                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2014).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A14-1302

                         Jayne M. Eiden-Kellam, petitioner,
                                     Relator,

                                         vs.

                       Mayo Clinic Health System – Fairmont,
                                   Respondent,

               Department of Employment and Economic Development,
                                   Respondent.

                                Filed March 9, 2015
                                      Affirmed
                                    Kirk, Judge

               Department of Employment and Economic Development
                               File No. 32374349-3


Jayne M. Eiden-Kellam, Welcome, Minnesota (pro se relator)

Mayo Clinic Health System – Fairmont, Rochester, Minnesota (respondent)

Lee B. Nelson, Department of Employment and Economic Development, St. Paul,
Minnesota (for respondent department)


      Considered and decided by Ross, Presiding Judge; Kirk, Judge; and Reilly, Judge.
                         UNPUBLISHED OPINION

KIRK, Judge

      Relator appeals the decision of the unemployment-law judge (ULJ) that she was

ineligible for unemployment benefits because she was discharged for employment

misconduct. We affirm.

                                        FACTS

      Relator Jayne M. Eiden-Kellam worked full-time at respondent Mayo Clinic

Health System – Fairmont as a customer-service representative from January 6, 1998,

until she was discharged on February 27, 2014. Eiden-Kellam applied for unemployment

benefits following her discharge and a Minnesota Department of Employment and

Economic Development (DEED) administrative clerk determined that Eiden-Kellam was

ineligible for unemployment benefits. Eiden-Kellam appealed the determination and a

ULJ held an evidentiary hearing.

      At the hearing, a Mayo Clinic human-resources representative testified that

employees of the Mayo Clinic’s privacy and compliance offices discovered during a

compliance audit that Eiden-Kellam had accessed a patient’s electronic file and viewed

the patient’s protected health information on one occasion in January 2014. The human-

resources representative testified that she met with Eiden-Kellam to find out whether she

had actually accessed the patient’s confidential information, and Eiden-Kellam admitted

that she had.   Eiden-Kellam explained that she recognized the patient’s name and

accessed the patient’s record to see where the patient lived.     The human-resources

representative testified that Eiden-Kellam had received training about patient


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confidentiality and HIPAA confidentiality standards at the time she was hired as well as

ongoing annual training.      The Mayo Clinic discharged Eiden-Kellam due to the

confidentiality breach.

       Eiden-Kellam testified that she accessed the patient’s electronic file because she

recognized the patient’s name and wanted to see the current town where the patient lived.

She testified that she was “not real sure” why she accessed the information, but that she

never intended to share the information with anyone. She testified that it was a mistake

and she only viewed the patient’s electronic record for three to six seconds.

       The ULJ issued an order determining that Eiden-Kellam was ineligible for

unemployment benefits because the Mayo Clinic discharged her for employment

misconduct. Eiden-Kellam requested reconsideration and the ULJ affirmed his decision.

This certiorari appeal follows.

                                     DECISION

       When reviewing a ULJ’s eligibility decision, this court may affirm, remand for

further proceedings, or reverse or modify the decision if the substantial rights of the

relator have been prejudiced because the findings, inferences, conclusion, or decision are

affected by an error of law or are unsupported by substantial evidence. Minn. Stat.

§ 268.105, subd. 7(d) (2014). We view the ULJ’s factual findings in the light most

favorable to the decision and defer to the ULJ’s credibility determinations. Peterson v.

Nw. Airlines Inc., 753 N.W.2d 771, 774 (Minn. App. 2008), review denied (Minn. Oct. 1,

2008). “[T]his court will not disturb the ULJ’s factual findings when the evidence

substantially sustains them.” Id.


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       Eiden-Kellam challenges the ULJ’s decision that she is ineligible for

unemployment benefits because she was discharged for employment misconduct. An

employee who was discharged is eligible for unemployment benefits unless the discharge

was for employment misconduct.             Minn. Stat. § 268.095, subd. 4(1) (2014).

