Opinion
No. A05-2109.
Filed September 19, 2006.
Appeal from the Department of Employment and Economic Development, File No. 365605.
Joy Bannister-Rice, (pro se relator)
Steven C. Pundt, (for respondent Haven Chemical Health Systems)
Linda A. Holmes, Department of Employment and Economic Development, (for respondent Department of Employment and Economic Development)
Considered and decided by Hudson, Presiding Judge; Halbrooks, Judge; and Wright, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2004).
UNPUBLISHED OPINION
Relator challenges the senior unemployment-review judge's decision that she is disqualified from receiving unemployment benefits because she was discharged from employment due to misconduct. Relator contends that the fact that she failed to timely report suspected sexual abuse of a child does not amount to employment misconduct. Additionally, relator contends that the senior unemployment-review judge erred by not remanding for an additional hearing before the unemployment-law judge for consideration of documents she had submitted. We affirm.
FACTS
Relator Joy Bannister-Rice was employed as a chemical-dependency counselor with respondent Haven Chemical Health Systems (Haven) from September 8, 2004 until January 13, 2005. Before December 23, 2004, a client informed relator that the client's son was sexually abusing the client's daughter. Relator did not promptly report the suspected abuse, despite being a mandated reporter under Minn. Stat. § 626.556 (2004). When relator informed her supervisor, Mary Alice Howard, of the alleged abuse at a staff meeting on December 23, Howard instructed relator to report the abuse and reminded her that the statute required her to do so within 24 hours of learning of the abuse. Relator acknowledged the reporting requirement, but stated that she was biding her time while she thought about it.
The next day, Howard did not see a notation in the client's chart regarding relator's report. As a result, Howard called relator at home to find out whether relator had made the report. Relator stated that she had not because the daughter was no longer living with the family. Howard again instructed relator to make the report that day by leaving a message on the county office's voicemail if the office was already closed for the Christmas holiday. Relator subsequently left a voicemail that day and followed up with a call the Monday after the holiday, when she spoke to someone.
Within the next three weeks, relator committed additional, less serious, policy violations leading to her eventual discharge. Relator filed for unemployment benefits and respondent Department of Employment and Economic Development (department) made an initial determination that relator was not disqualified from receiving benefits.
Haven appealed the determination to the unemployment-law judge (ULJ). The ULJ conducted an evidentiary hearing and determined that relator was disqualified from receiving benefits because she was discharged for misconduct as a result of her policy violations in the aggregate, including the failure to timely report the alleged sexual abuse.
Relator appealed the ULJ's decision to the senior unemployment-review judge (SURJ), and the SURJ affirmed the ULJ, finding that Haven discharged relator as a result of misconduct because under Minn. Stat. § 268.095, subds. 4, 6 (2004), her actions of not timely reporting the alleged sexual abuse displayed a serious violation of the standards of behavior that Haven had a right to expect of its employees. Relator petitioned for certiorari.
DECISION I.
As a procedural matter, relator contends that the SURJ erred by not remanding the case to the ULJ for an additional hearing because she contends that the ULJ failed to consider, or receive into evidence, documents that she submitted for use at the evidentiary hearing. The documents consisted of a written statement, time sheets from a prior employer, and two letters that were essentially character references. Relator has cited no authority for the proposition that the SURJ erred by not remanding for an additional hearing. Further, the SURJ specifically noted that the ULJ permitted relator to orally go point-by-point through the contents of her written statement and that relator had a full opportunity to testify. In addition, the SURJ noted that the time sheets and employee reviews were not relevant to the determination of misconduct in this matter. The SURJ therefore determined that relator was not prejudiced by the ULJ's failure to admit the documents into the record. We agree.
Minn. R. 3310.2921 governs the procedure by which a ULJ conducts the evidentiary hearing, and it states: "The referee shall exercise control over the hearing procedure in a manner that protects the parties' rights to a fair hearing. The referee shall ensure that relevant facts are clearly and fully developed." (Emphasis added.) In addition:
All competent, relevant, and material evidence, including records and documents in the possession of the parties which are offered into evidence, shall be part of the hearing record. A referee may receive any evidence which possesses probative value, including hearsay, if it is the type of evidence on which reasonable, prudent persons are accustomed to rely in the conduct of their serious affairs. A referee may exclude any evidence which is irrelevant, immaterial, unreliable, or unduly repetitious.
