Noelle L. Norris, Relator v. Mayo Foundation for Medical Education & Research, Department of Employment and Economic Development

Minnesota Court of Appeals February 27, 2017

Opinion

This opinion will be unpublished and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
A16-1176

Noelle L. Norris,
Relator,

vs.

Mayo Foundation for Medical Education & Research,
Respondent,

Department of Employment and Economic Development,
Respondent.

Filed February 27, 2017
Affirmed
Reilly, Judge

Department of Employment and Economic Development
File No. 34480318-3

Noelle L. Norris, Rochester, Minnesota (pro se relator)

Mayo Foundation for Medical Education & Research, Rochester, Minnesota (respondent
employer)

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

Considered and decided by Hooten, Presiding Judge; Reilly, Judge; and Smith,

Tracy M., Judge.
UNPUBLISHED OPINION

REILLY, Judge

Relator Noelle L. Norris challenges the determination of an unemployment-law

judge (the ULJ) that she is ineligible for unemployment benefits because she was

discharged for employment misconduct. Because substantial evidence supports the ULJ’s

determination that relator committed employment misconduct by falsifying work

documentation, we affirm.

FACTS

Relator challenges the ULJ’s determination that she was discharged for employment

misconduct. At the time of her discharge, relator was employed as a pharmacy technician

with respondent Mayo Foundation for Medical Education and Research (Mayo). Her

duties included performing a monthly check of an automated pharmaceutical-dispensing

machine, known as a pyxis machine, located in an inpatient area of the hospital. In January

2016, relator submitted a checklist indicating that she performed a monthly check of the

pyxis machine. Mayo later discovered that relator did not check the machine and

terminated her employment for falsifying work documentation in violation of Mayo’s

employment policies.

Relator subsequently applied for unemployment benefits. The Minnesota

Department of Employment and Economic Development (DEED) determined that relator

was ineligible for unemployment benefits because she was discharged for employee

misconduct “for logging work that was not performed.” Relator appealed DEED’s

determination. The ULJ conducted a telephone hearing at which relator testified on her

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own behalf, and a technician supervisor and a human-resources advisor testified on behalf

of Mayo. The ULJ issued a decision, determining that relator was discharged for employee

misconduct and was therefore ineligible to receive unemployment benefits. Relator

requested reconsideration of the ULJ’s decision, which was denied.

This certiorari appeal follows.

DECISION

1. Substantial evidence supports the ULJ’s finding that relator committed
conduct constituting employee misconduct.

When reviewing an unemployment insurance benefits decision this court may

affirm, remand the case for further proceedings, or reverse and modify the decision if the

substantial rights of the relator have been prejudiced because, among other things, the

decision is unsupported by substantial evidence in view of the entire record as submitted.

Minn. Stat. § 268.105

, subd. 7(d) (2016). An applicant who is discharged for employment

misconduct is ineligible for unemployment benefits.

Minn. Stat. § 268.095

, subd. 4 (2016).

“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). Whether an employee committed a particular act is a

question of fact viewed in the light most favorable to the ULJ’s decision and affirmed if

supported by substantial evidence. Skarhus v. Davanni’s Inc.,

721 N.W.2d 340, 344

 (Minn.

App. 2006). But we review de novo the legal question of whether the particular act

committed by the employee constitutes employment misconduct.

Id.





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      Employment misconduct is defined as “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

(2016). Refusing to abide by an employer’s reasonable policies and requests ordinarily

amounts to employment misconduct. Schmidgall v. FilmTec Corp.,

644 N.W.2d 801, 804

(Minn. 2002).

The ULJ found that Mayo had “the right to reasonably expect that employees will

properly complete duties and that they will properly report duties completed.” The ULJ

found that the preponderance of the evidence demonstrated that relator “seriously violated

this expectation” by knowingly submitting false documentation. The ULJ determined that

“[k]nowingly turning in documentation indicating that she had completed tasks that she

had not was a serious violation of the employer’s reasonable expectations [and] showed a

substantial lack of concern for the employment.” We agree.

Mayo adopted a policy articulating a set of guidelines for the corrective-action

process to be followed when an employee’s performance interferes with Mayo’s operations

or patient care. Falsification of data and documentation is “considered serious at Mayo”

because it “involve[s] a willful disregard of expectations that may have an immediate

negative impact” on Mayo’s goals or “may put individuals or the organization at risk,” and

provides grounds for immediate termination. Relator conceded that she submitted

documentation claiming that she performed a monthly check of the pyxis machine when

she did not perform this duty. Relator’s intentional falsification of documentation

4
displayed “a serious violation of the standards of behavior” that Mayo had a right to

reasonably expect from her. See

Minn. Stat. § 268.095

, subd. 6(a)(1).

