This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).





Alisha M. Simmons,


Esthesia Oral Surgery Care, P.A.,

Department of Employment and Economic Development,

Filed December 4, 2007


Peterson, Judge


Department of Employment and Economic Development

File No. 816606


Mark H. Sutherland, 1141 Lincoln Avenue, St. Paul, MN  55105 (for relator)


Natalie R. Walz, William E. Sjoholm, Debra M. Newel, Thomsen & Nybeck, P.A., 3300 Edinborough Way, Suite 600, Edina, MN  55435-5962 (for respondent Esthesia Oral Surgery Care, P.A.)


Lee B. Nelson, Minnesota Department of Employment and Economic Development, First

National Bank Building, 332 Minnesota Street, Suite E200, St. Paul, MN  55101-1351 (for respondent Department of Employment and Economic Development)



            Considered and decided by Peterson, Presiding Judge; Lansing, Judge; and Klaphake, Judge.

U N P U B L I S H E D   O P I N I O N


In this certiorari appeal from a decision of an unemployment law judge (ULJ) that relator Alisha Simmons is disqualified from receiving unemployment benefits because she was discharged for misconduct, relator argues that (a) her conduct was a good-faith error in judgment, rather than misconduct; (b) her conduct had no adverse impact on the employer; and (c) the ULJ’s findings of fact and credibility determinations are not supported by the record.  We affirm.


            Relator was employed by respondent Esthesia Oral Surgery Care, P.A. as an oral-surgery assistant from February 1, 2005, until she was discharged on May 11, 2006.  Relator worked for oral surgeon Dr. Thomas Keane, respondent’s owner.  Keane used the Schedule-II narcotic fentanyl in his practice.  Keane testified that fentanyl is “highly abused on the street.”  Respondent maintained a bound logbook with numbered pages to keep track of fentanyl use.  The surgery assistants were responsible for entering data into the logbook. 

            At the end of each surgery, the assistants counted the number of syringes of fentanyl that were used during the surgery.  That information was entered into both an electronic patient record and the logbook.  At the end of each day, the amount of fentanyl listed in the logbook was balanced against the amount of fentanyl remaining in stock.   

If a mistake occurred in a logbook entry, the proper procedure for correcting the entry was to draw a line through the incorrect entry and then write the correct entry.  Then the employee who made the mistake and another assistant were required to initial the entry to verify the error.  If the assistants were not able to resolve a discrepancy, they were to report the matter to Keane.  Relator received training about this procedure.           The back-staff supervisor, Melissa Maher, was responsible for comparing the logbook entries with patient records.  When Maher returned from maternity leave at the beginning of May 2006, she reviewed the logbook entries from when she had been on leave and discovered that a page for a date in January 2006 had been ripped out of the logbook. 

            By comparing the information on the pages near the one that had been torn out with the information in patient records, Maher discovered a discrepancy between the amount of fentanyl entered in the logbook for a patient and the amount entered in that patient’s record.  The logbook indicated that the patient had received two more cc’s of fentanyl than the patient’s record indicated that the patient had received. 

            Relator initially denied to Maher that she knew why the page had been ripped out of the logbook.  Because all of the entries for January 6, 2006, were in relator’s handwriting, Keane and Maher confronted relator about the ripped-out page.  Keane testified that relator admitted ripping out the page but said that she could not remember why she did it. 

            Relator was discharged from her employment, and she filed a claim for unemployment benefits with respondent Department of Employment and Economic Development.  A department adjudicator determined that relator was discharged for employment misconduct and, therefore, was disqualified from receiving unemployment benefits.  Relator appealed, and an evidentiary hearing was held before a ULJ.

            At the hearing before the ULJ, relator testified that she ripped the page out of the logbook because there were three errors on the page, which made it difficult to make the corrections on one page.  Relator testified that when the discrepancy between the amount of fentanyl recorded in the logbook and the amount remaining in stock could not be resolved by the assistants, they discussed the matter with Keane, and he remembered that they had used four cc’s on a patient for whom two had been recorded in the logbook.  Relator testified that she told Keane that she had ripped out the page, and he did not say anything to her about that being improper. 

