Patty Kirkey, 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This opinion will be unpublished and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
A18-0182

Patty Kirkey,
Relator,

vs.

LSS of Traverse, LLC,
Respondent,

Department of Employment and
Economic Development,
Respondent.

Filed August 20, 2018
Affirmed
Jesson, Judge

Department of Employment and
Economic Development
File No. 35944503-3

Patty Kirkey, Graceville, Minnesota (pro se relator)

LSS of Traverse, LLC, Wheaton, Minnesota (respondent)

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

Considered and decided by Worke, Presiding Judge; Jesson, Judge; and Bratvold,
Judge.
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U N P U B L I S H E D O P I N I O N
JESSON, Judge
After arguing and swearing in a room full of vulnerable adults at a senior care center,
relator Patty Kirkey was terminated from her employment. Kirkey applied for
unemployment benefits , but an unemployment law judge ultimately determined that
Kirkey was ineligible for benefits because she was terminated for employment misconduct.
Kirkey appeals the ULJ’s decision, disputing some of the factual findings and challenging
the determination that her behavior constituted employment misconduct. We affirm.
FACTS
Relator Patty Kirkey worked for Legacy Senior Care (Legacy), which is owned by
respondent LSS of Traverse, LLC, as a dietary aid starting in 2014 . During her
employment at Legacy, Kirkey was reprimanded multiple times for a wide variety of
misconduct. This include d having a bad attitude, swearing, delega ting her own work
assignments, not following dress-code requirements, failure to complete work assignments
before taking breaks, and misplacing her cellphone. These incidents ultimately resulted in
her placement on final-warning status—where another disciplinary infraction would cause
her to be terminated—leading up to an early October incident.
On October 7, 2017, Kirkey was working in the dining room helping serve meals to
residents. The dietary staff were falling behind schedule, and a nurse came to assist. While
the dietary staff were still busy, Kirkey stopped helping and started to leave to clean dishes.
The nurse became upset after noticing this and told Kirkey that she should not leave as the
residents were not fully served . In response, Kirkey got into a loud argument with the
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nurse, stated it was not her job to serve the dining room, and loudly swore—saying the
situation was “bullsh-t.” This argument took place in front of numerous residents , and
multiple employees reported it.
Because of this incident, Legacy followed its internal policy that swearing in front
of residents results in immediate termination and ended Kirkey’s employment. Kirkey
filed for unemployment benefits. Respondent Department of Employment and Economic
Development ( DEED) initially determined her eligible . However, Legacy appealed
DEED’s determination and t he case was scheduled to be heard before an unemployment
law judge (ULJ).
At th e hearing before the ULJ , both Kirkey and her supervisor testified. The
supervisor reiterated the facts of the dining-room incident, while Kirkey denied arguing or
swearing. The ULJ issued a decision, determining that Kirkey was ineligible for
unemployment benefits under Minnesota Statutes section 268.095, subdivision 4 (2016),
which prohibits payment of unemployment benefits to those discharged for employment
misconduct. The ULJ based its findings of fact on Legacy’s witness testimony, since it
determined that testimony was “detailed, specific, and supported by business records.”
Kirkey requested reconsideration of the ULJ’s determination, but the ULJ reaffirmed the
earlier decision. In the order on reconsideration, the ULJ noted that Legacy was more
credible than Kirkey.
On a writ of certiorari, Kirkey appeals to this court.
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D E C I S I O N
Kirkey argues the ULJ erred in finding her ineligible for unemployment benefits
due to misconduct because she asserts that the testimony against her was false, specifically
regarding the dining-room incident. An individual is ineligible for unemployment benefits
when that individual was terminated for employment misconduct. Minn. Stat. § 268.095,
subd. 4. When reviewing disqualification for employment misconduct, this court considers
a mixed question of fact and law. Skarhus v. Davanni’s Inc., 721 N.W.2d 340, 344 (Minn.
App. 2006). W hether an employee committed a specific act is a question of fact , b ut
whether the act committed constitutes employment misconduct is a question of law
reviewed de novo. Id. This court may reverse or modify the decision if the ULJ’s findings,
inferences, conclusion, or decision are “unsupported by substantial evidence in view of the
entire record as submitted.”1 Minn. Stat. § 268.105, subd. 7(d)(5) (Supp. 2017). To address
this issue, we must (1) examine whether the ULJ’s determinations regarding the dining -
room incident are supported by substantial evidence; and (2) then determine whether that
conduct constitutes employment misconduct.

