Robert T. O’Neill, 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This opinion will be unpublished and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
A17-0492

Robert T. O’Neill,
Relator,

vs.

Ebenezer Realty Services Company,
Respondent,

Department of Employment and Economic Development,
Respondent.

Filed November 6, 2017
Affirmed
Hooten, Judge

Department of Employment and Economic Development
File No. 35095808-3

Robert T. O’Neill, Bloomington, Minnesota (pro se relator)

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

Ebenezer Realty Services Company, St. Louis, Missouri (respondent employer)

Considered and decided by Bratvold, Presiding Judge; Bjorkman, Judge; and
Hooten, Judge.

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U N P U B L I S H E D O P I N I O N
HOOTEN, Judge
Relator challenges the decision of an unemployment law judge (ULJ) that he i s
ineligible for unemployment benefits. Because there is substantial evidence in the record
which supports the ULJ’s determination that relator committed employment miscond uct
for which he was discharged, we affirm.
FACTS
Relator Robert O’Neill worked as a transportation driver for respondent Ebenezer
Realty Services Company from January 2011 to November 2016. Ebenezer Realty
provides assisted living and nursing services, including transportation, to elderly and
vulnerable adults.
A series of incidents beginning in August 2016 led to O’Neill’s termination in
November 2016. On August 9, O’Neill drove several passengers, some of whom use
wheelchairs, to an event. O’Neill failed to properly secure one of the wheelchair
passengers according to safety procedure. A coworker noticed the mistake, and O’Neill
then stopped the bus to secure the passenger. O’Neill was instructed to review Ebenezer
Realty’s safety procedures and received a written warning on August 17.
On August 29, Ebenezer Realty received a call from a driver who reported that one
of its bus drivers, later identified as O’Neill, made a lane change without signaling and
nearly caused a collision with the driver. That same day, O’Neill transported a passenger
who used a wheelchair but did not tightly fasten the wheelchair to the bus. Because the
wheelchair was not proper ly attached and the seatbelt was not correctly buckled, the
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wheelchair moved while O’Neill drove and the seatbelt made it difficult for the passenger
to breathe. O’Neill received another written warning for these two events.
On September 1, O’Neill backed his bus into a stationary generator after becoming
distracted by a coworker, causing minor damage to the bus. O’Neill received a final written
warning for this incident, meaning that another written warning within the next 12 months
would result in his termination.
On November 3, O’Neill transported passengers to an event. As he assisted two
passengers in exiting the bus, he experienced an episode of back and leg pain. Due to his
pain, O’Neill allowed the two passengers, one of whom suffered from de mentia, to walk
without him from the bus to a community center facility. Both passengers arrived to the
facility without incident. After the pain subsided, O’Neill got back onto the bus and drove
the remaining passenger to his destination . Although he k new that he had violated
Ebenezer Realty’s expectations by not escorting the two individuals to the facility, he did
not report the incident.
A staff member at the facility later notified Ebenezer Realty that O’Neill did not
escort these passengers from the bus to the facility. As part of Ebenezer Realty’s “door -
to-door” customer service policy, it expected that its drivers would escort passengers from
the bus to their destination. Ebenezer Realty terminated O’Neill’s employment on
November 4.
O’Neill applied for unemployment benefits, but respondent Minnesota Department
of Employment and Economic Development (DEED) determined that he is ineligible for
benefits because his actions constituted aggravated employment misconduct. O’Neill
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appealed this determination to a ULJ. The ULJ conducted an evidentiary hearing at which
O’Neill testified. The ULJ determined that O’Neill’s actions during these events
demonstrated a clear violation of Ebenezer Realty’s reasonable expectations for employee
standards of behavior. As a result, the ULJ concluded that O’Neill committed employment
misconduct, and that he is not eligible for benefits. O’Neill requested reconsideration of
the decision, and the ULJ affirmed. This certiorari appeal follows.
D E C I S I O N
O’Neill argues that the ULJ erred in denying him unemployment benefits because
his conduct does not rise to the level of employment misconduct under the statute.
Additionally, his argument implies that his conduct falls under the unsatisfactory conduct
and incapacity exceptions to employment misconduct. We may reverse, remand, or modify
