This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2012).

STATE OF MINNESOTA

IN COURT OF APPEALS

A13-2369

Cathy Justice, 

Relator, 

vs. 

Glacial Ridge Hospital, 

Respondent, 

Department of Employment and 

Economic Development, 

Respondent.

Filed September 15, 2014

Affirmed

Hudson, Judge

Department of Employment and

Economic Development

File No. 31512577-3

John E. Mack, Mack & Daby, P.A., New London, Minnesota (for relator)

Glacial Ridge Hospital, Glenwood, Minnesota (respondent)

Lee B. Nelson, Munazza A. Humayun, Department of Employment and Economic 

Development, St. Paul, Minnesota (for respondent department)

Considered and decided by Hudson, Presiding Judge; Stauber, Judge; and Kirk, 

Judge. 
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U N P U B L I S H E D O P I N I O N

HUDSON, Judge

Relator challenges the decision of an unemployment-law judge (ULJ) determining 

that she is ineligible for unemployment benefits because she was discharged for 

employment misconduct. Because substantial evidence supports the ULJ’s determination 

that relator committed employment misconduct by displaying clearly a serious violation 

of the standard of behavior her employer had the right to expect, we affirm. 

FACTS

Relator Cathy Justice was employed as a certified nursing assistant by respondent 

Glacial Ridge Hospital (Glacial Ridge) until she was discharged on August 7, 2013. The 

Minnesota Department of Employment and Economic Development (DEED) initially 

denied her unemployment benefits on the ground that she was discharged for 

employment misconduct; relator sought a hearing before a ULJ. 

At the hearing, relator’s supervisor testified that relator was discharged for 

ongoing insubordination issues, failing to work in a respectful manner, not wanting to 

complete required job duties, and continuing to leave the unit for long periods while on 

the job. The supervisor testified that in relator’s 2008 evaluation, she discussed concerns 

about failing to complete basic patient cares, needing reminders of normal job duties, and 

experiencing conflicts with nursing staff. The supervisor acknowledged that relator 

received mostly average performance reviews; had no performance reviews in 2010, 

2011, or 2013; and did not receive written warnings under the hospital’s progressive 

discipline policy. Relator received a 2012 evaluation that generally rated her as meeting 
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expected standards, but noted that she “ha[d] a way of disappearing” when it was busy 

and “need[ed] to make herself more available.” The supervisor testified that she met with 

relator in April 2013 and discussed her poor job performance. 

The supervisor testified that relator was discharged after several reports from other 

nurses regarding her behavior from dates in January and August 2013. According to 

those reports, relator: (1) told other nurses that she had “other things to do” and was “a 

little busy” so that she could not assist with patient cares; (2) needed reminders to 

perform her normal work duties of giving baths and stocking supply cupboards; (3) failed 

to report that a patient stated that she was feeling ill, when the patient was later found 

slumped over in a recliner; (4) visited with housekeeping staff while patient call lights

were going off and gave a patient a shower more than two hours later than promised; and 

(5) took a break longer than allowed. 

A lead nurse testified that relator had problems with work flow when doing basic 

patient care, requiring “remedial steps.” She testified that, sometimes, relator would not 

respond when a patient call light was on, instead talking on her cell phone or staying in 

the dining area on a different floor. Another nurse testified that, when asked to help, 

relator would at times say that she was busy and act defensive; for instance, when asked

to help change a bed in a different department, relator reported to her supervisor that she 

could not help and appeared upset to be asked. That nurse testified that, on another

occasion, relator did not feed a patient and failed to report that he had not been fed. 
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Relator testified that, in her performance reviews, she was told to “do[] better,” but 

she was not spoken to about all of the issues documented on her discharge. She stated 

that if she failed to answer a call light, it meant she was going to another patient, and that 

she did not refuse to help the nurses, but that “when it’s very busy [she] could be in any 

given place.” She testified that, on the day the patient went unfed, she had placed the tray 

on the charge nurse’s desk and fulfilled her other duties because she believed the charge 

nurse would deliver it. 

