Charles W. Caron, Relator, vs. Multimedia Holdings Corp., Respondent, Department of Employment and Economic Development, Respondent.

Charles W. Caron, Relator, vs. Multimedia Holdings Corp., Respondent, Department of Employment and Economic Development, Respondent. A05-2407, Court of Appeals Unpublished, December 12, 2006.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-2407

 

Charles W. Caron,

Relator,

 

vs.

 

Multimedia Holdings Corp.,

Respondent,

 

Department of Employment and Economic Development,

Respondent.

 

Filed December 12, 2006

Reversed Willis, Judge

Concurring specially, Ross, Judge

 

 

Department of Employment and Economic Development

File No. 1311905

 

Charles W. Caron, 360 Park Meadows Drive, Apt. 306, Waite Park, MN  56387-1486 (pro se relator)

 

Multimedia Holdings Corp., St. Cloud Times, 7950 Jones Branch Drive, Mc Lean, VA  22107-0001 (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 Ross, Presiding Judge; Willis, Judge; and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

Relator appeals from an unemployment-law judge's (ULJ) determination that relator was discharged for employment misconduct and is, therefore, ineligible to receive unemployment benefits.  Because we conclude that there was a reasonable basis for relator's belief that his employer acted unlawfully by demanding that relator submit to a physical examination, we reverse.  

FACTS

Relator Charles W. Caron was employed as a packager by Multimedia Holdings Corp. from June 17, 1989, through March 16, 2005.  On March 3, 2005, a supervisor saw Caron standing in a pool of his own blood.  The supervisor reported the incident to Allen Jungels, the production manager, who in turn told Mark Milam, the human-resources director.

            On March 7, 2005, Caron met with Milam, who told Caron that to ensure workplace safety it was necessary for Caron to have a medical assessment. Milam also told Caron that Multimedia would pay for the assessment at the clinic used by Multimedia for workers'-compensation medical examinations.  But Caron declined to allow Multimedia access to his medical records and refused the assessment, noting that he did not believe that Multimedia had the legal right to force him to use a doctor not of his own choice. Milam told Caron that he could use his own doctor if Milam had the opportunity to explain to the doctor what happened and what Multimedia was "looking for."  After further discussions, Milam told Caron to "think about it and get back to" him.

            On March 10, 2005, Caron went to a doctor in Brainerd.  The doctor gave Caron a back-to-work release form that stated that Caron may return to work if his ankle was properly bandaged with a dressing and if he wore a support sock.  Caron contacted Jungels and told him that he had been given a release to return to work.  After Jungels consulted with Milam, he told Caron that Caron needed to speak personally with Milam. Caron refused to do so and had no further contact with Multimedia.  On March 16, 2005, Caron was discharged for "his failure to comply with Multimedia's requests related to his medical condition."

Caron applied for but was denied unemployment benefits.  An adjudicator from respondent Department of Employment and Economic Development determined that Caron's "refusal to obtain information from a doctor about his injury" demonstrated a lack of concern for his employment.  Caron appealed, and at the hearing before the ULJ, Caron testified that he thought that "it was within [his] rights to have the physicians that [he wanted] to work on [him]."  Caron also testified that he told Jungels that he "thought [his return-to-work release] was acceptable and adequate" and that he would "seek the legal means . . . to submit the release form that [he had] already obtained."

The ULJ found that Caron was discharged for employment misconduct.  Specifically, the ULJ held that Caron's "initial refusal to be seen by Multimedia's doctor when he did not have a doctor of his own" and, subsequently, his refusal to contact Milam when requested to do so, constituted misconduct, which disqualified Caron from receiving unemployment benefits.  The ULJ made no findings regarding Caron's claim that Multimedia acted unlawfully by demanding that he see Multimedia's doctor and by not accepting his back-to-work release.  Caron requested reconsideration, the ULJ affirmed his earlier determination, and this certiorari appeal follows.

