgina Pletcher, Relator,
vs.
River Hill Assisted Living, Inc., Respondent, Department of Employment and Economic Development, Respondent.
Filed December 7, 2015 Affirmed Stauber, Judge Chutich, Judge, dissenting
Department of Employment and Economic Development File No. 32950407-3
Georgina Pletcher, Superior, Wisconsin (pro se relator)
River Hill Assisted Living, Inc., Duluth, Minnesota (respondent employer)
Lee B. Nelson, Tim C. Schepers, Minnesota Department of Employment and Economic Development, St. Paul, Minnesota (for respondent department)
Considered and decided by Chutich, Presiding Judge; Ross, Judge; and
Stauber, Judge. UNPUBLISHED OPINION
STAUBER, Judge
In this certiorari appeal from the decision of the unemployment-law judge (ULJ)
that relator is ineligible for unemployment benefits because she was discharged for
employment misconduct, relator argues that she was a good employee and that the
employer fabricated the allegations against her. We affirm.
FACTS
In 2006, relator Georgina Pletcher began working as a full-time caregiver and cook
for respondent River Hill Assisted Living, Inc., which operates a ten-room home for senior
citizens. Eight years later, on September 28, 2014, relator was discharged for poor
performance and “lack of professionalism.” Relator subsequently applied for
unemployment benefits with respondent Minnesota Department of Employment and
Economic Development (department). The department determined that relator was
ineligible for benefits because she was discharged for employment misconduct. Relator
appealed that determination, and a de novo hearing was conducted.
At the hearing, Mark Stenhammer, the owner of River Hill, testified that relator
generally displayed a poor attitude and that residents complained that relator frequently
argued with them about petty matters. Stenhammer testified that, for example, relator
admonished a resident for eating her dessert before eating the meal and that relator refused
to allow residents in the dining area prior to the scheduled meal time, even if the food was
prepared and ready to be served. Stenhammer also testified that he frequently found relator
watching television in the kitchen when she was supposed to be caring for the residents.
2 And according to Stenhammer, the family members of residents often complained that
relator was neglecting the residents.
Stenhammer testified that he warned relator about her demeanor and lack of
professionalism 10 to 12 times, but she always denied doing anything wrong and “always
had to argue through anything I wanted to talk to her about.” Stenhammer further testified
that he continued to employ relator out of a sense of compassion and because hiring a new
employee to replace her was expensive and time consuming. But, according to
Stenhammer, the “final straw” was a resident’s complaint that “she pays a lot of rent
and . . . always has to put up with a bitchy cook.”
Relator disagreed with Stenhammer’s assessment of her demeanor during her
employment at River Hill. Instead, relator claimed that she was a “good employee” and that
the clients “loved” her. Relator further claimed that she was never warned that she was
failing to meet her employer’s expectations.
The ULJ found that “Stenhammer is more credible regarding [relator’s] conduct
during the employment” and that relator’s behavior “displayed a lack of professionalism
during [her] employment.” The ULJ also found that relator’s conduct was “clearly a
serious violation of the employer’s reasonable expectations.” Thus, the ULJ concluded that
relator was ineligible for unemployment benefits because she was discharged for
employment misconduct. Relator requested reconsideration, and the ULJ affirmed the
decision. This certiorari appeal followed.
3 DECISION
Relator challenges the ULJ’s determination that she committed employment
misconduct. On certiorari appeal from a decision by the ULJ, we “may reverse or modify
the [ULJ’s] decision if the substantial rights of the petitioner may have been prejudiced
because the findings, inferences, conclusion, or decision are” not supported by substantial
evidence in the record or are affected by an error of law. Minn. Stat. § 268.105, subd.
7(d)(4)-(5) (2014).
