Opinion
No. A06-939.
Filed: May 8, 2007.
Appeal from the Department of Employment and Economic Development, File No. 846-06.
Steven K. Marden, St. Paul, MN (for relator).
Ryan A. Olson, Karen G. Schanfield, Sara B. McGrane, Felhaber, Larson, Fenlon Vogt, P.A., Minneapolis, MN (for respondent University of Minnesota Physicians).
Linda A. Holmes, Lee B. Nelson, Department of Employment and Economic Development, MN (for respondent Department of Employment and Economic Development).
Considered and decided by Peterson, Presiding Judge; Lansing, Judge; and Worke, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2006).
UNPUBLISHED OPINION
Relator challenges the decision by an unemployment law judge (ULJ) that she is disqualified from receiving unemployment benefits because she was discharged for misconduct. Relator argues that (1) she was terminated because her approach to patient care differed from that of her coworkers, which does not constitute misconduct; and (2) the ULJ erred in failing to explain why he credited the employer's witnesses over relator's witnesses. We affirm.
FACTS
Respondent University of Minnesota Physicians Corp. (UMP) employed relator Clare A. Welter as a certified nurse midwife from October 1, 2004, through November 21, 2005. Welter's immediate supervisor was Ann Forster-Page, a certified nurse midwife and the director of midwifery service.
UMP follows a standard protocol for repairing vaginal lacerations that occur when a baby is delivered. The protocol requires that second-degree lacerations be repaired with sutures. Every midwife is provided a copy of the protocol, and copies are available at UMP's clinic sites and at the hospital.
Forster-Page learned of three incidents when Welter failed to repair second-degree lacerations. Welter testified that, based on informed consent, the patients decided not to have the lacerations repaired.
On November 17, 2005, Forster-Page met with Welter and explained to her that she needed to follow UMP's protocol. Forster-Page had drafted a letter highlighting the areas of concern and reviewing UMP's established protocol. Forster-Page testified that she requested that Welter sign the letter and agree to follow UMP's protocol, but Welter refused, stating that she did not believe it was necessary to repair second-degree lacerations.
On November 17 and 18, 2005, Forster-Page and other supervisory employees determined that it was inappropriate to have Welter continue practicing with UMP because she was putting patients at risk and decided to proceed with termination. Due to Welter's admittedly incorrect entries on a patient's record and her unwillingness to follow UMP's protocol for repairing second-degree lacerations, there was a concern that she might falsify records in the future to avoid complying with the protocol. Forster-Page and other supervisory employees met with Welter on November 21, 2005. Forster-Page testified that at the meeting, Welter refused to agree to consistently repair second-degree lacerations, and the decision was then made to terminate Welter's employment.
Welter filed a claim for unemployment benefits with respondent Department of Employment and Economic Development. A department adjudicator determined that Welter was discharged for employment misconduct and, therefore, was disqualified from receiving unemployment benefits. Welter appealed to a ULJ. Following an evidentiary hearing, the ULJ determined that Welter was discharged for misconduct and that she was disqualified from receiving unemployment benefits. Welter filed a request for reconsideration. The ULJ affirmed the initial decision. This certiorari appeal followed.
DECISION
This court may affirm the ULJ's decision, remand it for further proceedings, or reverse or modify it if the relator's substantial rights "may have been prejudiced because the findings, inferences, conclusion, or decision are . . . made upon unlawful procedure; affected by other error of law; [or] unsupported by substantial evidence in view of the entire record as submitted[.]" Minn. Stat. § 268.105, subd. 7(d)(3)-(5) (Supp. 2005).
1. Welter argues that the ULJ erred in determining that she was discharged for misconduct. "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. Ywswf v. Teleplan, 726 N.W.2d 525, 529 (Minn.App. 2007). Whether a particular act constitutes employment misconduct is a question of law, which we review de novo. Schmidgall, 644 N.W.2d at 804; Scheunemann, 562 N.W.2d at 34.
Welter argues that the ULJ erred in finding that before November 17, 2005, Welter knew UMP's protocol for repairing lacerations but did not always follow it. Welter cites the absence of evidence that she was provided with a copy of the protocol or that UMP had a regular practice of advising new hires as to the existence of the protocol. Forster-Page's testimony that "[e]very midwife has a copy of [the protocol]" supports an inference that Welter was provided with a copy of the protocol before November 17. But even if Welter was not aware of the protocol before November 17, undisputed evidence shows that Forster-Page advised Welter of the protocol on November 17. Welter was then terminated after twice refusing, on November 17 and November 21, to agree to comply with the protocol.
Welter argues that substantial evidence does not support the findings that she was discharged because on November 17 and 21, she refused to sign the letter agreeing to comply with UMP's protocol. Forster-Page's testimony is substantial evidence supporting the finding that Welter refused to sign the letter on November 17. See Minn. Ctr. for Envtl. Advocacy v. Minn. Pollution Control Agency, 644 N.W.2d 457, 466 (Minn. 2002) (defining substantial evidence). Forster-Page did not specifically testify that Welter refused to sign the letter on November 21. But the ULJ's finding that Welter again refused to sign the letter on November 21 is substantively equivalent to a finding that Welter again refused to comply with UMP's protocol, and Forster-Page testified that at the November 21 meeting, Welter refused to consistently repair second-degree lacerations.
Welter argues that even if the ULJ's findings are supported by substantial evidence, her acts did not constitute misconduct. "[E]mployment 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).
"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. Undisputed evidence shows that the protocol followed by UMP was reasonable. Forster-Page testified that the protocol was consistent with the nationally accepted guidelines of the American College of Obstetrics and Gynecology and other medical standards and that UMP annually reviewed its protocol with physicians. Welter concedes that the protocol followed by UMP is reasonable.
Welter knew that UMP's policy was to suture second-degree lacerations, but she disagreed with the policy. At most, the evidence shows that there is a debate within the medical community about the appropriate way to treat second-degree lacerations. We conclude that under these circumstances, the general rule requiring an employee to comply with an employer's reasonable policies applies, and Welter's refusal to do so constituted employment misconduct. See Ress, 448 N.W.2d at 525 (concluding that nurse, whose conduct included failing to act consistently with training and past warnings and disobeying physician's order without good cause, committed employment misconduct; and noting that medical field is an area where strict compliance with protocol is required).
2. "When 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." Minn. Stat. § 268.105, subd. 1(c) (Supp. 2005).
Welter argues that the ULJ failed to comply with this statutory requirement. Welter argues that findings were required on why the ULJ credited Forster-Page's testimony that Welter refused to sign the letter agreeing to comply with UMP's protocol in November 2005. The significant act in this case was Welter's refusal to agree to comply with UMP's protocol, not the refusal to sign the letter, and it is undisputed that after being made aware of the protocol on November 17, she twice refused to agree to comply with it. Because credibility did not have a significant effect on the outcome of this case, specific findings were not required.