D E C I S I O N

Caron argues that his conduct was reasonable, and therefore not misconduct, because requiring him to undergo a post-employment physical examination is an unfair employment practice under the Minnesota Human Rights Act (MHRA), Minn. Stat. § 363 A. 20, subd. 8(a)(2) (2004), and because the federal Family and Medical Leave Act of 1993 (FMLA), 29 U.S.C. §§ 2601-54 (2000), "prohibits reprisals by the employer against employees away from work for medical reasons."

This court may affirm, remand for further proceedings, reverse, or modify the ULJ's decision.  Minn. Stat. § 268.105, subd. 7(d) (Supp. 2005).  Reversal or modification is appropriate when

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.

 

Id. Here, Caron argues that the ULJ erred as a matter of law.

Whether an employee's acts constitute misconduct is a mixed question of fact and law. Schmidgall v. Filmtec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  We review the ULJ's factual findings regarding the employee's acts in the light most favorable to the findings and will not disturb those findings if substantial evidence in the record supports them.  Id.; see Minn. Stat. § 268.105, subd. 7(d).  But whether the acts constitute misconduct is a question of law, which we review de novo.  Schmidgall, 644 N.W.2d at 804.

An employee is ineligible for unemployment benefits if the employee was discharged because of the employee's own misconduct.  Minn. Stat. § 268.095, subd. 4 (2004).  Employment misconduct is an "intentional, negligent, or indifferent conduct" that is either a serious violation of behavior the employer had a reasonable right to expect or clearly evidences a "substantial lack of concern" for the employee's responsibilities.  Id., subd. 6(a).  But conduct that is objectively reasonable under the circumstances is not misconduct.  Id.

            An employer has the right to expect that its employees will obey reasonable requests.  Vargas v. Nw. Area Found., 673 N.W.2d 200, 206 (Minn. App. 2004), review denied (Minn. Mar. 30, 2004).  As a consequence, it is well accepted that an employee's refusal to obey an employer's reasonable request is misconduct.  Soussi v. Blue & White Serv. Corp., 498 N.W.2d 316, 318 (Minn. App. 1993).  If the employee reasonably believes that the employer's request is unlawful, refusal to obey the request is not misconduct.  Christenson v. City of Albert Lea, 409 N.W.2d 564, 566 (Minn. App. 1987); see also Eyler v. Minneapolis Star & Tribune Co., 427 N.W.2d 758, 761 (Minn. App. 1988) (noting that it is not misconduct to refuse to obey an "unlawful order").

Caron argues that Multimedia's acts were unlawful under the MHRA, Minn. Stat. § 363A (2004), and the FMLA, 29 U.S.C. §§ 2601-54.  Caron argues that Minn. Stat. § 363 A. 20, subd. 8(a)(2), of the MHRA prohibits an employer from requiring an employee to undergo a post-employment physical examination and that Minn. Stat. § 363 A. 08 prohibits an employer from terminating an employee who refuses to consent to such an examination.  Caron also argues that the FMLA prohibits "reprisals by the employer against employees [who are] away from work for medical reasons."

            As an initial matter, Caron's reliance on the FMLA is misplaced. The FMLA requires leave only because of a "serious" health condition that leaves the employee unable to perform his employment responsibilities.  29 U.S.C. § 2612(a)(1)(D) (2000).  Caron does not claim that he was unable to perform his employment responsibilities; indeed, Caron's own back-to-work release attests that he was able to do so, with his ankle properly bandaged.

But Caron's argument that the MHRA prohibits an involuntary post-employment physical examination has some basis in the law.  There are two apparently applicable sections.  Section 363 A. 08 broadly prohibits, among other things, pre-employment physical examinations.  Minn. Stat. § 363 A. 08, subd. 4(a)(1).  Section 363 A. 20, subdivision 8(a)(2), on the other hand, expressly authorizes post-employment physical examinations with the consent of the employee for the purposes of determining the employee's ability to continue to perform the job; if mandated by local, state, or federal law; to reasonably accommodate an employee; to comply with the workers'-compensation or drug-free-workplace statutes; or for other legitimate business purposes not otherwise prohibited by law.  

