Joanne Lane, 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This opinion will be unpublished and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
A17-1595

Joanne Lane,
Relator,

vs.

D W Jones Management, Inc.,
Respondent,

Department of Employment and Economic Development,
Respondent.

Filed August 20, 2018
Affirmed
Johnson, Judge

Department of Employment and
Economic Development
File No. 35624132-3

Joanne G. Lane, Duluth, Minnesota (pro se relator)

D W Jones Management, Inc., Walker, Minnesota (respondent)

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

Considered and decided by Johnson, Presiding Judge; Worke, Judge; and Reyes,
Judge.
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U N P U B L I S H E D O P I N I O N
JOHNSON, Judge
Joanne Lane sought unemployment benefits after she was terminated from her
employment. The department of employment and economic development concluded that
she is ineligible for benefits on the ground that she was terminated for employment
misconduct. We affirm.
FACTS
D.W. Jones Management, Inc. ( DWJMI), provides housing and other services to
homeless persons in Duluth. Lane was employed by DWJMI from September 2016 to May
2017. From November 2016 until the end of her employment, she was a site manager at a
44-unit apartment building. Her job consisted primarily of two duties: filling vacancies in
housing units based on referrals from local agencies and issuing notices of lease violations
to non-compliant residents.
In May 2017, DWJMI discharged Lane because she was not performing her two
primary job duties and because she purchased supplies from a non-approved source without
authorization. Lane applied for unemployment benefits with the d epartment of
employment and economic d evelopment. The department made an initial determination
that she is ineligible for unemployment benefits because she was discharged for
employment misconduct. Lane fil ed an administrative appeal . In June 2017, a n
unemployment-law judge (ULJ) conducted an evidentiary hearing. DWJMI called three
witnesses: Patty Nadeau, a vice president; Amy Lind, a property manager; and Becky Toso,
a human-resources employee. Lane testified on her own behalf.
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After the hearing, the ULJ issued a written decision in which he determined that
Lane engaged in employment misconduct by failing to fulfill her two primary job duties .
Lane requested reconsideration and submitted additional evidence. In September 2017, the
ULJ denied Lane’s request for reconsideration and affirmed his earlier decision . Lane
appeals by way of a petition for a writ of certiorari.
D E C I S I O N
Lane argues that the ULJ erred by concluding that she was terminated for
employment misconduct.
Unemployment benefits are intended to provide financial assistance to employees
who have been discharged from employment “through no fault of their own.” Stagg v.
Vintage Place, Inc., 796 N.W.2d 312, 315 (Minn. 2011) (quotation omitted). Accordingly,
an employee who has been discharged from employment based on “employment
misconduct” is ineligible to receive unemployment benefits. Minn. Stat. § 268. 095, subd.
4 (2016); Stagg, 796 N.W.2d at 315 . “Employment misconduct” is defined by statute to
mean
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) (Supp. 2017) . There are several exceptions to the
statutory definition of misconduct, including “inefficiency or inadvertence; . . . simple
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unsatisfactory conduct; . . . inability or incapacity; . . . [or] good faith errors in judgment.”
Id. § 268.095, subd s. 6(b)(2), (3), (5), (6). The statutory definition of misconduct is
exclusive such that “no other definition applies” to an application for unemployment
benefits. Id. § 268.095, subd. 6(e); see also Wilson v. Mortgage Resource Ctr., Inc. , 888
N.W.2d 452, 456-60 (Minn. 2016).
This court reviews a ULJ’s decision denying unemployment benefits to determine
if the findings, inferences, conclusions, or decision are unlawful or in excess of the ULJ’ s
authority, unsupported by substantial evidence, or arbitrary and capricious. Minn. Stat.
§ 268.105, subd. 7(d) ( Supp. 2017). We review the ULJ’s findings of fact “in the light
most favorable to the decision” to determine whether “there is evidence in t he record that
reasonably tends to sustain them.” Stagg, 796 N.W.2d at 315 (quotation omitted). We
apply a de novo standard of review to mixed questions of fact and law, such as whether an
employee’s conduct “disqualifies the employee from unemployment b enefits.” Id.
(quotation omitted). “Whether the employee committed a particular act is a question of
fact.” Skarhus v. Davanni’s Inc., 721 N.W.2d 340, 344 (Minn. App. 2006).
In this case, the ULJ found that Lane engaged in misconduct because her failure to
perform her primary job duties demonstrated “a substantial lack of concern for the
employment.” With respect to Lane’s responsibility to fill vacancies, the ULJ found that
