This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).







Audrey M. DeMarais,





Jordan Medical P.A.,


Commissioner of Economic Security,




Filed September 11, 2001


G. Barry Anderson, Judge


Minnesota Department of Economic Security

File No. 804800


Audrey M. DeMarais, 102 Pulaski Park, Buffalo, MN  55313-2237 (pro se relator)


Jordan Medical, P.A., 7266 County Road 37 Northeast, St. Michael, MN  55376 (respondent-employer); and


Kent E. Todd, Commissioner, Minnesota Department of Economic Security, 390 North Robert Street, St. Paul, MN  55101 (respondent-commissioner)


            Considered and decided by G. Barry Anderson, Presiding Judge, R.A. Randall, Judge and Robert Schumacher, Judge.


U N P U B L I S H E D  O P I N I O N


            Relator’s employer, a medical clinic, discharged her from employment after learning from a patient that relator asked the patient to fill a prescription and sell the drug to her.  The Minnesota Commissioner of Economic Security denied relator unemployment benefits.  Relator proceeds by writ of certiorari, arguing that she did not commit misconduct and that the commissioner’s representative should not have considered the patient’s hearsay statements.  We affirm.


            Relator Audrey M. DeMarais began employment as a medical secretary/receptionist at respondent Jordan Medical clinic in 1999.  On August 17, 2000, relator allegedly asked a patient to fill a prescription for Xenical, a weight-loss drug.  According to the patient, relator explained that she needed the drug for her 12-year-old daughter, could not afford to pay the full price for the drug under her own insurance policy, and offered to pay the patient’s insurance co-payment.  The patient questioned the legitimacy of the request and asked a pharmacist about it; the pharmacist contacted Dr. Matthias Jordan, who operated the medical clinic.  On August 21, 2000, Dr. Jordan met with the patient and the patient recounted what relator had said.  That day, Dr. Jordan discharged relator from employment for employment misconduct. 

The Minnesota Department of Economic Security denied relator unemployment benefits.  Relator appealed from the decision and an unemployment law judge conducted an evidentiary hearing; the judge affirmed the department’s determination.  The commissioner’s representative affirmed the unemployment law judge’s decision disqualifying relator from unemployment benefits, concluding that relator committed employment misconduct.  Relator now appeals by writ of certiorari.




Relator first argues that she did not commit employment misconduct. An employee who is discharged for employment misconduct is disqualified from receiving unemployment-compensation benefits.  Minn. Stat. § 268.095, subd. 4(1) (2000).  On appeal from a denial of unemployment benefits based on misconduct, the determination of whether an employee committed misconduct is a mixed question of fact and law.  Colburn v. Pine Portage Madden Bros. Inc.,346 N.W.2d 159, 161 (Minn. 1984).  Whether an employee committed particular acts is a fact question, and the determination of whether those acts constitute misconduct is a question of law.  Scheunemann v. Radisson S. Hotel,562 N.W.2d 32, 34 (Minn. App. 1997). 

A.         Findings of Fact

            Relator first argues that the commissioner’s representative’s findings of fact are not supported by the record and claims she did not ask the patient to fill a prescription for her.  This court, however, must view the commissioner’s representative’s factual findings “in the light most favorable to the decision” and will not disturb the findings “if there is evidence reasonably tending to sustain them * * * .”  White v. Metropolitan Med. Ctr.,332 N.W.2d 25, 26 (Minn. 1983).  

The representative found that relator “in fact, did attempt to obtain a prescription drug” by asking the patient to fill the prescription and then give the drug to relator.  Relator denied asking the patient to obtain Xenical for her.  Instead, relator testified that she simply shared information about the uses and effects of Xenical with the patient.  But the representative did not find that testimony credible and reasoned that (1) relator admitted that she told the patient that relator’s medical insurance would not pay for her prescription of Xenical and (2) relator admitted telling the patient that she had to pay the full cost of her daughter’s prescription.  The representative noted that these representations were consistent with the patient’s story.  The representative did not believe relator would have discussed details of her own insurance and her inability to afford the drug if she had not also asked the patient to purchase it for her.

At the end of the day, the commissioner’s representative found the patient’s version, as told by the doctor, to be more credible.  Because we conclude that the record supports the findings, we defer to the agency’s credibility determination.  See LaSalle Cartage Co. v. Hampton, 362 N.W.2d 337, 341 (Minn. App. 1985) (explaining that credibility judgments are the province of the commissioner’s representative, not of this court). 