An applicant who is discharged from employment because of employment
misconduct is ineligible for unemployment benefits. Minn. Stat. § 268.095, subd. 4(1)
(2014). “Employment misconduct” is defined as “any intentional, negligent, or
indifferent conduct . . . that displays clearly: (1) a serious violation of the standards of
behavior the employer has the right to reasonably expect of the employee; or (2) a
substantial lack of concern for the employment.” Id., subd. 6(a) (2014). 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 an employee committed a
particular act is a question of fact. Skarhus v. Davvani’s Inc., 721 N.W.2d 340, 344
(Minn. App. 2006). But whether a particular act demonstrates employment misconduct is
a question of law, which this court reviews de novo. Stagg v. Vintage Place Inc., 796
N.W.2d 312, 315 (Minn. 2011).
The dissent concludes that relator’s conduct did not rise to the level of
employment misconduct. Although we acknowledge that whether relator’s conduct rose
to the level of employment misconduct is a close issue, it is not the issue raised by
4 relator. Rather, relator challenges the ULJ’s findings that she committed the particular
acts that the ULJ determined to be misconduct, arguing that she was a good employee
and Stenhammer fabricated the allegations against her.
Relator’s assertions implicate credibility determinations, and it is well settled that
“[c]redibility determinations are the exclusive province of the ULJ and will not be
disturbed on appeal.” Skarhus, 721 N.W.2d at 345. Here, Stenhammer testified that
relator generally displayed a “bad attitude” and that the residents and their family
members frequently complained about relator. Stenhammer also testified that relator was
frequently observed watching television in the kitchen rather than caring for the residents.
If believed, this testimony establishes that relator’s conduct constituted a serious violation
of the standards of behavior that Stenhammer had the right to reasonably expect from his
employees. Although relator denied the allegations that she acted in an unprofessional
manner, the ULJ found Stenhammer’s testimony to be more credible because he
“presented a highly plausible chain of events that would lead to his decision to discharge”
relator, and “presented several examples of poor conduct displayed by [relator] during the
employment.” The evidence in the record substantially supports the ULJ’s credibility
determination, and we defer to the ULJ’s credibility determinations. See Skarhus, 721
N.W.2d at 345. Therefore, the ULJ did not err by concluding that relator was ineligible
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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 A15-0474
Georgina Pletcher, Relator,
vs.
River Hill Assisted Living, Inc., Respondent, Department of Employment and Economic Development, Respondent.
Filed December 7, 2015 Affirmed Stauber, Judge Chutich, Judge, dissenting
Department of Employment and Economic Development File No. 32950407-3
Georgina Pletcher, Superior, Wisconsin (pro se relator)
River Hill Assisted Living, Inc., Duluth, Minnesota (respondent employer)
Lee B. Nelson, Tim C. Schepers, Minnesota Department of Employment and Economic Development, St. Paul, Minnesota (for respondent department)
Considered and decided by Chutich, Presiding Judge; Ross, Judge; and
Stauber, Judge. UNPUBLISHED OPINION
STAUBER, Judge
In this certiorari appeal from the decision of the unemployment-law judge (ULJ)
that relator is ineligible for unemployment benefits because she was discharged for
employment misconduct, relator argues that she was a good employee and that the
employer fabricated the allegations against her. We affirm.
FACTS
In 2006, relator Georgina Pletcher began working as a full-time caregiver and cook
for respondent River Hill Assisted Living, Inc., which operates a ten-room home for senior
citizens. Eight years later, on September 28, 2014, relator was discharged for poor
performance and “lack of professionalism.” Relator subsequently applied for
unemployment benefits with respondent Minnesota Department of Employment and
Economic Development (department). The department determined that relator was
ineligible for benefits because she was discharged for employment misconduct. Relator
appealed that determination, and a de novo hearing was conducted.
At the hearing, Mark Stenhammer, the owner of River Hill, testified that relator
generally displayed a poor attitude and that residents complained that relator frequently
argued with them about petty matters. Stenhammer testified that, for example, relator
admonished a resident for eating her dessert before eating the meal and that relator refused
to allow residents in the dining area prior to the scheduled meal time, even if the food was
prepared and ready to be served. Stenhammer also testified that he frequently found relator
watching television in the kitchen when she was supposed to be caring for the residents.
