                       This opinion will be unpublished and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
                                  A14-0652

                                Colleen Campbell,
                                     Relator,

                                        vs.

                     Planned Parenthood of Minnesota (Corp.),
                                   Respondent,

                          Department of Employment and
                             Economic Development,
                                  Respondent.

                              Filed February 2, 2015
                                     Affirmed
                                  Hudson, Judge

                          Department of Employment and
                             Economic Development
                               File No. 31691598-3

Thomas H. Boyd, Aalok K. Sharma, Winthrop & Weinstine, P.A., Minneapolis,
Minnesota (for relator)

Susan A. Casey, Planned Parenthood Minnesota North Dakota, South Dakota, St. Paul,
Minnesota (for respondent Planned Parenthood)

Lee B. Nelson, Munazza Humayun, Department of Employment and Economic
Development, St. Paul, Minnesota (for respondent department)
          Considered and decided by Hudson, Presiding Judge; Stauber, Judge; and Minge,

Judge.

                          UNPUBLISHED OPINION

HUDSON, Judge

          In this certiorari appeal, relator argues that the unemployment-law judge (ULJ)

erred by determining that relator was discharged for employment misconduct, making her

ineligible for unemployment benefits, maintaining that her single, inadvertent disclosure

of patient information was not a serious violation of her employer’s reasonable

expectations and that the ULJ’s initial finding that her actions were “innocent and

inadvertent” established as a matter of law that she did not commit misconduct. We

affirm.

                                          FACTS

          Relator Colleen Campbell worked as a call-center agent for respondent Planned

Parenthood of Minnesota, North Dakota, South Dakota from early 2009 until October

2013, when she was discharged.         She applied for unemployment benefits and was

determined ineligible based on employment misconduct.

          At an appeal hearing before a ULJ, Planned Parenthood’s human resources

manager testified that Campbell was terminated for a reportable HIPAA violation and

after previous disciplinary actions, although the HIPAA violation was serious enough to

warrant termination by itself. A call center supervisor testified that he received an e-mail


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

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from another employee, E.S., stating that Campbell had sent her a chat message stating

that Campbell had just scheduled E.S.’s cousin as a patient, with a follow-up message

stating the cousin’s name. He testified that Campbell would have been aware that her

action violated HIPAA confidentiality standards.         Planned Parenthood’s policy also

requires that employees take care to avoid mentioning identifying patient information,

particularly a patient name, when a possibility exists of being overheard by a person not

involved in the patient’s care. Campbell had previously received a final warning about

answering her personal cell phone when she was at her desk, following an earlier warning

about her conduct in the call center expressing frustration at a caller.

       Campbell testified that on the day she sent the chat message, the center was short-

staffed and she was multi-tasking. She testified that the patient asked whether she was

sitting next to E.S., and she said no, but that was all that she could discuss. The patient

then said he was E.S.’s cousin, and she scheduled his appointment. Campbell testified

that she believed that the patient wanted her to say hello to E.S., even though he did not

say that, so she quickly messaged E.S. that her cousin just called, without mentioning the

word “appointment.” She said that it was possible she accidentally cut and pasted the

patient’s name and sent that information to E.S.            She testified that she had no

understanding that this exchange violated HIPAA and that, even though she went through

training, she “wonder[ed] why it would be a violation if he already knew she worked

there” and she revealed no information about the patient’s appointment or diagnosis.

       Campbell testified that she got the impression that E.S. told the patient to call and

make an appointment and the patient was expecting to talk to E.S., but he got Campbell


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instead.     She testified that she assumed that the patient expected her to share the

information that he had called, but agreed that it was possible that he had asked if E.S.

worked there because he did not want E.S. to know he had called. She agreed that there

was no business reason to send the message to E.S. or let E.S. know that his cousin had

called.

          Campbell testified that she was not given specific direction about whether the

name of a person who had called for an appointment could be shared internally. But

another supervisor testified that giving a patient’s name would be considered a HIPAA

violation, and Planned Parenthood had a policy based on the HIPAA law.

          In an initial decision, the ULJ determined that Campbell was not discharged for

employment misconduct, stating that “[t]he record supports a finding that [her] disclosure

of this information was innocent and inadvertent.”        Planned Parenthood requested

reconsideration, and the ULJ issued a decision determining that his previous decision was

“not factually and legally correct.” The ULJ found that an important fact not given due

consideration was Campbell’s status on a final written warning; that the evidence

supported a finding that her contact with the caller was to schedule a medical

appointment, and that no business reason existed for Campbell to communicate with E.S.;

and that Campbell testified that she was well aware of HIPAA policy. The ULJ therefore

determined that Campbell was ineligible for unemployment benefits based on

employment misconduct. This certiorari appeal follows.




