Jennifer Hursey, Relator,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1319

Jennifer Hursey,
Relator,

vs.

Homeservices Lending, LLC,
Respondent,

Department of Employment and Economic Development,
Respondent.

Filed April 17, 2017
Affirmed
Schellhas, Judge

Department of Employment and Economic Development
File No. 34564336-2

Peter Knapp, Thomas Mueller (certified stude nt attorney), Mitchell Hamline Law Clinic,
St. Paul, Minnesota (for relator)

Homeservices Lending, LLC, West Des Moines, Iowa (respondent employer)

Lee B. Nelson, Benjamin Jones, Department of Employment and Economic Development,
St. Paul, Minnesota (for respondent department)

Considered and decided by Johnson, Presiding Judge; Schellhas, Judge; and
Bjorkman, Judge.

2
U N P U B L I S H E D O P I N I O N
SCHELLHAS, Judge
Relator challenges an unemployment-law judge’s determination that she is
ineligible to receive unemployment benefits because she was discharged for misconduct.
We affirm.
FACTS
Relator Jennifer Hursey began employm ent at Homeservices Lending, LLC on
August 3, 2015. Homeservices terminated her employment on November 20, 2015. Hursey
applied for unemployment benefits from respondent Minnesota Department of
Employment and Economic Development (DEE D). DEED determined that Hursey was
ineligible for unemployment benefits because she was discharged from her employment
for misconduct. Hursey appealed the determination.
An unemployment-law judge (ULJ) conduc ted a telephonic hearing, during which
Hursey, one of her supervisors, and Homeservices’ human-resources director testified. The
ULJ found that Homeservices’ discrimination and harassment policy “prohibit[ed] verbal,
written, or physical conduct th at degrad[ed] or show[ed] hostility or dislike toward an
individual because of her race or color.” The ULJ also found that Homeservices’ code of
conduct instructed employees to be sensitive to how their words or behavior could be
perceived by others and to avoid actions and comments that could be taken as threatening,
hurtful, offensive, or insulting. And the ULJ found that “Homeservices discharged Hursey
because she sent an email from her work account to [a cowo rker], describing a coworker
as a ‘disrespectful colored girl’ who demands respect for all the wrong reasons.” The ULJ

3
concluded that “[a]n employer has the right to reasonably expect an employee not to make
derogatory comments regarding a coworker’s race,” and determined that Hursey’s conduct
rose to the level of employment misconduct. The ULJ therefore decided that Hursey was
ineligible for unemployment benefits and affirmed the decision upon reconsideration. This
certiorari appeal follows.
D E C I S I O N
A person who is discharged from employ ment is not eligible to receive
unemployment benefits if the person was discharged for misconduct. Minn. Stat.
§ 268.095, subd. 4 (2016). “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)
(2016). The statutory definition of “empl oyment misconduct” is exclusive. Wilson v.
Mortg. Res. Ctr., Inc., 888 N.W.2d 452, 458 (Minn. 2016).
“In unemployment benefits cases, [appellate courts] review the ULJ’s findings of
fact in the light most favorable to the decisi on and will not disturb t hose findings as long
as there is evidence in th e record that reasonably tends to sustain them.” Id. at 460
(quotations omitted). “The que stion of whether an employ ee engaged in conduct that
disqualifies him or her from unemployment benefits is a mixed question of fact and law.”
Id. “Whether a particular act constitutes di squalifying conduct is a question of law
[appellate courts] review de novo.” Id. Appellate courts “will narrowly construe the
disqualification provisions of the statute in li ght of their remedial nature, as well as the

4
policy that unemployment compensation is paid only to those persons unemployed through
no fault of their own.” Stagg v. Vintage Place Inc. , 796 N.W.2d 312, 315 (Minn. 2011)
(quotation omitted).
Hursey argues that her alleged refusal to abide by Homeservices’ policies did not
constitute misconduct because her e-mail did not rise to the level of a serious violation of
employment expectations, was a single incident , and was a good-faith error in judgment.
And she asserts that no direct evidence show s that the coworker wh o received her e-mail
was offended by the statement for which she was terminated . Hursey also argues that
Homeservices terminated her not because sh e violated its discrimination and harassment
policy but, rather, because she complained to human resources about her supervisor.
Serious violation of Homeservices’ reasonable expectations
“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). An employee who know ingly violates a reasonable policy of the
employer commits misconduct. Id. at 806. Here, the ULJ found that Hursey was aware of
Homeservices’ discrimination and harassment policy and code of conduct. Homeservices’
discrimination and harassment policy prohibite d harassment, which it defined “as verbal,
written or physical conduct that degrades or shows hostility or dislike toward an individual
because of his or her race, [or] color.” Hursey admitted that she was aware of the workplace
policy but believed that her co nduct did not violate the polic y. The ULJ also found that
Hursey used the phrase , “disrespectful colored girl,” to insult a coworker’s race and that
Hursey’s conduct was intentional. When asked why she identif ied the coworker’s race in