2 And according to Stenhammer, the family members of residents often complained that
relator was neglecting the residents.
Stenhammer testified that he warned relator about her demeanor and lack of
professionalism 10 to 12 times, but she always denied doing anything wrong and “always
had to argue through anything I wanted to talk to her about.” Stenhammer further testified
that he continued to employ relator out of a sense of compassion and because hiring a new
employee to replace her was expensive and time consuming. But, according to
Stenhammer, the “final straw” was a resident’s complaint that “she pays a lot of rent
and . . . always has to put up with a bitchy cook.”
Relator disagreed with Stenhammer’s assessment of her demeanor during her
employment at River Hill. Instead, relator claimed that she was a “good employee” and that
the clients “loved” her. Relator further claimed that she was never warned that she was
failing to meet her employer’s expectations.
The ULJ found that “Stenhammer is more credible regarding [relator’s] conduct
during the employment” and that relator’s behavior “displayed a lack of professionalism
during [her] employment.” The ULJ also found that relator’s conduct was “clearly a
serious violation of the employer’s reasonable expectations.” Thus, the ULJ concluded that
relator was ineligible for unemployment benefits because she was discharged for
employment misconduct. Relator requested reconsideration, and the ULJ affirmed the
decision. This certiorari appeal followed.
3 DECISION
Relator challenges the ULJ’s determination that she committed employment
misconduct. On certiorari appeal from a decision by the ULJ, we “may reverse or modify
the [ULJ’s] decision if the substantial rights of the petitioner may have been prejudiced
because the findings, inferences, conclusion, or decision are” not supported by substantial
evidence in the record or are affected by an error of law. Minn. Stat. § 268.105, subd.
7(d)(4)-(5) (2014).
An applicant who is discharged from employment because of employment
misconduct is ineligible for unemployment benefits. Minn. Stat. § 268.095, subd. 4(1)
(2014). “Employment misconduct” is defined as “any intentional, negligent, or
indifferent conduct . . . that displays clearly: (1) a serious violation of the standards of
behavior the employer has the right to reasonably expect of the employee; or (2) a
substantial lack of concern for the employment.” Id., subd. 6(a) (2014). 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 an employee committed a
particular act is a question of fact. Skarhus v. Davvani’s Inc., 721 N.W.2d 340, 344
(Minn. App. 2006). But whether a particular act demonstrates employment misconduct is
a question of law, which this court reviews de novo. Stagg v. Vintage Place Inc., 796
N.W.2d 312, 315 (Minn. 2011).
The dissent concludes that relator’s conduct did not rise to the level of
employment misconduct. Although we acknowledge that whether relator’s conduct rose
to the level of employment misconduct is a close issue, it is not the issue raised by
4 relator. Rather, relator challenges the ULJ’s findings that she committed the particular
acts that the ULJ determined to be misconduct, arguing that she was a good employee
and Stenhammer fabricated the allegations against her.
Relator’s assertions implicate credibility determinations, and it is well settled that
“[c]redibility determinations are the exclusive province of the ULJ and will not be
disturbed on appeal.” Skarhus, 721 N.W.2d at 345. Here, Stenhammer testified that
relator generally displayed a “bad attitude” and that the residents and their family
members frequently complained about relator. Stenhammer also testified that relator was
frequently observed watching television in the kitchen rather than caring for the residents.
If believed, this testimony establishes that relator’s conduct constituted a serious violation
of the standards of behavior that Stenhammer had the right to reasonably expect from his
employees. Although relator denied the allegations that she acted in an unprofessional
manner, the ULJ found Stenhammer’s testimony to be more credible because he
“presented a highly plausible chain of events that would lead to his decision to discharge”
relator, and “presented several examples of poor conduct displayed by [relator] during the
employment.” The evidence in the record substantially supports the ULJ’s credibility
determination, and we defer to the ULJ’s credibility determinations. See Skarhus, 721
N.W.2d at 345. Therefore, the ULJ did not err by concluding that relator was ineligible
for unemployment benefits because she was discharged for employment misconduct.
