Mary K. Bucher, Relator, vs. Minnesota Lung Center Ltd., Respondent, Department of Employment and Economic Development, Respondent.

Mary K. Bucher, Relator, vs. Minnesota Lung Center Ltd., Respondent, Department of Employment and Economic Development, Respondent. A06-1790, Court of Appeals Unpublished Decision, September 18, 2007.

This opinion will be unpublished and

may not be cited except as provided by

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

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1790

 

Mary K. Bucher,
Relator,
 
vs.
 
Minnesota Lung Center Ltd.,
Respondent,
 
Department of Employment and Economic Development,
Respondent.

 

Filed September 18, 2007

Affirmed

Wright, Judge

 

Department of Employment and Economic Development

File No. 7602 06

 

 

Mary K. Bucher, 12410 69th Avenue North, Maple Grove, MN  55369 (pro se relator)

 

Minnesota Lung Center, 920 East 28th Street, Suite 700, Minneapolis, MN  55407 (respondent)

 

Lee B. Nelson, Linda A. Holmes, Department of Employment and Economic Development, E200 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101 (for respondent department)

 

 

            Considered and decided by Wright, Presiding Judge; Kalitowski, Judge; and Minge, Judge.

 

U N P U B L I S H E D  O P I N I O N

 

WRIGHT, Judge

Relator challenges the unemployment law judge's decision on reconsideration that relator was discharged for misconduct and, therefore, is disqualified from receiving unemployment benefits.  We affirm. 

FACTS

 

Relator Mary Bucher worked as a triage nurse for Minnesota Lung Center Limited (MLC) from November 1, 2002, to May 4, 2006.  Throughout her employment, Bucher received warnings, coaching, and performance-improvement plans regarding her organization, efficiency, and punctuality.  Bucher was specifically instructed to carefully scrutinize a patient's medical chart and make a "full assessment" of the patient's condition before sending out a facsimile approving or refusing a prescription refill.  She also was instructed to "call physicians with questions" and "accept the direction and comments of her supervisor and manager." 

            On April 6, 2006, a pharmacy faxed MLC an order to refill a patient's prescription for an asthma nebulizer.  The facsimile indicates that the patient's prescription was scheduled to expire the following day and that her next refill was scheduled for April 10, 2006.  It also provides the patient's name and the physician's name and phone number.  On her return facsimile, Bucher noted that the patient did not have an appointment until April 28, 2006, and she refused to refill the patient's prescription. 

            On April 28, clinical-nurse manager Arlen Havrilla became aware that Bucher refused the refill request.  The patient had been without medication for 18 days and, as a result, had suffered a decline in pulmonary functioning, increased breathlessness, and broncho spasms.  Havrilla found the patient's chart in its usual location and noted that there had not been any activity noted on the chart for several months.

            On May 1, Havrilla and human-resource manager Deb Hilden met with Bucher regarding her refusal to refill the prescription.  Bucher maintained that she did not know that the patient was out of medication.  Havrilla responded that Bucher should have looked at the patient's chart to make that determination.  Bucher later claimed that she looked for, but was unable to locate, the patient's chart when she refused the refill request.

            Havrilla and Hilden again met with Bucher on May 4.  Bucher acknowledged that, at the time she refused the refill, she was aware that the patient was instructed to take the medicine on a prescribed schedule rather than "as needed," which indicates a higher level of necessity.  She also admitted that she should have called the patient and provided a 10-day supply of medication if she could not locate the chart.  Bucher was subsequently discharged from employment at MLC. 

Bucher applied for unemployment benefits.  A Department of Employment and Economic Development adjudicator determined that Bucher was discharged for employment misconduct and, therefore, disqualified from receiving unemployment benefits.  Bucher appealed this determination, and a telephonic hearing was held before an unemployment law judge (ULJ). 

In her findings of fact and decision, the ULJ also determined that Bucher engaged in employment misconduct and is disqualified from receiving unemployment benefits.  After reconsideration, the ULJ affirmed her earlier decision.  This certiorari appeal followed.

D E C I S I O N

We review the decision of a ULJ to determine whether the substantial rights of the relator 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 committed employment misconduct is a mixed question of fact and law.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  Whether the employee committed a particular act is a question of fact.  Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  We view the ULJ's factual findings in the light most favorable to the decision.  Skarhus v. Davanni's Inc., 721 N.W.2d 340, 344 (Minn. App. 2006).  In doing so, we will not disturb the ULJ's factual findings when the evidence substantially sustains them.  Minn. Stat. § 268.105, subd. 7(d).  Because credibility determinations are the exclusive province of the ULJ, we accord them deference on appeal.  Munro Holding, LLC v. Cook, 695 N.W.2d 379, 384 (Minn. App. 2005).  But whether the act committed by the employee constitutes employment misconduct is a question of law, which we review de novo.  Scheunemann, 562 N.W.2d at 34.  