5
her e-mail, Hursey explained that she is “about details . . . [and] it’s just a normal thing for
me to provide every detail that I can.” The ULJ did not find this testimony credible, and
we defer to the ULJ’s credibility determination. See Brisson v. City of Hewitt, 789 N.W.2d
694, 696 (Minn. App. 2010) (stating that this court defe rs to the ULJ’s credibility
determinations).
Single incident
Although Hursey concedes that the fact that Home services terminated her
employment because of a single incident is not dispositive, she argues that the single-
incident nature of her conduct “is an important fact that must be considered in deciding
whether the conduct rises to the level of employment misconduct,” Minn. Stat. § 268.095,
subd. 6(d) (2016), and th at the ULJ failed to properly cons ider the single-incident nature
of her conduct.
Hursey argues that her single incident of sending the e-mail was not misconduct
because it could not have rais ed concern regarding her ability to perform the essential
functions of her job. Courts have considered whether a single incident undermines an
employee’s ability to do the employee’s job and ha ve held that a single incident rises to
misconduct where it causes the employer to question whether the employee can be trusted
to perform the job’s essential functions. See Wilson, 888 N.W.2d at 462–63 (noting that
employers have right to reasonably expect applicants to tell truth during employment
process and concluding that employee’s employment-application misstatement constituted
misconduct); Skarhus v. Davanni’s Inc. , 721 N.W.2d 340, 344 (Minn. App. 2006)
(concluding that cashier who stole food engaged in misconduct when employer no longer

6
trusted her to handle money and accurately account for items sold). But Hursey fails to cite
any legal authority that requi res us to hold that a singl e incident cannot constitute
misconduct unless the incident involves an employer’s ability to trust an employee to
perform her job’s essential functions. We therefore reject Hursey’s argument that her single
incident of sending the e-mail did not cons titute misconduct because it did not implicate
her ability to perform her job.
We also conclude that the ULJ did not err by failing to consider or give adequate
weight to the single-incident nature of Hursey’s conduct in determining that Hursey
engaged in employment misconduct. Minnesota Statutes section 268.095, subdivision 6(d),
does not provide a single-incident exception. Potter v. N. Empire Pizza, Inc., 805 N.W.2d
872, 875–76 (Minn. App. 2011), review denied (Minn. Nov. 15, 2011); see Minn. Stat.
§ 268.095, subd. 6(d). Instead, it “directs that the ULJ afford weight to the fact of the single-
incident nature of the conduct without di recting that the conduct be construed as
misconduct or not.” Potter, 805 N.W.2d at 876. But it does not require a ULJ to specifically
acknowledge or explain that the ULJ considered the single-incident nature of the conduct.
Minn. Stat. § 268.095, subd. 6(d).
Here, during the telephonic hearing, a witness for the employer testified that Hursey
was discharged for one reason—the statement in her e-mail, which violated Homeservices’
code of conduct and discrimination and harassment policy. In the order of affirmation, the
ULJ explicitly considered the fact that the discharge occurred because of a single incident.
The ULJ explained that while the comment in cluded in the e-mail was a single incident,

7
the conduct was intentional and a serious violation of Home services’ reasonable
expectations.
Based on our review of the record, we conclude that the ULJ’s findings are
supported by substantial evidence, that the ULJ did not err by concluding that Hursey used
the phrase in her e-mail to insult her cowork er’s race, and that Hursey’s conduct was
intentional and displayed a serious violation of the standards of behavior and policies that
Homeservices has the right to reasonably expect of her.
Good-faith error in judgment
Hursey also argues that her behavior was not misconduct because it was a good-
faith error in judgment. Section 268.095 ex cludes from misconduct “good faith errors in
judgment if judgment was required.” Minn . Stat. § 268.095, subd . 6(b)(6) (2016). The
sending of the e-mail cannot be deemed misconduct if (1) Hursey sent the e-mail because
of a good-faith error in judgment and (2) judgment was required.
Hursey argues that compliance with Homeservices’ discrimination and harassment
policy requires the use of judgment because it does not contain an exhaustive list of all
language or behavior that c ould be deemed a violation. We reject the argument that an
employer’s failure to include an exhaustiv e list of all possible prohibited behavior
precludes an employee from engaging in misco nduct by violating the employer’s policy.
Here, Hursey was aware of Homeservic es’ policy prohibiting discrimination and
harassment. She signed an acknowledgment th at she reviewed the policy that defined
harassment “as verbal, written or physical co nduct that degrades or shows hostility or
dislike toward an individual because of his or her race, [or] color.” And she knew that

8
Homeservices’ code of conduct cautioned employees against using language that could be
taken as threatening, hurtful, offensive, or insulting.
Hursey maintains that the wo rd “colored” is not offensiv e, but the ULJ found that
Hursey used the phrase “disrespectful colored girl” to in sult a coworker’s race. We agree
with the ULJ’s determination. Furthermore, the Eighth Circuit has referred to the term
“colored girl” as derogatory. See White v. Honeywell, Inc., 141 F.3d 1270, 1273 (8th Cir.
1998) (referring to “colored girl” as derogatory name). We conclude that when Hursey sent
the e-mail in which she referred to a coworker as “a disrespectful colored girl,” she did not
make a good-faith error in judgment.
Hursey’s complaint to human resources
The ULJ found that Homeservices discharg ed Hursey because of her e-mail, not
because she complained to human resources about her supervisor. Homeservices’ human-
resources director testified th at Hursey was discharged fo r one reason—the statement in
her e-mail, which was of significant concern and in direct viola tion of Homeservices’
discrimination and harassment policy and code of conduct. The ULJ found the director’s
testimony credible because it was straightforward, plausibl e, and consistent with the
documentation provided by Homeservices and Hursey. We de fer to the ULJ’s credibility
determination. Substantial evidence supports the ULJ’s finding that Hursey was discharged
because of her e-mail. We will not disturb this finding.

9
In conclusion, because Hursey seriously violated her employer’s reasonable
expectations, the ULJ did not err in determining that Homeservices discharged Hursey for
misconduct. Hursey therefore is ineligible for unemployment benefits.
Affirmed.