The ULJ determined that relator had been discharged because of employment 

misconduct and was therefore disqualified from receiving unemployment benefits. The 

ULJ found that the testimony of Glacial Ridge’s employees was more credible than 

relator’s testimony and that relator’s conduct, which had the potential to seriously 

jeopardize patient health and safety, displayed clearly a violation of the employer’s 

interests and standard of behavior the employer had a right to expect. The ULJ further 

found that, although relator’s supervisor did not provide her with a performance review 

or warnings before discharging her, unemployment law did not require ongoing warnings 

or other disciplinary steps before an employee’s discharge. Relator sought 

reconsideration, which was denied. This certiorari appeal follows. 

D E C I S I O N 

This court reviews a ULJ’s decision to determine whether substantial rights were 

prejudiced because the findings, inferences, conclusions, or decision are unsupported by 

substantial evidence in view of the record as a whole or affected by an error of law. 2014 

Minn. Laws ch. 271, art. 1, § 1 (to be codified at Minn. Stat. § 268.105, subd. 7(d) 
5

(2014)). An employee who is discharged for employment misconduct is ineligible to 

receive unemployment benefits. Minn. Stat. § 268.095, subd. 4(1) (2012). “Employment 

misconduct means 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; or (2) a substantial lack of concern for 

the employment.” Minn. Stat. § 268.095, subd. 6(a) (2012). Employment misconduct 

does not include inefficiency or inadvertence, simple unsatisfactory conduct, poor 

performance because of inability or incapacity, or good-faith errors in judgment. Id.,

subd. 6(b) (2012).

Whether an employee committed misconduct sufficient to disqualify him or her 

from receipt of unemployment benefits presents a mixed question of law and fact. Stagg 

v. Vintage Place Inc., 796 N.W.2d 312, 315 (Minn. 2011). “Whether the employee 

committed a particular act is a fact question, which we review in the light most favorable 

to the decision and will affirm if supported by substantial evidence.” Dourney v. CMAK 

Corp., 796 N.W.2d 537, 539 (Minn. App. 2011). But this court reviews de novo whether 

a particular act amounts to disqualifying misconduct. Stagg, 796 N.W.2d at 315.

Relator argues that her conduct did not rise to the level of disqualifying 

misconduct because it did not amount to insubordination, but was, at best, inefficiency or 

poor performance. To support her argument, she cites a definition of insubordination in a

supreme court case dealing with the statutory requirements for discharging a teacher. See 

Ray v. Minneapolis Bd. of Ed., 295 Minn. 13, 17, 202 N.W.2d 375, 378 (1972). “The

Minnesota courts have held that an employee’s insubordination may constitute 
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misconduct.” Deike v. Gopher Smelting, 413 N.W.2d 590, 592 (Minn. App. 1987). But

the definition of employment misconduct for the purpose of determining eligibility for 

unemployment benefits specified by statute is exclusive, and no other definition applies. 

Minn. Stat. § 268.095, subd. 6(e) (2012). 

Relator also cites a previous common-law definition of employment misconduct 

as requiring “wilful,” “wanton,” or “deliberate” behavior, as stated in Tilseth v. Midwest 

Lumber Co., 295 Minn. 372, 374–75, 204 N.W.2d 644, 646 (1973). The Tilseth 

definition was superseded by statute in 1997 when the Minnesota legislature defined 

employment misconduct. Houston v. Int’l Data Transfer Corp., 645 N.W.2d 144, 149 

(Minn. 2002). Tilseth-grounded cases “remain instructive as to the areas in which the 

Tilseth and [current] statutory definitions overlap.” Lawrence v. Ratzlaff Motor Express 

Inc., 785 N.W.2d 819, 823 (Minn. App. 2010), review denied (Minn. Sept. 29, 2010). 