       Substantial evidence in the record supports the ULJ’s determination that relator is

ineligible to receive unemployment benefits because she committed employee misconduct,

and appellant has not established reversible error.

          2. The ULJ did not abuse its discretion by declining to reconsider its ruling.

       Relator challenges the ULJ’s order denying reconsideration. “A reviewing court

accords deference to a ULJ’s decision not to hold an additional hearing and will reverse

that decision only for an abuse of discretion.” Skarhus,

721 N.W.2d at 345

. When

determining whether to grant a request for reconsideration, the ULJ “must not consider any

evidence that was not submitted at the [evidentiary] hearing,” but must order an additional

evidentiary hearing to consider new evidence if it “would likely change the outcome of the

decision and there was good cause for not having previously submitted that evidence.”

Minn. Stat. § 268.105

, subd. 2(c) (2016).

       Relator’s request for reconsideration fails to satisfy this test. Relator argues that

reconsideration is appropriate because she wants to “correct the record” regarding the pyxis

checklist itself. The ULJ rejected this argument, holding that any additional witness

testimony “would not change the outcome of the decision.” Relator’s termination was

based on the filing of false documentation, and she has not provided cogent evidence

challenging that finding. Moreover, relator has not established good cause for failing to

submit her proposed evidence at the evidentiary hearing. Relator does not explain how

additional information about the pyxis checklist would alter the conclusion that she


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intentionally falsified documentation. We therefore discern no abuse of discretion in the

ULJ’s decision to deny relator’s request for reconsideration.

           3. Relator is not otherwise entitled to relief.

       Relator challenges the ULJ’s determination on a number of additional grounds.

       First, relator argues that Mayo did not have a “specific policy” detailing the

importance of the pyxis checklist and she therefore carried out her employment duties in a

manner she considered “reasonable under the circumstances.” Under the good-faith

judgment exception, if judgment is required, a good-faith error in judgment is not

employment misconduct.

Minn. Stat. § 268.095

, subd. 6(b)(6). The good-faith judgment

exception is inapplicable here. Acts inconsistent with an employee’s training or established

procedure are not considered errors of judgment. See Ress v. Abbott Nw. Hosp., Inc.,

448 N.W.2d 519, 525

 (Minn. 1989). The pyxis checklist itemizes 14 separate maintenance

functions that an employee is expected to perform. Relator acknowledged that she was

familiar with this checklist and had used the same checklist “for quite a long time.”

Relator’s intentional falsification of the checklist does not constitute an error of judgment

and she is not entitled to relief on that basis.

       Relator next asserts that she was harassed during her employment and did not get

the support she needed from management. The ULJ found that “[t]he only harassment

[relator] mentioned was discipline she received. Although [she] may have disagreed with

the discipline, that does not show that she was discharged for a reason other than what was

provided by [Mayo].” On appeal, relator fails to support her harassment allegations with

relevant facts or legal authority, and we consider them forfeited. See State v. Myhre, 875

6 N.W.2d 799

, 806 (Minn. 2016) (deeming forfeited issues that are raised in a brief but lack

adequate factual support or legal argument).

       Lastly, relator claims that the ULJ was biased against her because the ULJ gave

greater weight to the testimony of Mayo’s witnesses. The ULJ heard testimony from

relator and from the employer’s two witnesses and found the evidence produced by Mayo

to be more credible than the evidence produced by relator. We defer to the ULJ’s

credibility determinations when they are supported by substantial evidence and the ULJ

sets forth a valid reason for crediting or discrediting the witness. See

Minn. Stat. § 268.105

,

subd. 1a(a) (2016) (stating that the ULJ must set forth the reason for crediting or

discrediting testimony when credibility “has a significant effect on the outcome of a

decision”); see also Ywswf v. Teleplan Wireless Servs., Inc.,

726 N.W.2d 525, 533

 (Minn.

App. 2007) (noting that we defer to the credibility determination made by the ULJ when it

is supported by substantial evidence and provides adequate reasons for the determination).

Here, the ULJ fully credited Mayo’s witnesses because their testimony was based on

firsthand knowledge, was consistent, and was logical.             The record supports this

determination.

       In sum, we affirm the ULJ’s decision that relator was discharged for employee

misconduct and therefore ineligible to receive unemployment benefits.

       Affirmed.




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Reference

Status: Unpublished