 It is not clear why the statute expressly authorizes a post-employment physical examination with an employee's consent when nowhere does the MHRA prohibit involuntary post-employmentas opposed to pre-employmentphysical examinations.  But this might suggest that post-employment physical examinations are prohibited unless the employee consents.  A similar federal statute has created the same uncertainty.  See Tice v. Centre Area Transp. Auth., 247 F.3d 506, 514 (3d Cir. 2001) (noting that it is not clear whether the ADA permits examinations to determine ability to perform job-related functions but not intended to discover whether the employee is disabled).

            Also, respondent department argues that Caron cannot claim that Minn. Stat. § 363 A. 20, subd. 8(a)(2), prohibits a post-hire physical examination because he makes no claim that he is disabled.  The department offers no authority to support its argument.  Arguments based on mere assertions without supporting authority are generally waived unless prejudicial error is obvious on mere inspection.  See State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997).  We see no such prejudicial error here.  

            Because of the ambiguity created by the manner in which the statute is constructed, we conclude that there is a reasonable basis for Caron's belief that Multimedia's actions were unlawful.  An employee's reasonable belief that his employer's request is unlawful is a ground on which the employee may refuse that request.  Christenson, 409 N.W.2d at 565 (stating that the department must determine whether the relator "reasonably believed" that compliance with her supervisor's request would be illegal); see also Eyler, 427 N.W.2d at 761 (holding that it is not misconduct to refuse to follow an unlawful order).  As we have noted, the structure of the statute is confusing, and it is reasonable to conclude that because the statute expressly authorizes voluntary post-employment physical examinations, involuntary physical examinations are prohibited.

            At the hearing, Caron testified that he thought that "it was within [his] rights to have the physicians that [he wanted] to work on [him]" and that his back-to-work release "was acceptable and adequate."  Although we acknowledge that there is no express prohibition of post-employment physical examinations in the MHRA, we conclude that Caron's belief that Multimedia acted unlawfully had a basis in law and was reasonable.  Because an employee may refuse an employer's request based on his reasonable belief that the request is unlawful, Caron did not commit misconduct and is, therefore, entitled to unemployment benefits.

Reversed.

 

ROSS, Judge (concurring specially)

I agree with the majority's decision to reverse the ULJ's determination that Charles Caron was discharged for employment misconduct.  I write separately to apply a critical distinction between the treatment of two materially different types of employer requests: requests that may, if obeyed, result in an employee violating a law, and requests that are themselves a violation of law.  When the employer's request itself is unlawful, I believe it is irrelevant to an unemployment-benefits analysis whether the employee's refusal rests on a reasonable belief about its unlawfulness.  I would interpret the Minnesota Human Rights Act (MHRA) and hold that Multimedia made illegal employment demands, which Caron was not required to obey and the disregard of which cannot be a basis for disqualification from receiving unemployment benefits regardless of the reasonableness of Caron's belief.

I agree with the majority's premise that an employee's reasonable belief that his employer has asked him to engage in illegal conduct removes his obligation to obey the request.  Christenson v. City of Albert Lea, 409 N.W.2d 564, 566 (Minn. App. 1987).  But I disagree that the primary issue here is whether Caron reasonably believed Multimedia's demands were unlawful.  Caron's belief about the law is not relevant here.  In Eyler, this court clarified that "[i]t is not, as a matter of law, misconduct to fail or refuse to follow an unlawful order."  Eyler v. Minneapolis Star & Tribune Co., 427 N.W.2d 758, 761 (Minn. App. 1988). The Eyler court remanded only to determine the facts necessary to decide as a matter of law "whether the employer required [the employee] to work illegal hours in violation of DOT regulations."  Id.  The court reasoned that "if the employer required Eyler to work illegal hours, his actions in coming in late should not be characterized as misconduct."  Id.  Whether the employee's refusal to follow orders in Eyler constituted disqualifying misconduct therefore depended only on whether the employer's demand violated the law.

