                        This opinion will be unpublished and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
                                   A16-0009

                                    Sheila Fangel,
                                      Relator,

                                          vs.

                                 Health Partners, Inc.,
                                     Respondent,

               Department of Employment and Economic Development,
                                   Respondent.

                                Filed August 15, 2016
                                      Affirmed
                                 Kalitowski, Judge

                Department of Employment and Economic Development
                                File No. 33902009-3

Sheila Fangel, Mendota Heights, Minnesota (pro se relator)

Health Partners, Inc., Bloomington, Minnesota (respondent)

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

      Considered and decided by Bjorkman, Presiding Judge; Kirk, Judge; and

Kalitowski, Judge.




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                         UNPUBLISHED OPINION

KALITOWSKI, Judge

       Pro se relator Sheila Fangel challenges an unemployment-law judge’s (ULJ)

decision that she is ineligible for unemployment benefits because she was discharged for

employment misconduct. We affirm.

                                     DECISION

       Fangel was employed by respondent Health Partners Inc. as a licensed practical

nurse for over 25 years. On September 1, 2015, Health Partners terminated Fangel’s

employment based in part on her failure to document patient encounters. Fangel sought

unemployment benefits, and respondent Minnesota Department of Employment and

Economic Development (DEED) determined that Fangel is ineligible for unemployment

benefits because she was discharged for employment misconduct. Fangel appealed, and a

ULJ issued a decision that Fangel’s failure to document patient visits constituted

employment misconduct and that she is therefore ineligible to receive unemployment

benefits. The ULJ affirmed the decision after Fangel requested reconsideration.

       When reviewing a ULJ’s decision, we may affirm or remand for further

proceedings, or we may reverse or modify if the relator’s substantial rights were 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) (Supp. 2015).

An employee who is discharged because of employment misconduct is ineligible to receive

unemployment benefits. Minn. Stat. § 268.095, subd. 4(1) (2014). “Employment

misconduct” includes “any intentional, negligent, or indifferent conduct, on the job or off


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the job that displays clearly . . . a serious violation of the standards of behavior the

employer has the right to reasonably expect of the employee.” Id., subd. 6(a) (2014).

       “Whether an employee engaged in conduct that disqualifies the employee from

unemployment benefits is a mixed question of fact and law.” Stagg v. Vintage Place Inc.,

796 N.W.2d 312, 315 (Minn. 2011) (quotation omitted). “[W]hether the employee

committed a particular act is an issue of fact.” Icenhower v. Total Auto., Inc., 845 N.W.2d

849, 855 (Minn. App. 2014) (quotation omitted), review denied (Minn. July 15, 2014). We

“review the ULJ’s factual findings in the light most favorable to the decision” and will “not

disturb those findings as long as there is evidence in the record that reasonably tends to

sustain them.” Stagg, 796 N.W.2d at 315 (quotation omitted). “Determining whether a

particular act constitutes disqualifying misconduct is a question of law that [appellate

courts] review de novo.” Id.

       On appeal, Fangel does not argue that the ULJ’s factual findings are unsupported

by the evidence. The ULJ found that, in July 2013, Fangel failed to document an injection

that she administered to a patient and later failed to administer an injection to the same

patient as ordered by the provider. The ULJ found that, in August 2013, Fangel was placed

on a three-day unpaid suspension and received a written warning for her failure to

document and complete nursing responsibilities. In addition, the ULJ found that, in June

2015, Fangel received a written warning and was placed on a 12-day unpaid suspension

for excessive absences and alleged falsification of her timecard. The ULJ further found

that, in July 2015, Fangel received a verbal coaching from her supervisor, Kathryn Carlson,

after Fangel failed to document a non-stress test that she administered as part of a patient’s


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“well baby visit.” And the ULJ found that, in August 2015, Fangel again failed to document

a non-stress test. The ULJ found that Fangel was discharged for, among other things, her

failure to properly document patient visits and treatment.

       At the evidentiary hearing before the ULJ, Fangel admitted that she failed to

document an injection she administered to a patient in July 2013 and received a three-day

unpaid suspension as a consequence. Fangel also admitted that she had received a 12-day

unpaid suspension in June 2015. And Fangel admitted that she failed to document a non-

stress test in July 2015 and received a verbal coaching. Carlson testified that Fangel failed

to document a non-stress test in August 2015 and that, when she asked Fangel if Fangel

documented the test, Fangel responded, “I don’t see where I did.” Fangel testified that

“[m]aybe” it was possible that she failed to document the non-stress test in August 2015.