But even assuming that the current statutory language, which excludes “inefficiency or 

inadvertence” from the definition of employment misconduct, requires more than 

ordinary negligence for employment misconduct, the ULJ did not err by determining that 

relator’s conduct met the statutory standard. See Minn. Stat. § 268.095, subd. 6(b)(2).

“As a general rule, refusing to abide by an employer’s reasonable policies and requests 

amounts to disqualifying misconduct.” Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 

804 (Minn. 2002). Relator’s employer presented evidence of at least five incidents in 

which relator declined to fulfill her job responsibilities. “[An employee’s behavior] may 

be considered as a whole in determining the propriety of her discharge and her 

qualification for unemployment compensation benefits.” Drellack v. Inter–Cnty. Cmty. 
7

Council, Inc., 366 N.W.2d 671, 674 (Minn. App. 1985). Taken as a whole, relator’s

behavior was sufficient to sustain the ULJ’s determination that relator committed 

employment misconduct. 

Relator argues that the record does not contain substantial evidence that the nurses 

gave her direct orders relating to her job responsibilities or that they had authority to do 

so. But evidence of deliberate work avoidance may also support a determination that an 

employee engaged in employment misconduct. See Krantz v. Larco Div., 363 N.W.2d 

833, 834 (Minn. App. 1985) (concluding that relator’s work record of unnecessary delays 

and deliberate work avoidance was sufficient to rise to the level of misconduct under the 

Tilseth definition). Here, the record contains evidence that relator avoided certain job 

duties under circumstances permitting a reasonable inference that she deliberately 

avoided those duties, including affirmatively declining to assist other nurses with 

necessary tasks. 

Relator also maintains that her employer’s failure to follow disciplinary 

procedures by giving warnings about her behavior precludes a determination that she was 

discharged for employment misconduct. The Minnesota Supreme Court, however, has 

held that “an employee’s expectation that the employer will follow its disciplinary 

procedures has no bearing on whether the employee’s conduct violated the standards the 

employer has a reasonable right to expect or whether any such violation is serious.” 

Stagg, 796 N.W.2d at 316. Therefore, we reject relator’s argument. 
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Relator finally argues that the ULJ erred by relying on unreliable and 

uncorroborated hearsay evidence in making a determination of employment misconduct. 

In particular, relator argues that a written summary of complaints about her behavior, 

which was not signed by the complaining nurses or noted in her performance review, 

does not constitute substantial evidence supporting the ULJ’s determination. Applicable 

rules permit a ULJ to “receive any evidence that possesses probative value, including 

hearsay, if it is the type of evidence on which reasonable, prudent persons are accustomed 

to rely in the conduct of their serious affairs.” See 39 Minn. Reg. 147, 154 (Aug. 4, 

2014) (to be codified at Minn. R. 3310.2922 (Supp. 2014)). Under this rule, the fact that 

testimony is based on hearsay or concerns documents not presented in evidence does not 

mandate its exclusion, but is a factor for the ULJ to weigh in judging the credibility of the 

witnesses. See Ywswf v. Teleplan Wireless Servs., Inc., 726 N.W.2d 525, 532–33 (Minn. 

App. 2007) (noting that the ULJ evaluates witness credibility using “factors that bear on 

believability and weight”). Here, in addition to the summary of complaints, the ULJ 

heard testimony from two nurses who worked with relator and corroborated the behavior 

that formed the basis for the complaints. And the ULJ made an express finding that the 

testimony of the employer’s witnesses was more credible than relator’s testimony. This 

court will “defer to [a ULJ’s] credibility determinations . . . that are supported by 

substantial evidence.” Ywswf, 726 N.W.2d at 527. Based on the record presented, the 

ULJ did not err by finding that relator’s conduct clearly displayed a serious violation of 

the standards of behavior her employer had the right to reasonably expect and 
9

determining that she is ineligible for unemployment benefits based on employment 

misconduct. See Minn. Stat. § 268.095, subd. 6(a). 

Affirmed.