            Keane testified as follows that a conversation with him about the discrepancy did not take place:

Q         Is it possible that that conversation took place?

A         No, it isn’t.

Q         Why not?

A         Because . . . the problem is I can’t really remember from patient to patient when I’m seeing one every 20 to 30 minutes, how much drug was administered to a patient. . . . [T]hat’s why I have competent assistants to keep track of that.


Q         . . . [A]re you saying that you would not express an opinion as to how much drugs had been given to a patient at the end of the day?


A         No, I certainly wouldn’t because I wouldn’t trust myself to know exactly what a patient had had. . . . [W]e see 12 surgeries a day.  I can’t remember exactly what drugs a patient, I mean I assume that she meant that this conversation occurred some time after the patient was treated . . . that same day but later in the afternoon, I would not have remembered that.  I don’t, when we need another drug, it’s like I said before, we call for it and it’s brought in and then it’s recorded appropriately. 


Following the hearing, by findings of fact and decision issued August 17, 2006, the ULJ determined that relator was discharged for misconduct and affirmed the determination of disqualification.  Relator filed a request for reconsideration.  On September 20, 2006, the ULJ issued an order affirming the August 17, 2006 decision.  Following submission of written argument by relator, the ULJ issued an amended order of affirmation on September 28, 2006.  The amended order of affirmation ordered the September 20, 2006 decision withdrawn, affirmed the August 17, 2006 decision, and explained why the ULJ rejected relator’s arguments regarding witness credibility.  This certiorari appeal followed.


            This court reviews the decision of the ULJ to determine whether

the substantial rights of the petitioner may have been prejudiced because the findings, inferences, conclusion, or decision are:

            (1) in violation of constitutional provisions;

            (2) in excess of the statutory authority or jurisdiction of the department;

            (3) made upon unlawful procedure;

            (4) affected by other error of law;

            (5) unsupported by substantial evidence in view of the entire record as submitted; or

            (6) arbitrary or capricious.


Minn. Stat. § 268.105, subd. 7(d) (2006).

            “Whether an employee engaged in conduct that disqualifies the employee from unemployment benefits is a mixed question of fact and law.”  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  Whether an employee committed an act alleged to be misconduct is a fact question.  Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  This court defers to the ULJ’s findings of fact.  Skarhus v. Davanni’s Inc., 721 N.W.2d 340, 344 (Minn. App. 2006); see also Ywswf v. Teleplan Wireless Servs., Inc., 726 N.W.2d 525, 530-31 (Minn. App. 2007) (explaining current procedure for obtaining review of unemployment-benefits decisions).  This court will reverse findings if they are “unsupported by substantial evidence in view of the entire record as submitted.”  Minn. Stat. § 268.105, subd. 7(d)(5).  Whether a particular act constitutes employment misconduct under Minn. Stat. § 268.095, subd. 6 (Supp. 2005), is a question of law, which we review de novo.  Schmidgall, 644 N.W.2d at 804; Scheunemann, 562 N.W.2d at 34. 

            “Employment misconduct” is defined 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.”  Minn. Stat. § 268.095, subd. 6(a) (Supp. 2005).  But employment misconduct is not “inadvertence, simple unsatisfactory conduct, a single incident that does not have a significant adverse impact on the employer, conduct an average reasonable employee would have engaged in under the circumstances, poor performance because of inability or incapacity, [or] good faith errors in judgment.”  Id.

            Relator argues that she made a good-faith error in judgment in correcting a logbook error in a manner that she believed appropriate.  But the circumstances in which relator corrected the error did not call for the exercise of judgment or discretion by relator.  Rather, there was an established procedure in place for correcting errors in the logbook, and relator, who had received training about the procedure, did not follow the established procedure.  “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.