Affirmed.
5 CHUTICH, Judge (dissenting)
I respectfully dissent from the majority’s legal conclusion that the unemployment
law judge correctly concluded that Georgina Pletcher committed employment
misconduct. Given the remedial nature of the unemployment-compensation statutes, and
the description of the conduct at issue here, especially when placed in the context of the
parties’ eight-year employment relationship, I do not believe that Georgina Pletcher’s
behavior rose to the level of employment misconduct that would disqualify her from
receiving benefits.
Because the Minnesota Unemployment Compensation Law is “remedial in nature
and must be applied in favor of awarding unemployment benefits, . . . any statutory
provision that would preclude an applicant from receiving benefits must be narrowly
construed.” Minn. Stat. § 268.031 (2014); Jenkins v. American Exp. Financial Corp.,
721 N.W.2d 286, 289 (Minn. 2006). The majority correctly sets out the definition of
employment misconduct contained in Minn. Stat. § 268.095, subd. 6(a)(1) (2014).
Another statutory provision specifically states, however, that “[r]egardless of paragraph
(a),” “simple unsatisfactory conduct” or “conduct that is a consequence of the applicant’s
inability or incapacity” is not employment misconduct.” Id. at subd. 6(b)(3), (5).
Whether an employee “was properly disqualified from receipt of unemployment
compensation benefits is a question of law on which we are free to exercise our
independent judgment.” Jenkins, 721 N.W.2d at 289.
Here the record shows that Pletcher, who was sixty when discharged, had worked
for River Hill Assisted Living for eight years since it opened in 2006. She worked as the
D-1 sole cook and also as a care giver for the ten residents who lived in the facility. The
record shows that the main reason that she was discharged was for a lack of
professionalism and a difficulty in keeping a positive attitude. Examples given by her
employer included arguing with residents about not eating their dessert first before their
meal or about the quality of the meatloaf that was served. According to her employer,
this difficulty in keeping a positive attitude had been a constant, “probably the whole
time she was employed here.” The employer also noted that Pletcher did not respond to
its telephone calls or texts when she was off-duty. The last straw for the employer before
it fired her on September 28, 2014, was when a resident complained in August that she
“pays a lot of rent and . . . always has to put up with a bitchy cook.”
Pletcher, who was representing herself at the hearing, did not present any evidence
from any other witness to counter the charge of unprofessionalism until she requested
reconsideration, which the unemployment law judge found was too late under the rules.1
Even accepting the record as developed at the hearing and honoring the unemployment-
law judge’s credibility determinations, however, Pletcher’s negative attitude seems more
akin to simple unsatisfactory performance than to employment misconduct, especially
given the employer’s testimony that her conduct had not changed appreciably in all the
time that she had worked for River Hills. See Bray v. Dogs & Cats Ltd., 679 N.W.2d 182
(Minn. App. 2004) (reversing determination of disqualification under earlier version of
1 Upon reconsideration, she submitted letters from two family members of River Hills residents who praised her care and from the nurse who supervised her the last five years at River Hill. The supervisor “highly recommended” Pletcher stating that she “has an excellent rapport with people of all ages . . . is reliable and responsible and takes great pride in what she does.”
D-2 the statute finding that relator was discharged for inefficient, unsatisfactory conduct, and
poor performance due to inability). If her behavior displayed a serious violation of the
standards that the employer had a right to reasonably expect, it is difficult to believe that
she would have been employed by River Hill as long as she was. Because the record
evidence does not support the legal conclusion that Pletcher was discharged for
employment misconduct, I would reverse the unemployment-law judge’s ineligibility
determination.
D-3