Employment misconduct is "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) (2004).  An employer has a right to expect its employees to abide by reasonable instructions and directions.  Vargas v. Nw. Area Found., 673 N.W.2d 200, 206 (Minn. App. 2004), review denied (Minn. Mar. 30, 2004).  A knowing violation of an employer's directives, policies, or procedures constitutes employment misconduct because it demonstrates a substantial lack of concern for the employer's interests.  Schmidgall, 644 N.W.2d at 804.  But "good faith errors in judgment if judgment was required . . . are not employment misconduct."  Minn. Stat. § 268.095, subd. 6(a).  An employee who is discharged for employment misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4(1) (Supp. 2005).    

            The ULJ determined that Bucher was discharged for employment misconduct because Bucher's refusal of the patient's prescription refill was a "violation of the standards of behavior that MLC had a right to reasonably expect of her."  This determination is supported by the record.

Bucher argues that she was unaware that the patient was completely out of medicine and, therefore, did not commit employment misconduct.  The April 6 facsimile indicates that the patient was scheduled for a prescription refill on April 10.  It follows that, without a refill, the patient would be without medication as of April 10 until another prescription was written at her next scheduled appointment, April 28, 2006.  Indeed, this was precisely the circumstance that the pharmacy sought to avoid by requesting a refill from MLC.  Bucher contends that she "assumed [the patient] had her stockpile of medicine she was using."  But Havrilla testified that, although some patients may refill their prescriptions before they are empty, this patient "could very likely [have been] out of medicine on April 10."  Moreover, MLC has a written policy mandating a one-month refill of asthma medication if it is indicated in the patient's plan of care.  Copies of the policy manual are available in the triage department where Bucher worked, and Havrilla testified that he orally instructed the nurses on this policy during the initial training period, staff meetings, and coaching and counseling sessions. 

Havrilla also testified that, because the patient's medication was prescribed for use four times daily rather than "as needed," a reasonable nurse would understand the seriousness of the patient's condition.  And "standard nursing knowledge and practice" authorizes a one-month refill.  Furthermore, Bucher was instructed to call the physician if she had questions regarding her course of action and to make a full assessment of the patient's condition before deciding whether to refuse a prescription-refill request.  Thus, the record supports the ULJ's finding that Bucher knowingly violated these directives.  As such, her decision to refuse the prescription-refill request was a violation of the standards of behavior that her employer had a right to reasonably expect of her. 

Bucher also argues that she could not find the patient's chart, which contained the patient's plan of care.  But Harvilla testified that he found the chart without difficulty because it was properly located among the patient medical records.  Notes had not been made in the chart during the period between December and April, indicating to Havrilla that the chart had not been removed for an appointment or otherwise.  The ULJ found Harvilla's testimony more credible than Bucher's "because it was more believable and Bucher's testimony was more self-serving."  See Minn. Stat. § 268.105, subd. 1(4) (Supp. 2005) (providing that when credibility may have significant effect on outcome, ULJ must provide reason for crediting or discrediting testimony).  On review, we defer to the ULJ's ability to weigh the evidence and make this credibility determination.  Nichols v. Reliant Eng'g & Mfg., Inc., 720 N.W.2d 590, 594 (Minn. App. 2006). [1] 

            Bucher's argument that her actions fall within the exception to employment misconduct for good faith also is unavailing.  Although good-faith errors in judgment do not constitute employment misconduct, Minn. Stat. § 268.095, subd. 6(a), the exercise of judgment was not required here.  MLC's policy mandated a one-month refill of asthma medication under the circumstances presented, and if Bucher had questions regarding the request, she was instructed to call the physician.  

            Bucher also assigns error to the ULJ's failure to honor Bucher's request to have her case reconsidered by a different ULJ.  Generally, the applicable statutory scheme, Minn. Stat. § 268.105, subd. 2 (Supp. 2005), does not authorize reconsideration by a different ULJ.  Prior to August 2005, an applicant or employer could obtain de novo review of a ULJ's decision by filing an appeal with a senior unemployment review judge.  Minn. Stat. § 268.105, subd. 2 (2004).  But the statute governing review of Bucher's case now provides that an applicant, an employer, or the commissioner may request reconsideration from the ULJ who made the initial decision.  Minn. Stat. § 268.105, subd. 2(a) (Supp. 2005); see 2005 Minn. Laws, ch. 112, art. 2, § 34, at 704-10 (revising appeal provisions).  Unless certain exceptions apply, which have not been met here, "[a] request for reconsideration shall be decided by the ULJ who issued the findings of fact and decision under subdivision 1."  Minn. Stat. § 268.105, subd. 2(e) (Supp. 2005).  Therefore, the ULJ properly retained the case for review of the decision on reconsideration.

             In sum, substantial evidence exists in the record to sustain the ULJ's factual findings, and the ULJ correctly applied the law.  Because Bucher was discharged for employment misconduct, she is disqualified from receiving unemployment benefits.

            Affirmed.

 

 

[1] Bucher also asserts that she was terminated because MLC "wanted to get a whole new department" and that MLC is "trying to get away with [not] paying a higher unemployment tax."  But these assertions are not supported by argument or a citation to the record and, therefore, are waived.  See State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997) (holding that assignment of error based on mere assertion and not supported by argument or authority is waived unless prejudicial error is obvious on mere inspection).