This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-02-1151

 

Kathleen M. Pribble,

Relator,

 

vs.

 

Edina Care Center,

Respondent,

 

Commissioner of Economic Security,

Respondent.

 

Filed March 11, 2003

Affirmed

Hudson, Judge

 

Department of Economic Security

File No. 10841 01

 

Kathleen M. Pribble, 9290 Boiling Springs Lane East, Shakopee, Minnesota 55379-8041 (pro se relator)

 

Edina Care Center, 6200 Xerxes Avenue South, Edina, Minnesota 55423 (respondent)

 

Nicholas J. O’Connell, Certified Student Attorney, Keith Goodwin, Department of Economic Security, 390 North Robert Street, St. Paul, Minnesota 55101 (for respondent Commissioner)

 

            Considered and decided by Kalitowski, Presiding Judge, Minge, Judge, and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

HUDSON, Judge

            In this pro se certiorari appeal, relator Kathleen Pribble (Pribble) argues that the commissioner’s representative wrongly determined that she was disqualified from receiving unemployment benefits.  Pribble maintains that she was not properly trained for her position and that her termination was retaliatory for reporting sexual harassment in the workplace.  Because we conclude that the evidence in the record supports the commissioner's representative’s determination, we affirm.

FACTS

            Edina Care Center (employer) hired Pribble, a licensed practical nurse (LPN), on December 10, 2000, to fill the position of health unit coordinator (HUC).  On June 18, 2001, Pribble reported to Susan Osbakken, a human resources representative, that a male coworker twice sexually assaulted her in the workplace.  Pribble reported that, on June 15, 2001, the coworker cornered her in an elevator, held her arms over her head and tried to kiss and rub up against her.  On June 18, 2001, the coworker followed Pribble into the kitchen and engaged in similar behavior.  Osbakken spoke with the coworker about Pribble’s allegations and reviewed the sexual harassment policy with him.  The coworker claimed that he and Pribble were only "talking," but apologized for making her feel uncomfortable.  Several days later, Pribble told Osbakken that he had apologized and that his behavior had improved.  At some point, however, his behavior turned offensive again.

            On July 20, 2001, medical records supervisor Debra Feyder issued Pribble a written warning, informing her that her job was in jeopardy if she did not show improvement in documenting patient charts, and updating physician orders and clinic referrals.        On July 23, 2001, Osbakken received a note from Pribble objecting to the July 20, 2001, written warning for improper charting.  Pribble also informed Osbakken that the coworker's behavior had turned offensive again.  Pribble told Osbakken that she felt the counseling sessions on the quality of her work were in retaliation for the sexual harassment complaints she filed.  Osbakken told Pribble that the two issues were unrelated.  On August 1, 2001, Osbakken and medical records supervisor Deb Feyder spoke with Pribble about her continued inappropriate charting.  Pribble claimed that she was not properly trained and that she performed her job duties in accordance with her minimal training; she was then thoroughly retrained in those areas. 

            Pribble filed a lawsuit against employer on August 10, 2001, alleging the coworker's sexual assault and continued sexual harassment.

            On August 22, 2001, Pribble received a written warning concerning her improper charting.  After this warning, two other nurses reported that they observed Pribble copy and send via facsimile portions of resident charts.  When Osbakken confronted Pribble and asked for the documents that Pribble had faxed, Pribble replied, "[t]here's really no need to get the documents back because I've already faxed them to my attorney."  Osbakken admitted employer had not trained Pribble with respect to patient confidentiality, but Feyder testified that Pribble should have been previously taught state and federal patient confidentiality laws while studying to become an LPN.

            Pribble apparently left the charts she copied intact, but refused to give Osbakken copies of the pages she had faxed.  Feyder testified that she looked through papers on Pribble's desk and saw confidential patient information in Pribble's personal folder.  Specifically, Feyder saw a clinic referral form in Pribble's folder.  Feyder did not recall the name of the resident, but noted the date was "seven-something," the pick-up time 3 p.m., and the mode of transportation listed as either the "cart" or "Twin City Transport."  In addition, Feyder observed a copy of a nurse’s note for a resident containing a nurse's entry at the top of the page and Pribble's hand-written comments near the bottom.  Pribble admits that she faxed confidential information, but denied they were patient records.  Pribble testified that she faxed her attorney documents relating to her case, but denied the documents were from resident charts.