B.         Misconduct

Relator next contends that her actions did not constitute misconduct because she never violated her employer’s confidentiality policy.  Minn. Stat. § 268.095, subd. 6(a) (2000), defines disqualifying misconduct:

(1) any intentional conduct, on the job or off the job, that disregards the standards of behavior that an employer has the right to expect of the employee or disregards the employee’s duties and obligations to the employer; or


(2) negligent or indifferent conduct, on the job or off the job, that demonstrates a substantial lack of concern for the employment. 


Id.  Some types of conduct, however, such as inefficiency, inadvertence, and simple unsatisfactory conduct, “are not employment misconduct.”  Id.,  subd. 6(b). 

An employee’s violation of an employer’s policies constitutes misconduct. Sivertson v. Sims Sec., Inc., 390 N.W.2d 868, 871 (Minn. App. 1986), review denied (Minn. Aug. 20, 1986).  Confidentiality of medical records is a very important matter for health-care employers.  Group Health Plan, Inc. v. Lopez, 341 N.W.2d 294, 297 (Minn. App. 1983).  Moreover, dishonesty, if connected with employment and if a deliberate violation of the standards the employer had a right to expect, is misconduct.  See Baron v. Lens Crafters, Inc.,514 N.W.2d 305, 307-08 (Minn. App. 1994) (dishonesty); see also Markel v. City of Circle Pines,479 N.W.2d 382, 384 (Minn. 1992) (explaining employer’s expectation); Tuckerman Optical Corp. v. Thoeny,407 N.W.2d 491, 494 (Minn. App. 1987) (no misconduct where employee acted without intent to be disobedient or harm employer); Benson v. Iowa Beef Processors,348 N.W.2d 394, 397 (Minn. App. 1984) (employee’s knowing violation of unstated policy not disqualifying misconduct).  Even a single incident may constitute misconduct disqualifying an employee from unemployment benefits.  Wilson v. Comfort Bus Co.,491 N.W.2d 908, 917 (Minn. App. 1992), review denied (Minn. Jan. 15, 1993).

Dr. Jordan testified that relator violated the clinic’s confidentiality policy because “she was using information out of [a] patient’s chart for purposes other than the medical care of [the] patient.”  The commissioner’s representative found that relator attempted to obtain a prescription drug for her personal use or the use of her daughter by asking a patient of the clinic to fill the patient’s prescription for Xenical and then give the Xenical to relator in exchange for the co-payment.  The commissioner’s representative concluded that relator’s conduct was “intentional and in disregard of the standards of behavior that Dr. Jordan had a right to expect of her as well as in disregard of her duties and obligations to Dr. Jordan.”

We conclude that relator, in attempting to obtain Xenical through a patient by virtue of knowing the patient had a prescription for the drug rather than paying through relator’s own insurance company, violated her employer’s confidentiality policy and acted dishonestly. 


            Relator next argues that the patient’s statements are hearsay and should not have been considered by the commissioner’s representative.  Dr. Jordan, who spoke to the patient, presented the patient’s version of events.  Relator correctly points out that this is hearsay.  See Minn. R. Evid. 801(c), 802 (a hearsay statement is a statement made at a trial or hearing by anyone other than the declarant and offered as evidence of the truth of the matter asserted, and is generally not admissible).

Hearsay evidence is, however, expressly permitted in economic-security cases:

Economic security hearings may be conducted in conformance with the Commissioner’s own rules, whether or not they are technically in compliance with the Minnesota Rules of Evidence or other rules of procedure.  Hearsay may be admissible and sufficient to support the Commissioner’s decision.  A decision regarding the credibility of witnesses rests within the discretion of the Commissioner, and the testimony should not be reweighed on appeal.


Youa True Vang v. A-1 Maint.  Serv.,376 N.W.2d 479, 482 (Minn. App. 1985) (citations omitted). 

In addition, the Minnesota Rules provide that hearsay evidence is specifically allowed in an unemployment-benefits hearing “if it is the type of evidence on which reasonable, prudent persons are accustomed to rely in the conduct of their serious affairs.”  Minn. R. 3310.2922; see also Trebelhorn v. Minneapolis Cable Syst., Inc., 380 N.W.2d 237, 239 (Minn. App. 1986) (finding hearsay evidence sufficient to sustain commissioner’s representative’s denial of re-employment benefits).

            In this case, the commissioner’s representative deemed the patient’s statement reliable and, as discussed above, noted that the statement was consistent in important respects with relator’s statements.  Under these circumstances, we conclude that the commissioner’s representative did not err by considering the patient’s story, as explained through Dr. Jordan.