Eyler presents a different issue than Christenson.  In Christenson, the reasonableness of the employee's belief about the law was the primary concern.  An employee should not have to bear the pain of disqualification if, for example, she reasonably questions whether following her employer's directive would cause her to violate state or federal law.  Christenson, 409 N.W.2d at 566 (remanding with direction to accept evidence of the employee's knowledge and understanding of HUD regulations to determine reasonableness of refusal to obey a directive that the employee believed would require her to violate those regulations).  But in this case, like Eyler, it may be determined as a matter of law that the request is itself an unlawful demand that infringes on a statute designed to protect the employee, rather than a demand that arguably would lead the employee to break the law by obeying it.  Reasonableness of belief about the law is therefore irrelevant.  Indeed, even if an employee erroneously believes that an unlawful demand is lawful, still, under Eyler, she should not be disqualified for refusing to follow the demand simply because it is unlawful.[1]

The majority accurately concludes that Caron's belief "that Multimedia acted unlawfully has a basis in law."  Because this case turns on the actual unlawfulness of Multimedia's demands, I would interpret the MHRA and answer whether it prohibits or allows a current employer to require an employee to submit to a medical examination and to disclose information from that examination to the employer to confirm that the employee is fit for duty.  If Multimedia's requirements of Caron are prohibited as a matter of law under the MHRA, Caron's belief about the requirements, reasonable or not, does not control.  The primary question, then, is whether Multimedia's requirements of Caron regarding the medical examination were unlawful.  I believe they were, because they violate the MHRA.

I agree generally with the majority's concern about the statute; the MHRA's limits on an employer's demand for an employee's nonconsensual physical examination or medical information is not immediately apparent because of the manner in which the statute is organized.  The statute, at section 363 A. 20, subdivision 8(a)(2), seems to make an exception for conduct that the MHRA does not expressly prohibit.  Compare Minn. Stat. § 363 A. 20, subd. 8(a)(2) (2004) (exempting as "not an unfair employment practice" an employer's obtaining an existing employee's medical information for specified purposes with the employee's consent) with id. § 363 A. 08, subd. 4 (2004) (generally prohibiting as an "unfair employment practice" an employer's requiring a person to undergo a physical examination before that person becomes an employee).  But I believe that the statute is clear enough on its face that it must be interpreted to generally prohibit an employer from requiring or requesting an existing employee's medical information, with several specific exceptions as noted in section 363 A. 20, subdivision 8(a).  Despite the confusing organization of the statute, I would conclude that subdivision 8(a) effectively prohibits employers from requiring employees to participate in a post-hire physical examination and to produce additional medical information.

I believe we may construe this statute without building into it a prohibition that the legislature has chosen or forgotten to erect.  This is because I do not believe this is a case, such as Wallace v. Commissioner of Taxation, where one litigant is "argu[ing] that [a controlling] statute does not mean what it says," calling for the supreme court to respond that "courts cannot supply that which the legislature purposely omits or inadvertently overlooks."  289 Minn. 220, 229-30, 184 N.W.2d 588, 593-94 (1971).  This is instead a case requiring us to interpret a statute that is ambiguous because of its awkward arrangement and termsan interpretation duty foreseen by the legislature.  See generally Minn. Stat. §§ 645.001-.51 (2004) (directing the interpretation of statutes to discern meaning that, on the face of a statute, may be clear, ambiguous, facially irreconcilable, obvious, or not at all obvious).  We should resolve the ambiguity by connecting the pieces of the awkwardly assembled statute to reach its obvious requirements and prohibitions, without adding a word to the statute.  See id. § 645.16 (directing statutory interpretation to give effect to the intent of the legislature even "[w]hen the words of a law are not explicit" but where "the intention of the legislature may be ascertained" under the rules of construction).