            Employer suspended Pribble to investigate these claims.  A few days later, employer notified Pribble that her employment was terminated.  Pribble sought unemployment benefits, and the commissioner of economic security approved her application.  Employer appealed.  After a hearing, an unemployment law judge found that Pribble had committed misconduct and was disqualified from receiving further benefits.  The commissioner's representative affirmed the unemployment law judge's finding of misconduct.  This pro se certiorari appeal followed.

D E C I S I O N

This court applies a narrow scope of review to economic security appeals.  We review the factual findings of a commissioner’s determination in a light most favorable to the findings, and we leave that determination undisturbed so long as the record reasonably supports the factual findings.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  But the commissioner’s representative’s legal conclusions do not bind this court.  Central Specialties, Inc. v. Comm’r of Econ. Sec., 622 N.W.2d 833, 835 (Minn. App. 2001), review denied (Minn. May 15, 2001). 

Unemployment “benefits extend only to persons unemployed through no fault of their own.”  Ress v. Abbott N.W. Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).  An employee discharged for misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4 (2002).  Whether an employee committed misconduct that disqualifies eligibility for unemployment benefits is a mixed question of law and fact.  Colburn v. Pine Portage Madden Bros., Inc., 346 N.W.2d 159, 161 (Minn. 1984).  Whether an employee committed a specific act is a question of fact.  Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  But whether a specific act constitutes misconduct is a question of law reviewed de novo.  Schmidgall, 644 N.W.2d at 804.   

            Disqualifying “misconduct” is defined by statute as

(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 * * * .

 

Minn. Stat. § 268.095, subd. 6(a) (2002).  Misconduct must be shown by a preponderance of the evidence.  Minn. Stat § 268.03, subd. 2 (2002).  An employee may commit misconduct by refusing to comply with an employer’s reasonable requests and/or policies.  See McGowan v. Executive Express Transp. Enters., Inc., 420 N.W.2d 592, 596 (Minn. 1988).  A single deliberate act adverse to the employer may constitute misconduct.  Ress, 448 N.W.2d at 524.  Specifically, a violation of patient records confidentiality constitutes misconduct.  Group Health Plan, Inc.  v. Lopez, 341 N.W.2d 294, 297 (Minn. App. 1983).  

Confidentiality of patient records is a very important matter in a hospital or medical situation.  Records privacy is a patient's right.  A violation of confidentiality could subject the health care institution to a malpractice claim.  A hospital has the right to expect its employees to keep patient records confidential.

 

Id. (citations omitted).

            Pribble challenges the sufficiency of evidence that she committed employment misconduct.  The commissioner's representative's findings, when viewed as a whole, tend to support the overall conclusion of misconduct.  The findings do reflect minor discrepancies with the record, specifically in the number of times Pribble was warned about her employment misconduct and the exact date of these warnings.  But the representative's ultimate conclusion that Pribble committed misconduct is amply supported in the record.

            Pribble denies faxing confidential patient information, but the record shows otherwise.  Pribble testified, "I'm not denying I faxed confidential information to my attorney but it was not out of a chart, it was concerning * * * " but, at that point, the unemployment law judge interrupted Pribble and did not allow her to finish.  Later, after testifying that she did not fax any information from resident charts or files, Pribble admitted that she did fax a referral form to her attorney on the day in question

[F]or my attorney’s purpose to see what they were referring to as far as what I was doing wrong, but it was not anybody in particulars (sic) notes. * * * It was an incident in a referral report but it wasn’t with any bodies [sic] specific name on it.

 

Pribble did not produce the fax she sent to her attorney or the confirmation slip to prove these assertions.  Moreover, Pribble’s testimony was directly contradicted by two other nurses who personally witnesses Pribble faxing patient records.  Therefore, the record supports the commissioner’s representative’s conclusion that Pribble committed employment misconduct.

            Additionally, Pribble’s claim that the counseling sessions and ultimate termination were in retaliation for her sexual harassment complaints is unsupported by the record.  Employer took her complaint seriously, as evidenced by the fact that the complaint was investigated and employer spoke with the coworker in question.  What the record does support is that Pribble committed employment misconduct when she faxed confidential patient information to her attorney.  See id. (finding violation of patient confidentiality in medical records employment misconduct).  "[I]f there is one unique area of employment law where strict compliance with protocol and militarylike discipline is required, it is in the medical field."  Ress, 448 N.W.2d at 525.  Despite the minor factual discrepancies, the commissioner’s representative’s decision is amply supported by the record.

Affirmed.