Charlene Hughes, Relator,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-0994

Charlene Hughes,
Relator,

vs.

Vivien Bacaner,
Respondent,

Department of Employment and Economic Development,
Respondent.

Filed March 9, 2020
Affirmed
Reilly, Judge

Department of Employment and Economic Development
File No. 37205851-3

John P. Pavelko, Fredrikson & Byron, P.A., Minneapolis, Minnesota (for relator)

Vivien Bacaner, St. Louis Park, Minnesota (pro se respondent employer)

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

Considered and decided by Connolly, Presiding Judge; Reilly, Judge; and Kirk,
Judge.*

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
REILLY, Judge
Relator challenges the decision of an unemployment-law judge (ULJ) that relator is
ineligible for unemployment benefits because she was discharged for employment
misconduct. Relator argues that her conduct did not rise to the level of employment
misconduct because it (1) was a good -faith error in judgment; (2) was what an average,
reasonable employee would have done; and (3) involved a single incident. We affirm.
FACTS
In January 2018, relator Charlene Hughes began working for respondent Vivien
Bacaner as an in-home caregiver for Bacaner’s elderly mother and father. Hughes “worked
exclusively at night,” and typically worked “two nights a week,” and alternatively three
nights a week. Father “gets up a lot during the night” and part of her duties required Hughes
to assist father when he needed to u se the bathroom at night. When father would call,
Hughes would put a “gate belt or transfer belt around him and then he would . . . stand up
and [she] would help him turn to sit down in his wheelchair.” Hughes would then take
father in the wheelchair to the bathroom door where he would take a walker to the toilet.
In early December 2018, father was hospitalized for about a week with bronchitis.
When he was discharged, the hospital suggested that father be transferred from a seated to
a standing position with two people rather than one person. As a result, Bacaner purchased
a new “Sit to Stand” lift device to assist caregivers when transferring father. Although
Bacaner had purchased a lift prior to father’s December 2018 hospitalization, that lift was
a “fossil,” was “cumbersome” to use, and father would not use it. Bacaner testified that

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she purchased the new lift “with the idea” that, in addition to the physical therapy, the new
lift “would be a way of getting [father] back to a one -person transfer” because it “is very
easy to use.”
A representative from the lift company trained Bacaner and another caregiver on
how to operate the lift, and “each person trained the next person on it.” Bacaner knew that
Hughes received training on the lift’s operation because she “signed off” on it. But
unbeknownst to Bacaner, Hughes was not “comfortable” using the lift by herself. And
according to Hughes, she observed that “no one was using the lift,” and heard that father
“was refusing to use the lift.” Thus, Hughe s thought “we were just back to our regular,”
transferring of father “with the gate belt and the walker.”
By January 4, 2019, Bacaner determined that her father “was very conditioned and
happy with [the lift] as were all the staff.” Consequently, Bacaner provided the caregivers
with a note directing them to transfer her father using only the lift. Hughes initialed the
written directive, acknowledging that she had received and understood the instruction. But
according to Hughes, she continued to observe other caregivers not using the lift and,
therefore, she continued to transfer father using the belt and wheel chair.
On February 7, 2019, father suggested to Hughes that she transfer him using the lift.
Hughes informed father that she was not “comfortabl e using the lift,” and ignored his
request. The next morning, Bacaner received a phone call from the morning caregiver
informing her that her father was “so agitated” because “he had to go to the bathroom three
times and [Hughes] wouldn’t use the lift and made him use his walker.” Bacaner

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subsequently terminated Hughes’s employment due to her failure to follow the directive to
use the lift.
Hughes applied for unemployment benefits and respondent Department of
Employment and Economic Development (DEED) is sued a n initial determination that
Hughes was ineligible for unemployment benefits because she had been discharged due to
aggravated employment misconduct. Hughes appealed the determination and, following a
de novo hearing, a ULJ determined that Hughes was not discharged because of aggravated
employment misconduct. But the ULJ found that Hughes engaged in employment
misconduct because, by ignoring Bacaner’s instruction, Hughes “seriously violated
Bacaner’s reasonable expectations.” The ULJ, therefore, de termined that Hughes was
ineligible for unemployment benefits. Hughes subsequently requested reconsideration and
the ULJ affirmed. This certiorari appeal follows.
D E C I S I O N
Hughes challenges the ULJ’s decision that she was discharged for employmen t
misconduct. On certiorari appeal from a ULJ’s decision, we may affirm, remand the case
for further proceedings, or reverse and modify the decision of a ULJ if the decision violates
the constitution, exceeds the statutory authority or jurisdiction of the department, is made
upon unlawful procedure, is affected by other error of law, is unsupported by substantial
evidence, or is arbitrary or capricious. Minn. Stat. § 268.105, subd. 7(d) (2018).
An employee discharged for employment misconduct is ineligib le for
unemployment benefits. Minn. Stat. § 268.095, subd. 4(1) (2018) . Employment
misconduct is “any intentional, negligent, or indifferent conduct, on the job or off the job