We may resolve the ambiguity here by looking directly to the express language to determine the extent of the prohibition.  And we must consider the lack of an express prohibition in context with the exception to determine if the prohibition is inevitable.  Subdivision 8 identifies the exceptions to the MHRA's general prohibitions regarding physical examinations by first addressing pre-hire job candidates.  It expresses that it is not an unfair practice for an employer to "require or request" a job applicant to undergo a physical examination and to produce her medical history in order to establish her fitness for the job, "provided" (meaning, on the exclusive condition that) certain stated circumstances exist.  Id. § 363 A. 20, subd. 8(a)(1) (2004).  The subdivision's next segment follows in logical sequence to address the rights of individuals after they have been hired.  It allows an employer to obtain "additional medical information" (which must refer to post-hire medical information in addition to the pre-hire information just discussed in subdivision 8(a)(1)) on the condition that the employee consents to it and on additional limits as to purpose.  Id., subd. 8(a)(2) (emphasis added).  So despite the statute's overall failure to expressly prohibit employers from requiring or requesting existing employees to undergo physical examinations and to produce medical information, the general prohibition can be discerned from the exhaustive, conditional exceptions.

Put simply, the prohibition must be inferred from the exception.  Subdivision 8(a)(1) defines certain requests for medical information before hire and identifies them as exceptions to the express prohibition found at section 363 A. 08, subdivision 4.  Subdivision 8(a)(2) immediately and logically follows subdivision 8(a)(1); it identifies requests for medical information after hire and it constitutes a similar safe harbor, but one without an express corollary prohibition.  The safe harbor implies a stormy sea, expressly shown or not; the legislature's intentional creation of the detailed and apparently exhaustive exception inevitably implies the prohibition.  Together, the segments of subdivision 8 describe the scope of an employer's allowable medical inquiry of persons before and after hire, and under this construction employers may not require employees to undergo a physical examination to determine continued fitness for duty.

Although this interpretation has not been the subject of a published opinion, it is the accepted view of at least one commentator.  See 17 Stephen F. Befort, Minnesota Practice § 10.27 & n.1 (2d ed. 2003) (interpreting the previously numbered provision and stating, "Medical examinations during the course of employment are permitted only in limited circumstances.").  Professor Befort opines broadly that "[t]his means that Minnesota employers can conduct medical examinations and make medical inquiries of current employees only with employee consent."  Id. § 10.27 n.5.  I would hold that employee consent is always required, with the exceptions specifically noted within the subdivision itself.  These exceptions point to other statutory provisions, which allow employers the limited right to require examinations of employees to test for drug usage or to support the employee's claim for workers' compensation.  Minn. Stat. § 363 A. 20, subd. 8(a)(2).  Although the statute confuses matters further by including these exceptions for what might be considered nonconsensual evaluations within the provision that allows inquiry "with the consent of the employee," I would construe this commingling as mere inartful drafting so that every element of the subdivision has logical meaning.  See id. § 645.16 ("Every law shall be construed, if possible, to give effect to all its provisions.")

On this construction, Multimedia's demands were unlawful because they required Caron to be examined by a physician and to provide Multimedia with the physician's medical opinion regarding Caron's fitness for duty.  I would conclude that because Caron need not follow an unlawful demand, his refusal is reasonable per se under Eyler, and therefore not disqualifying.

I would reverse and merely echo the Eyler holding: "It is not, as a matter of law, misconduct to fail or refuse to follow an unlawful order."  Unlike Eyler, the material facts as to whether the employer's request violated the law are not in dispute.  That Minnesota employers ought to be permitted to demand employee medical examinations in the interest of workplace safety might be a reasonable exception to the broad prohibition against employer intrusion.  Reasonable or not, however, that exception does not exist in the MHRA, and Multimedia's demands therefore were not lawful.  Consequently, I would reverse on that ground rather than on the reasonableness of Caron's belief about unlawfulness.

[1]             I recognize that the Eyler court also discussed reasonableness in addition to the direct lawfulness analysis I suggest should be applied here.  But Eyler addressed a request that was not only unlawful but that, if obeyed, would also arguably result in the employee violating the law.  By contrast, here, while the demands for medical examination and information are unlawful, Caron's obedience would certainly not have been.