“Employment misconduct” is “any intentional, negligent, or indifferent conduct, on the

job or off the job that displays clearly: (1) a serious violation of the standards of behavior

the employer has the right to reasonably expect of the employee; or (2) a substantial lack

of concern for the employment.”         Id., subd. 6(a) (2014).     “Whether an employee

committed employment misconduct is a mixed question of fact and law.” Peterson, 753

N.W.2d at 774. Whether the employee committed the act is a fact question. Skarhus v.

Davanni’s Inc., 721 N.W.2d 340, 344 (Minn. App. 2006). But whether the employee’s

act constitutes employment misconduct is a question of law, which we review de novo.

Stagg v. Vintage Place Inc., 796 N.W.2d 312, 315 (Minn. 2011).

       In general, an employee’s refusal to abide by an employer’s reasonable policies

and requests constitutes employment misconduct. Schmidgall v. FilmTec Corp., 644

N.W.2d 801, 804 (Minn. 2002). In the health-care context, this court has recognized that

maintaining the confidentiality of patient records in a hospital is very important. Grp.

Health Plan, Inc. v. Lopez, 341 N.W.2d 294, 297 (Minn. App. 1983). In Grp. Health

Plan, this court concluded that because “[a] hospital has the right to expect its employees

to keep patient records confidential . . . a violation of patient records confidentiality is

misconduct.” Id.




                                              4
      Eiden-Kellam admits that she received training about the Mayo Clinic’s

confidentiality policy and the requirements of HIPAA and that she violated those policies

when she viewed a patient’s protected health information. But she contends that the

Mayo Clinic routinely violates HIPAA.       In support of her assertion, she submitted

photographs of the Mayo Clinic’s alleged HIPAA violations to this court. But the focus

of an employment misconduct “inquiry is the employee’s conduct, not that of the

employer.” Stagg, 796 N.W.2d at 316. And whether other employees have violated or

continue to violate HIPAA is not relevant to our consideration of whether Eiden-Kellam

committed employment misconduct. See Sivertson v. Sims Sec., Inc., 390 N.W.2d 868,

871 (Minn. App. 1986) (“Whether or not other employees violated those same rules and

were disciplined or discharged is not relevant here.”), review denied (Minn. Aug. 20,

1986); Dean v. Allied Aviation Fueling Co., 381 N.W.2d 80, 83 (Minn. App. 1986)

(“Violation of an employer’s rules by other employees is not a valid defense to a claim of

misconduct.”).

      Eiden-Kellam also argues that her discharge from her employment after only one

HIPAA violation was a pretext because the Mayo Clinic was trying to downsize her

department. She contends that the Mayo Clinic should have given her a written warning

instead of discharging her. If an employee disputes the reason for her discharge, the ULJ

must allow her to present evidence of the competing reasons for the discharge and then

must make factual findings on the cause of the discharge. Scheunemann v. Radisson S.

Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).




                                            5
       Here, there is nothing in the record to support Eiden-Kellam’s claim that she was

discharged because the Mayo Clinic was downsizing her department. The record further

shows that Eiden-Kellam never presented this argument to the ULJ or submitted any

evidence to the ULJ in support of the argument. See Eisenschenk v. Eisenschenk, 668

N.W.2d 235, 243 (Minn. App. 2003), review denied (Minn. Nov. 25, 2003) (“[A] party

cannot complain about a district court’s failure to rule in [the party’s] favor when one of

the reasons it did not do so is because that party failed to provide the district court with

the evidence that would allow the district court to fully address the question.”). And

although the evidence in the record shows that Eiden-Kellam violated the Mayo Clinic’s

confidentiality policy on only one occasion, it is well-established that “[a] single incident

can constitute misconduct when an employee deliberately chooses a course of conduct

that is adverse to the employer.” Schmidgall, 644 N.W.2d at 806. Finally, there is no

equity in the award of unemployment benefits, and we do not consider whether an

employee should have been discharged because our sole consideration is whether the

employee is entitled to unemployment benefits. See Minn. Stat. § 268.069, subd. 3

(2014); Auger v. Gillete Co., 303 N.W.2d 255, 257 (Minn. 1981).

       Therefore, we conclude that the ULJ did not err by determining that Eiden-Kellam

is ineligible for unemployment benefits because she committed employment misconduct.

       Affirmed.




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