            Relator also argues that ripping out the page in the logbook was a single incident that did not have an adverse impact on the employer.  But there was evidence regarding the importance of keeping accurate records about the use of fentanyl, which is a Schedule-II narcotic that is “highly abused on the street.”  Following established recordkeeping procedures was a way of maintaining accuracy. 

Relator’s conduct might ultimately have produced an accurate record of fentanyl use, but because the established recordkeeping procedure was not followed, the record does not accurately reflect what occurred during the recordkeeping process.  This has an adverse impact on the employer because the missing logbook page indicates that recordkeeping procedures were not followed, which could raise a suspicion that respondent employer’s fentanyl use has not been accurately recorded, and the employer cannot provide an explanation for the discrepancy between the logbook and the patient’s record. 

            Finally, relator challenges the ULJ’s credibility determinations with respect to respondent employer’s witnesses.  The ULJ specifically addressed credibility:

[Relator] points out that, in a written submission, Keane states that a bound Fentanyl log with numbered pages is required by the DEA [Drug Enforcement Agency], while in testimony, Keane stated that the DEA only requires that the licensed provider keep an accurate record of the patient name, the amount of Fentanyl administered, and the date of the treatment.  This minor inconsistency between the written submission and the testimony is not enough to substantially impeach Keane's testimony.  [Relator] also points out that Keane was subject to disciplinary action by the Minnesota Board of Dentistry for overcharging patients.  That action is irrelevant and does not substantially impeach Keane’s testimony. . . . Keane’s testimony that [relator] did not show him that she had ripped a page out of the Fentanyl log makes more sense and is more believable than Simmons’ testimony that Keane condoned that practice.


            [Relator] also argues that Keane violated a patient’s right to confidentiality in his testimony.  Even if this is true, it is irrelevant to the decision.


            [Relator] refers to Keane’s testimony that the Fentanyl syringes are counted at the end of each surgery and argues that such a practice would be unlikely because syringes would be disposed of in a sharps container.  [Relator], who was familiar with surgical procedures at Esthesia, did not submit any contrary testimony at the hearing.  There is no evidence in the record indicating that such a practice would be unlikely.


            [Relator] argued that the testimony by Esthesia, that there were only two or three Fentanyl log mistakes a year was unlikely in light of [relator’s] testimony that there were three errors on the page she ripped out.  This issue is tangential and is not germane to the issue of whether [relator’s] action in ripping out the page of the Fentanyl log was a good faith effort to neaten up the log or an effort by [relator] to hide a discrepancy in the Fentanyl records.


            It is true that the testimony of one of Esthesia’s witnesses, Kimberly Story, on the reason that [relator’s] actions came to light, contains inconsistencies and is not credible.  [Relator], however, admitted that she ripped the page out of the log, so the manner in which the loss of the page was discovered is not an important part of the evidence showing what [relator] did. 


            Credibility issues are to be resolved by the ULJ, and this court will defer to the ULJ’s credibility determinations on appeal.  Nichols v. Reliant Eng’g & Mfg., Inc., 720 N.W.2d 590, 594 (Minn. App. 2006); see also In re Excess Surplus Status of Blue Cross & Blue Shield of Minn., 624 N.W.2d 264, 278 (Minn. 2001) (stating that courts are to defer to an agency’s conclusions regarding conflicts in testimony, weight to be given testimony, and inferences to be drawn from testimony).  The ULJ fully explained the bases for individual credibility determinations, and in light of the credibility determinations, the record supports the ULJ’s findings of fact.  See Minn. Stat. § 268.105, subd. 1(c) (2006) (stating that “[w]hen the credibility of an involved party or witness testifying in an evidentiary hearing has a significant effect on the outcome of a decision, the [ULJ] must set out the reason for crediting or discrediting that testimony”).

            There has been no allegation that relator or anyone associated with respondent employer improperly used fentanyl, and we find no basis in the record to conclude that anything more serious than a recordkeeping error has occurred.  But relator’s admission that she tore the page from the logbook demonstrates that relator failed to follow the recordkeeping procedure that her employer had the right to reasonably expect her to follow.  Relator’s failure to follow this procedure was employment misconduct.