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that displays clearly: (1) a serious violation of the standards of behavior th e 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) (2018).
Generally, an employee’s refusal “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). But “simple unsatisfactory conduct” and “good faith
errors in judgment if judgment was required” are not employment misconduct. Minn. Stat.
§ 268.095, subd. 6(b) (2018). And “[i]f the conduct for which the applicant was discharged
involved only a single incident, that is an important fact that must be considered in deciding
whether the conduct rises to the level of employment misconduct.” Id., subd. 6(d) (2018).
Whether an employee committed employment misconduct presents a mixed
question of law and fact. Peterson v. Nw. Airlines Inc., 753 N.W.2d 771, 774 (Minn. App.
2008), review denied (Minn. Oct. 1, 2008). Whether an employee committed a particular
act is a question of fact. Id. We view the ULJ’s findings of fact in the light most favorable
to its decision , and “will not disturb the ULJ’ s factual findings when the evidence
substantially sustains them.” Skarhus v. Davanni’s Inc., 721 N.W.2d 340, 344 (Minn. App.
2006). But whether a particular act constitutes misconduct is a question of law, and is
reviewed de novo. Stagg v. Vintage Place Inc., 796 N.W.2d 312, 315 (Minn. 2011).
Hughes argues that her decision not to use the lift “was not employment misconduct
because it was a good-faith error in judgment.” To support her claim, Hughes cites Benson

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v. Iowa Beef Processors , 348 N.W.2d 394 (Minn. App. 1984). 1 In that case, this court
determined that the employee made a good -faith error in judgment when he failed to
“perfectly comply with the [employer’s] procedures” because he was substituting at a
different work assignment, received no instructions from any supervisor, and relied on his
coworker’s instructions. Id. at 397. Therefore, this court concluded that the employee had
not engaged in employment misconduct. Id.
Hughes argues that this case is like Benson because she “received inconsistent
instructions from Bacaner during her employment about the use of lifts” with father, and
she was not adequately trained to use the lift. But unlike in Benson, Hughes received a
specific instruction to use the lift to transfer father. And the record reflects, and Hughes
does not d ispute, that she initialed the note with the instructions, indicating that she
understood that she was required to use the lift. Moreover, Bacaner testified that she
understood that Hughes had been adequately trained to use the lift because Hughes “signed
off on th[e] note,” and did not otherwise “notify [Bacaner] that she didn’t like [the lift] or
didn’t want to use it or wasn’t trained on it.” Consequently, this case is readily
distinguishable from the circumstances in Benson.
Hughes also contends that her decision not to use the lift was reasonable and a good-
faith error in judgment because “other employees besides Hughes . . . made the judgment
call to transfer [father] with the belt and wheelchair, rather than with the L ift.” We

1 Hughes also relie s on unpublished caselaw to support her argument. But, unpublished
decisions are not precedential. Minn. Stat. § 48 0A.08, subd. 3( c) (2018); Dynamic Air,
Inc. v. Bloch, 502 N.W.2d 796, 800 (Minn. App. 1993).

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disagree. Conduct inconsistent with an employee’s training or established procedure is not
considered a good-faith error of judgment. See Ress v. Abbott Nw. Hosp., Inc., 448 N.W.2d
519, 525 (Minn. 1989) . And a “[v]iolation of an employer’s rules by other employees is
not a valid defense to a claim of misconduct.” Dean v. Allied Aviation Fueling Co. , 381
N.W.2d 80, 83 (Minn. App. 1986). As stated above, Hughes was specifically instructed
on January 4, 2019, to use the lift to transfer father. The fact that other employees may
have ignored this instruction does not make Hughes’s conduct reasonable and is not a valid
justification for her alleged misconduct. See id.
Finally, Hughes argues that, “[b]ecause this was the first time that Hughes was made
aware that [father] preferred the Lift, [her] conduct only involved a single incident, and
should have been taken into account when determining whether her actions were
employment misconduct.” But an employer is entitled to establish reasonable policies and
requests. Sandstrom v. Douglas Mach. Corp., 372 N.W.2d 89, 91 (Minn. App. 1985). An
employee’s decision t o knowingly violate an employer’ s reasonable policies amounts to
misconduct disqualifying the employee fr om receiving unemployment benefits.
Schmidgall, 644 N.W.2d at 806 . And a single incident of an employee deliberately
choosing a course of action adverse to the employer can constitute misconduct. See
Colburn v. Pine Portage Madden Bros., 346 N.W.2d 159, 161 (Minn. 1984).
Here, Bacaner established a reasonable and specific procedure to transfer father
using the new lift. A single violation of this policy could be considered serious in light of
father’s age and fragility. Moreover, as DEED points out, Hughes’s conduct did not
involve a single incident. Hughes received the instructions on January 4, 2019, yet she

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continued to disregard these instructions until father complained in early February 2019.
Hughes’s refusal to abide by her employer’s reasonable instructions amounts to a serious
violation of the standards Bacaner had a right to reasonably expect. Accordingly, the ULJ
did not err by concluding that Hughes was ineligible for unemployment benefits because
she was discharged for employment misconduct.
Affirmed.