DWJMI’s evidence was more credible, which showed “that the only reason for dela ys in
moving people in was because Lane failed to complete the paperwork.” The ULJ also
found that “ Lane was not timely in completing the document phase of the application
process,” that the “agency could not review an application until Lane finished it,” and that
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residents could not move into vacant apartments until the paperwork was completed and
approved. The ULJ further found that, between November 2016 and May 2017, Lane filled
only two vacancies and that, by comparison, DWJMI filled six vacancies in the first month
after her termination. With respect to her responsibility to issue lease-violation notices, the
ULJ found that Lane “did not issue any lease violations during the final six w eeks of her
employment . . . despite the fact that the daily lease violation log showed that six
households engaged in activity that should have resul ted in at least 18 notices of lease
violations being sent.”
The record supports the ULJ’s findings with respect to DWJMI’s second reason for
terminating Lane’s employment. The record shows that Lane was required to review a
lease-violation log every morning and to initial it to show that she reviewed it. For every
violation noted on the daily log, Lane was required to fill out a lease-violation notice form,
make a copy of the daily log, staple the documents together, and mail or hand -deliver the
notice to the resident. The evidence shows that , during the six-week period before her
termination, Lane did not issue a single notice of a lease violation, despite the fact that 18
violations were recorded in the daily log, all of which she initialed.
We are mindful that poor performance because of “inability or incapacity” is not
misconduct. See Minn. Stat. § 268.095, subd. 6(b)(5). Nonetheless, “an employee’s
intentional refusal to perform a task, as opposed to negligent forgetfulness, supports the
[department’s] decision that an employee committed misconduct.” Vargas v. Northwest
Area Found., 673 N.W.2d 200, 207 (Minn. App. 2004), review denied (Minn. Mar. 30,
2004). In general, if the employer’s request “is reasonable and does not impose an
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unreasonable burden on the employee, the employee’s refusal to abide by the request
constitutes misconduct.” Id. at 206; see also Schmidgall v. Filmtec Corp. , 644 N.W.2d
801, 804 (Minn. 2002). Here, Lane’s failure to fulfill a primary job duty was not due to
inability or incapacity. T he ULJ found that L ane knew how to issue lease violations
because she did so consistently between November 2016 and March 2017. But Lane did
not issue any violation notices a fter March 22, 2017. She received a verbal warning on
April 24, 2017, about her failure to issue lease-violation notices. Yet she continued to not
issue any notices. The evidence supports the ULJ’s finding that Lane did not issue lease-
violation notices between March 2017 and May 2017 because of a substantial lack of
concern for her employment.
Lane contends that she did not engage in misconduct because she misunderstood
the expectations and did not receive adequate training . Lane testified that she was not
given an electronic template to issue lease-violation notices, which she was required to use.
DWJMI’s evidence contradi cted Lane’s testimony on this point. Lind testified that she
trained Lane on how to issue lease -violation notices after Lane was hired , that they “sat
down [and] went over the logs together,” that she “showed her how to do violations,” and
that “[v]iolations were given out at that time via me showing her and her doing them at that
time.” T he ULJ found the employers’ witnesses to be more credible than Lane.
“Credibility determinations are the exclusive province of the ULJ and will not be disturbed
on appeal.” Skarhus, 721 N.W.2d at 345.
Lane also contends that she was told “not to write Lease Violations unless it was a
gross infraction of the Lease.” Lane did not provide that excuse in her testimony to the
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ULJ, and there is no other evidence in the recor d to support the contention. At the
evidentiary hearing, Lane testified that she did not issue more lease-violation notices
because she was required to get approval before issu ing them. Lind’s testimony is
consistent on that point; she testified that she told Lane that she “need[ed] to see [the lease-
violation notices] to make sure that they’re okay” before they were sent. But there is no
evidence that Lane prepared and submitted any lease-violation notices for Lind to review
during the last six weeks of her employment. Accordingly, Lane’s excuse is not a valid
excuse for failing to prepare and issue lease-violation notices.
In sum, the ULJ did not err by finding that Lane engaged in employment misconduct
by failing to issue lease -violation notices and, accordingly, did not err by concluding that
Lane is ineligible for unemployment benefits.
Affirmed.