A05-1951

John Hatgidakis,

Relator,

vs.

Fairview Health Services,

Respondent,

Department of Employment and Economic Development,

Respondent.

Filed August 15, 2006

Affirmed

Willis, Judge

Department of Employment and Economic Development

File No. 388105

Peter B. Knapp, Kerri J. Nelson (certified student attorney), William Mitchell Law Clinic, 875 Summit Avenue, St. Paul, MN 55105 (for relator)

Fairview Health Services, 2450 Riverside Avenue, Minneapolis, MN 55454-1540 (respondent)

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

Considered and decided by Willis, Presiding Judge; Lansing, Judge; and Parker, Judge.*

U N P U B L I S H E D O P I N I O N

WILLIS, Judge

Relator challenges the determination that he was discharged for employment misconduct and is, therefore, disqualified from receiving unemployment benefits. We affirm.

FACTS

From 1984 until January 2005, relator John Hatgidakis was employed by Fairview Hospital and Health Center. He worked in Fairview’s Multiple Sclerosis Achievement Center (MSAC), which provides services for persons with multiple sclerosis, who are referred to as “members” of MSAC. In January 2004, Fairview authorized the filming of a documentary at MSAC. Hatgidakis ultimately was directed to obtain authorizations to be filmed from approximately 30 members of MSAC and to deliver the completed authorizations to Fairview’s public-relations department. He obtained signatures on blank authorizations that were never fully completed or dated. In December 2004, the incomplete authorization forms were found in Hatgidakis’s office. Fairview terminated Hatgidakis in January 2005 for failing to obtain proper authorizations; for failing to follow the requirements of the Health Insurance Portability and Accountability Act of 1996 (HIPAA), Pub. L. No. 104-191, 110 Stat. 1936; and for failing to notify Fairview of the “negative direction” that the filmmaker had taken in his documentary.

Hatgidakis established a benefits account with the Department of Employment and Economic Development, and an adjudicator determined that he was eligible for benefits. An unemployment-law judge (ULJ), however, concluded that Hatgidakis was discharged for employment misconduct and was, therefore, disqualified from receiving unemployment benefits. Hatgidakis appealed to a senior unemployment-review judge (SURJ), who also concluded that Hatgidakis was discharged for employment misconduct and was disqualified from receiving benefits. Hatgidakis’s certiorari appeal follows.

D E C I S I O N

Hatgidakis argues that he did not commit employment misconduct. He claims that he acted in good faith when he obtained signatures on blank authorizations and that the failure to complete them and deliver them to the public-relations department was “inadvertent oversight.” “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). Appellate courts review the SURJ’s findings of fact in the light most favorable to the decision and will not reverse if the evidence reasonably supports the findings. Id.[1] But whether a specific act constitutes disqualifying misconduct is a question of law, which appellate courts review de novo. Id.

“Employment misconduct” is “any intentional, negligent, or indifferent conduct . . . (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) (2004). “Inefficiency, 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, . . . [or] good faith errors in judgment if judgment was required . . . are not employment misconduct.” Id.

Before filming is permitted at MSAC, Fairview requires that a form entitled “Authorization for Photography, Filming, or Interviewing” be completed for each member to be filmed. Either the member or a staff person is to write the member’s name and personal information on the authorization. A “media” section of the authorization, which the member is to initial, requires the disclosure of information about who is filming and the use that will be made of the film. Another section allows the member to place limitations on the authorization. The member is then to sign the form in the presence of a witness.

At the hearing before the ULJ, Hatgidakis admitted that such authorizations have been required since he began at Fairview and that his job duties included obtaining authorizations. He testified that authorizations were “filled out . . . when anybody came in to do any photography or any filming or any audio taping”; that they protected Fairview and MSAC members; and that “[m]ost of the time” he completed authorizations before obtaining members’ signatures. According to Hatgidakis, filling out authorizations is “what we always did. Whenever we did [any] type of filming or photographing, these forms were the form[s] that we filled out, for years. . . .” Hatgidakis testified that in the case at issue, he told each member orally of the purpose of the authorization but that he had the members sign blank authorizations because he was “pressed for time.” He stated that he “was going to go back and [complete the authorizations] later.” But Hatgidakis still had not completed the authorizations in December 2004 when they were found in his office. Hatgidakis admitted that he had no approval from management to delay the completion of the authorizations.

Hatgidakis’s supervisor testified that she instructed Hatgidakis to have the authorizations completed before the filmmaker began filming and to deliver them to Fairview’s public-relations department. The systems director at Fairview testified that Hatgidakis had properly completed authorizations on other occasions, suggesting to her that he knew “what filling out a correct form looked like.”

An employee’s decision to knowingly violate a reasonable policy of the employer is misconduct because it demonstrates a substantial lack of concern for the employer’s interests. Schmidgall, 644 N.W.2d at 804. Hatgidakis knew that Fairview’s policy required completing authorization forms before filming began. Although he was instructed to obtain completed authorizations from MSAC members and to deliver them to the public-relations department, Hatgidakis did not do so.

Hatgidakis argues that he did not intentionally ignore completing the authorizations. But he testified that he was aware of Fairview’s policy requiring completed authorizations and that he did not have permission to delay their completion. Hatgidakis also contends that he “merely followed procedures that he had used before in obtaining Fairview Releases.” He testified that Fairview’s public-relations department had once permitted him to complete an authorization related to a brochure after photographing for the brochure occurred and that it was his “understanding” that this practice was permissible. But in the prior incident, Hatgidakis overlooked obtaining one signature, and, when the authorization was later signed, the required information had been completed. Hatgidakis’s supervisor further clarified the circumstances of this earlier incident, testifying that the brochure authorization was improperly completed in the first instance and that the public-relations department authorized Hatgidakis to correct it after photographing was finished. In the incident that led to his termination, however, Hatgidakis had patients sign uncompleted authorizations, which he did not have permission to do, and then, for almost a year, he neglected to complete the authorizations and deliver them properly.

Hatgidakis’s knowing violation of Fairview’s reasonable policy demonstrated a substantial lack of concern for Fairview’s interests and constitutes disqualifying misconduct. Because Hatgidakis was discharged for committing employment misconduct, he is not entitled to unemployment benefits, and we do not need to address his argument that he was not disloyal. We also decline to address his arguments that he did not violate HIPAA and that the “law of the case” doctrine prohibits Fairview from now claiming that he exposed it to HIPAA liability.

Affirmed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] Minn. Stat. § 268.105, subd. 7(d) (Supp. 2005), provides the standard of review applicable to ULJ decisions made after June 25, 2005. See 2005 Minn. Laws ch. 112, art. 2, §§ 34, at 709-10. Here, the ULJ’s decision was made before June 25, 2005, but the SURJ’s decision was made after that date. Because the new statute applies only to ULJ decisions made after June 25, 2005, we apply the standard of review described in Schmidgall here.