a ULJ’s decision if a relator’s substantial rights have been prejudiced because the findings,
conclusions, or decision are affected by an error of law, lack the support of substantial
evidence in the record, or are arbitrary or capricious. Minn. Stat. § 268.105, subd. 7(d)
(Supp. 2017).
“Whether an employee engaged in conduct that disqualifies the employee from
unemployment benefits is a mixed question of fact and law.” Stagg v. Vintage Place Inc.,
796 N.W.2d 312, 315 (Minn. 2011) (quotation omitted). Whether an employee committed
a particular act presents a question of fact. Skarhus v. Davanni’s Inc. , 721 N.W.2d 340,
344 (Minn. App. 2006). We will not disturb the ULJ’s factual findings if the findings are
supported by substantial evidence in the record. Ywswf v. Teleplan Wireless Servs., Inc. ,
726 N.W.2d 525, 529 (Minn. App. 2007). But, whether an employee’s particular actions
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constitute employment misconduct is a question of law, which we review de novo.
Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).
An employee is ineligible for unemployment benefits if he is discharged for
employment misconduct. Minn. Stat. § 268.095, subd. 4(1) (2016). Employm ent
misconduct is statutorily defined as “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.” Id., subd. 6(a) (Supp. 2017).
Here, the ULJ found that O’Neill’s actions on August 9, August 29, and September
1 were not intentional. But the ULJ correctly noted that a person’s conduct does no t need
to be intentional to constitute employment misconduct. See id. ; see also Swanson v.
Columbia Transit Corp. , 311 Minn. 538, 539, 248 N.W.2d 732, 733 (1976) (explaining
that series of negligent acts may amount to employment misconduct). Failing to adequately
secure passengers, especially vulnerable adults, and driving negligently is the type of
conduct that placed these individuals at risk and falls below an employer’s reasonable
expectations for employee behavior.
Regarding the incident on November 3, the ULJ recognized that while O’Neill was
not at fault for suffering back and leg pain, he could have handled the situation differently,
especially considering that one of the passengers suffered from dementia. O’Neil l argues
that escorting passengers from the bus to their destination was not a formal requirement
but rather part of best practices under Ebenezer Realty’s polices. But O’Neill
acknowledged in his prehearing submissions that he knew escorting the passenge rs was
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expected and that he could be discharged for his failure to provide this assistance to his
passengers. He also admitted at the hearing that he should have reported the incident to
management but failed to do so. These admissions themselves indicat e that O’Neill’s
conduct fell below Ebenezer Realty’s reasonable expectations for employee behavior.
O’Neill refers to Bray v. Dogs & Cats Ltd., 679 N.W.2d 182 (Minn. App. 2004), as
“somewhat analogous” to his case, and he asserts that he should not be denied
unemployment benefits when the record suggests that he tried to be a good employee but
failed to perform up to Ebenezer Realty’s satisfaction. See Bray, 679 N.W.2d at 185
(holding that relator who “attempted to be a good employee but just wasn’t up to the job
and was unable to perform her duties to the satisfaction of the employer” did not commit
employment misconduct). This argument also implies that his conduct may be withi n the
statutory exceptions to employment misconduct for “simple unsatisfactory conduct” or
“conduct that was a consequence of the applicant’s inability or incapacity.” See Minn.
Stat. § 268.095, subd. 6(b)(3), (5) (Supp. 2017).
But Bray is distinguishable. The evidence in the record demonstrates that although
O’Neill understood Ebenezer Realty’s policies, his repeated failure to follow these policies
placed vulnerable adults at risk. For example, after the August 9 incident, O’Neill reviewed
equipment safety procedures and was immediately corrected on how to secure a wheelchair
on a bus. But on August 29, O’Neill failed to properly secure a wheelchair passenger ,
which caused the passenger to have difficulty breathing. And, while O’Neill’s flare -up of
back and leg pain on November 3 may have made him physically unable to escort the
passengers to the community center facility, he could have taken other steps to ensure their
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safety. For instance, he could have called out for assistance from someone at the facility
or have asked the passengers to wait until he could retrieve his phone. Moreover, the ULJ’s
decision demonstrates that the ULJ evaluated O’Neill’s conduct as a whole and did not
base his decision solely on O’Neill’s actions on November 3.
Because the evidence substantially supports the ULJ’s decision that O’Neill
committed employment misconduct, we conclude that the ULJ did not err in determining
that O’Neill is ineligible for unemployment benefits.
Affirmed.