In addition to the testimony, the record includes Health Partners’ written warnings to

Fangel, which indicated that additional performance-related issues might result in

discipline up to and including discharge. And Health Partners’ termination letter to Fangel

stated that she was being discharged in part based on her failure to document patient

encounters, despite her prior warnings and suspensions. We conclude that substantial

evidence in the record supports the ULJ’s findings.

       Fangel appears to argue that the ULJ erred by determining that her actions

constituted employment misconduct. As to her 12-day unpaid suspension in June 2015 for

excessive absences and timecard falsification, Fangel contends that her absences were

approved and that she was never approached by Health Partners to correct the error in her

timecard. And as to a number of personal phone calls that Health Partners alleged Fangel


                                             4
made at the nurse station after being coached not to do so, Fangel contends that all of her

calls were made during breaks. But the ULJ did not find that Fangel’s absences were

excessive, that Fangel falsified her timecard, or that Fangel made or received phone calls

at the nurse station. Nor did the ULJ determine that Fangel’s absences, false timecard, or

phone calls constituted employment misconduct. Rather, the ULJ concluded that Fangel’s

failure to document and perform injections in July 2013 and that Fangel’s failures to

document non-stress tests in July and August 2015 constituted employment misconduct.

       Regarding her failure to document the injection in July 2013, Fangel argues that

“[n]o harm was done to the patient” and that she has “documentation of other nurses not

documenting [i]njections.” As to her failure to document the non-stress tests, Fangel argues

that many nurses and providers forget to administer and document testing. But “[h]arm is

not necessary for a determination of misconduct.” Sivertson v. Sims Sec., Inc., 390 N.W.2d

868, 871 (Minn. App. 1986), review denied (Minn. Aug. 20, 1986). And we have stated

that “[v]iolation of an employer’s rules by other employees is not a valid defense to a claim

of misconduct.” Dean v. Allied Aviation Fueling Co., 381 N.W.2d 80, 83 (Minn. App.

1986); see also Sivertson, 390 N.W.2d at 871 (stating that “[w]hether or not other

employees violated [employer’s] rules and were disciplined or discharged is not relevant

here” and that “[t]he sole question before this court is whether [relator]’s violation of

[employer’s] rules constituted misconduct”).

       “Employment misconduct” includes “any intentional, negligent, or indifferent

conduct, on or off the job that displays clearly . . . a serious violation of the standards of

behavior the employer has the right to reasonably expect of the employee.” Minn. Stat.


                                              5
§ 268.095, subd. 6(a). “Because the nature of an employer’s interest will vary depending

upon the job, what constitutes disregard of that interest, and therefore misconduct, will also

vary.” Schmidgall v. Filmtec Corp., 644 N.W.2d 801, 806 (Minn. 2002) (quotation

omitted). “As a general rule, refusing to abide by an employer’s reasonable policies and

requests amounts to disqualifying misconduct.” Id. at 804. This is especially true in the

medical field, where “strict compliance with protocol and militarylike discipline is

required.” Ress v. Abbott Nw. Hosp., Inc., 448 N.W.2d 519, 525 (Minn. 1989).

       Carlson testified that documentation of treatment is necessary to inform hospital

employees why the patient came to the hospital and that a test was performed. She also

testified that failure to document treatment is “not common.” And Carlson testified: “[I]ts

basic nursing skills that I would think would be in place, that you know that you have to

document in a timely fashion so that other people have access to that information. Not only

for the mom but also for the baby.” Health Partners had a reasonable interest in requiring

documentation of patient visits and testing. Cf. id. (stating that “[hospital] had a right to

expect [relator], an experienced nurse, to operate in emergency situations within the scope

of his nursing license according to established procedures prepared to handle those

situations” and that “[b]reach of these necessary standards could expose the patient to

serious harm and expose [hospital] to malpractice claims: both legitimate interests of the

employer”).

       “[A]n employee’s decision to violate knowingly a reasonable policy of the employer

is misconduct. This is particularly true when there are multiple violations of the same rule

involving warnings or progressive discipline.” Schmidgall, 644 N.W.2d at 806–07 (citation


                                              6
omitted). Here, Fangel’s actions included multiple failures to document patient visits and

treatment, and she received written and verbal warnings and a suspension for her failures

to document. Because Fangel knowingly violated Health Partners’ reasonable policy

requiring documentation of patient visits and treatment, we conclude that the ULJ did not

err by determining that Fangel is ineligible to receive unemployment benefits.

      Affirmed.




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