Minn. R. 3310.2922 (emphasis added).
Because relator testified at the hearing and was heard on the arguments that she raised in her submitted documents and because the time sheets and character references are irrelevant to the issue at hand, the SURJ did not err by refusing to remand for an additional hearing.
II.
We review findings made by the SURJ under a clearly erroneous standard. Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002). The factual findings of the SURJ are "viewed in the light most favorable to the decision, and if there is evidence reasonably tending to sustain them, they will not be disturbed." White v. Metro. Med. Ctr., 332 N.W.2d 25, 26 (Minn. 1983). The appellate court will review issues of law de novo. Schmidgall, 644 N.W.2d at 804. "Whether an employee engaged in conduct that disqualifies the employee from unemployment benefits is a mixed question of fact and law." Id. The scope of review is "very narrow." Markel v. City of Circle Pines, 479 N.W.2d 382, 383-84 (Minn. 1992).
An employee who is discharged for employment misconduct is disqualified from receiving unemployment benefits. Minn. Stat. § 268.095, subd. 4 (2004). The statute defines misconduct as "any intentional, negligent, or indifferent conduct, on the job or off the job (1) that displays clearly a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee, or (2) that displays clearly a substantial lack of concern for the employment." Id., subd. 6(a) (2004). "As a general rule, refusing to abide by an employer's reasonable policies and requests amounts to disqualifying misconduct." Schmidgall, 644 N.W.2d at 804, 807 (upholding misconduct determination when employee had been discharged for violations of policy requiring report of any injury during shift in which it occurred).
Here, the SURJ determined that relator's failure to timely report the alleged sexual abuse was misconduct. The mandated-reporter statute states:
A person who knows or has reason to believe a child is being neglected or physically or sexually abused . . . or has been neglected or physically or sexually abused within the preceding three years, shall immediately report the information to the local welfare agency, agency responsible for assessing or investigating the report, police department, or the county sheriff if the person is: (1) a professional or professional's delegate who is engaged in the practice of the healing arts, social services, hospital administration, psychological or psychiatric treatment, child care, education, or law enforcement.
Minn. Stat. 626.556, subd. 3(a)(1) (2004) (emphasis added). Additionally, "[f]or purposes of this subdivision, `immediately' means as soon as possible but in no event longer than 24 hours." Id., subd. 3(e) (2004) (emphasis added).
Relator does not challenge the SURJ's factual findings concerning the chronology of the date she learned of the alleged sexual abuse and the date she reported it. But she challenges the SURJ's legal determination of misconduct under the statute.
At the hearing before the ULJ, relator testified that she always intended to report the allegation, that there was "no question" that she would report it but that she just wanted to think about it longer and get the details straight. She did not claim, as she does now, that the alleged abuse did not meet the statutory definition of abuse, that she was not a mandated reporter under the statute, or that she thought that informing Howard at the staff meeting satisfied her reporting obligation.
To the contrary, relator testified that she knew that she was a mandated reporter, she knew that she had to report the alleged abuse within 24 hours, and she did not timely report it. Howard testified that she had previously informed relator that both her license and Haven's license were at stake for failing to do so. Additionally, relator testified that, despite the statutory mandate that the suspected abuse always be reported within 24 hours, she decided that the timing did not matter. She testified that "I also know, because I have done this before, if there's a reason and you tell them, which is what I did . . . that[it's] okay." In other words, relator intentionally violated the statute.
In addition, relator defied instructions from her employer. "The general rule is that if the request . . . is reasonable and does not impose an unreasonable burden on the employee, the employee's refusal to abide by the request constitutes misconduct." Vargas v. Nw. Area Found., 673 N.W.2d 200, 206 (Minn.App. 2004), review denied (Minn. Mar. 30, 2004).
Howard instructed relator on December 23, 2004, to report the suspected abuse to the county that day. Relator did not do so. Howard was concerned enough to call relator at home the following day, Christmas Eve day, to determine whether relator had followed the instruction. Howard then told relator to make the report that day by leaving a message on the county's voicemail.
Because the SURJ did not err by finding that Haven discharged relator as a result of misconduct, and, therefore, relator is disqualified from receiving benefits, we affirm.