                                             4
                                      DECISION

       Campbell challenges the ULJ’s conclusion that she engaged in employment

misconduct and is ineligible for unemployment benefits.           This court may remand,

reverse, or modify the decision of a ULJ if the substantial rights of the relator may have

been prejudiced because the findings, conclusion, or decision are in violation of

constitutional provisions or unsupported by substantial evidence. Minn. Stat. § 268.105,

subd. 7(d)(1), (5) (2014). Substantial evidence means “(1) such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion; (2) more than a

scintilla of evidence; (3) more than some evidence; (4) more than any evidence; or (5) the

evidence considered in its entirety.” Minn. Ctr. for Envtl. Advocacy v. Minn. Pollution

Control Agency, 644 N.W.2d 457, 466 (Minn. 2002).

       An employee who is discharged because of employment misconduct is ineligible

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

misconduct is “any intentional, negligent, or indifferent conduct . . . 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). Employment misconduct does not, however, include

“conduct that was a consequence of the applicant’s inefficiency or inadvertence,” simple

unsatisfactory conduct, poor performance because of inability or incapacity, or good-faith

errors in judgment. Minn. Stat. § 268.095, subd. 6(b)(2), (3), (5), (6) (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,


                                              5
Inc., 796 N.W.2d 312, 315 (Minn. 2011) (quotation omitted). “Whether the employee

committed a particular act is a fact question.” Dourney v. CMAK Corp., 796 N.W.2d

537, 539 (Minn. App. 2011). But whether a particular act amounts to disqualifying

misconduct is a question of law, which this court reviews de novo. Stagg, 796 N.W.2d at

315. We review the ULJ’s factual findings “in the light most favorable to the decision”

and defer to the ULJ’s credibility determinations.     Skarhus v. Davanni’s Inc., 721

N.W.2d 340, 344 (Minn. App. 2006).

      Campbell argues that her conduct of messaging E.S. about her cousin’s call to

Planned Parenthood was only inadvertent and did not rise to the level of employment

misconduct. Inadvertence has been defined as “an oversight or a slip,” and inadvertent

conduct is “not duly attentive or marked by unintentional lack of care.” Dourney, 796

N.W.2d at 540 (quotation omitted). In Dourney, this court held that an employee’s one-

time failure to request identification from a customer before serving an alcoholic

beverage was inadvertent conduct, which did not preclude her from receiving

unemployment benefits. Id. But negligence, on the other hand, “is the failure to use the

care that a reasonable person would use in the same or similar circumstances.” Id. Here,

a Planned Parenthood supervisor testified that Campbell initiated two chat messages to

E.S. regarding her cousin’s call. We cannot agree that her conduct in doing so was

inadvertent, and we agree with the ULJ that her actions amounted to employment

misconduct.

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

requests amounts to disqualifying misconduct.”     Schmidgall v. FilmTec Corp., 644


                                           6
N.W.2d 801, 804 (Minn. 2002). And we have previously held that a violation of patient

records confidentiality constitutes employment misconduct. Group Health Plan, Inc. v.

Lopez, 341 N.W.2d 294, 297 (Minn. App. 1983). Campbell testified that she was aware

of HIPAA policy and had received training in Planned Parenthood’s confidentiality

policies, but she points out that she did not disclose actual health and medical information

and did not initiate the messages to further her own interest. Nonetheless, her action

violated an express no-tolerance policy of her employer relating to patient confidentiality.

See Schmidgall, 644 N.W.2d at 804.

       Campbell also argues that she did not think that she was disclosing confidential

information because the caller already knew that E.S. worked at Planned Parenthood.

But this argument ignores the policy’s purpose to protect the confidentiality of patient

information. And as the ULJ correctly found, a reasonable inference may be drawn from

the record that the prospective patient asked specifically about his cousin working at

Planned Parenthood because he did not wish her to learn that he had scheduled an

appointment there.

       Campbell further argues that because her conduct involved a single act, that factor

should weigh against a determination that she committed employment misconduct. See

Minn. Stat. § 268.095, subd. 6(d) (stating that if the conduct involved a single incident,

the ULJ must consider that factor in weighing whether the conduct constitutes

employment misconduct). But that argument ignores the fact that Campbell had received

a final warning before this incident, based on her previous conduct in the call center.




                                             7
       Campbell finally asserts that because the ULJ on reconsideration did not expressly

vacate his finding that her actions were “innocent and inadvertent,” that finding still

stands. On reconsideration, the ULJ may issue “a decision modifying the findings of

fact, reasons for decision, and decision” previously issued.    Minn. Stat. § 268.105,

subd. 2 (f)(2) (2014). Here, the ULJ changed his decision, based in part on Campbell’s

status on a final written warning and her knowledge that her job was in jeopardy. Once

the ULJ has issued his decision on reconsideration, we review that determination, not the

ULJ’s previous decision. See Minn. Stat. § 268.105, subd. 7(a) (2014) (stating that this

court “review[s] the unemployment law judge’s decision on reconsideration”). The initial

decision is replaced.

       In sum, the ULJ did not err by determining that Campbell’s conduct rose to the

level of employment misconduct and by denying her benefits as a result of her discharge.

       Affirmed.




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