1 DEED asserts that the standard of review requires this court to accept the findings of the
ULJ, provided that there is evidence in the record that reasonably tends to sustain them.
DEED relies, in part, on Wilson v. Mortg. Res. Ctr., Inc. , 888 N.W.2d 452, 460 (Minn.
2016). Without deciding whether substantial evidence differs from evidence that
“reasonably sustains,” we disagree with DEED’s description of our standard of review.
This court has consistently applied the “substantial evidence” standard of r eview enacted
by the legislature in 2005. See Minn. Stat. § 268.105, subd. 7( d)(5) (Supp. 2017); 2005
Minn. Laws ch. 112, art. 2, § 34, at 710; see also Cunningham v. Wal -Mart Assocs., 809
N.W.2d 231, 235 (Minn. App. 2011) (“Findings of fact will be upheld if they are supported
by substantial evidence in light of the entire record.”); Skarhus v. Davanni’s Inc. , 721
N.W.2d 340, 344 (Minn. App. 2006) (“[W]e will not disturb the ULJ’s factual findings
when the evidence substantially sustains them.”).
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Here the ULJ found that Kirkey confronted a fellow employee during dining service
while the room was full of residents. Furthermore, the ULJ found that Kirkey was loud
during the confrontation and swore. Both of these findings are supported by substantial
evidence. The incident report admitted in the record describes the incident in detail and is
consistent with the ULJ’s determination. Additionally, Kirkey’s supervisor attested to
these facts during the hearing. While Kirkey may have provided different evidence, the
ULJ found the supervisor credible, and we defer to the ULJ’s credibility determinations.
Skarhus, 721 N.W.2d at 345 (“Credibility determinations are the exclusive province of the
ULJ and will not be disturbed on appeal.”) . Therefore, t he supervisor’s testimony, in
addition to the report documenting the inci dent, substantially support the ULJ’ s findings.
We next address whether Kirkey’s actions constitute employment misconduct.
Minnesota Statutes section 268.095, subdivision 6 (2016) , defines employment
misconduct as intentional, negligent or indifferent conduct that clearly displays “(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.” A single
incident can constitute misconduct, if the conduct is done deliberately and is adverse to the
employer. Schmidgall v. FilmTec Corp. , 644 N.W.2d 801, 806 (Minn. 2002). And an
employee’s decision to violate a reasonable policy of the employer is misconduct. Id.
Kirkey’s conduct —confronting, yelling, and swearing at a coworker in front of
vulnerable adults—rises to the level of employment misconduct. Yelling and swearing at
a coworker under these circumstances violate d the standards of beha vior Legacy
reasonably expected of Kirkey, and doing so in front of vulnerable adult s in their home
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showed a substantial lack of concern for her employment. This is consistent with our
previous decisions determin ing that aggressive and offensive conduct c onstitutes
misconduct. See e.g., Pitzel v. Packaged Furniture & Carpet , 362 N.W .2d 357, 357 -58
(Minn. App. 1985). Furthermore, swearing in front of residents is an explicit violation of
Legacy’s policy, which reinforces our determination that it constitu ted misconduct. See
Schmidgall, 644 N.W.2d at 806 (“an employee ’s decision to violate knowingly a
reasonable policy of the employer is misconduct.”).
Because Kirkey engaged in aggressive and disruptive conduct by arguing and
swearing at a coworker in f ront of numerous residents and staff, we determine that she
committed employee misconduct and is ineligible for unemployment benefits. 2
Affirmed.

2 The ULJ’s determination that Kirkey engaged in employment misconduct also included
several incidents of alleged misconduct by Kirkey separate from the dining-room incident.
Kirkey makes numerous challenges to the findings surrounding these incidents on appeal.
But because the dining-room incident on its own constitute s employment misconduct, we
decline to address these arguments.