Fatoumata Kaba, Relator,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1646

Fatoumata Kaba,
Relator,

vs.

Commissioner of Health,
Respondent.

Filed May 30, 2017
Affirmed
Hooten, Judge

Minnesota Department of Health
File Nos. 24090855, 24057575

Christa Groshek, Joelle Groshek, Groshek Law, Minneapolis, Minnesota (for relator)

Lori Swanson, Attorney General, Timothy S. Christensen, Lindsay K. Strauss, Assistant
Attorneys General, St. Paul, Minnesota (for respondent)

Considered and decided by Smith, Tracy M., Presiding Judge; Hooten, Judge; and
Reilly, Judge.
U N P U B L I S H E D O P I N I O N
HOOTEN, Judge
In this certiorari appeal , relator challenges respondent Commissioner of Health’s
decision denying her request to set aside her disqualification from holding a position that
allows direct contact with persons who receive services from facilities licensed by the
Minnesota Department of Health (DOH) or the Minnesota Department of Human Services
2
(DHS). Relator argues that because she does not pose a risk of harm to persons served by
DOH or DHS programs, respondent’s refusal to set aside her disqualification was both
arbitrary and capricious and not supported by substantial evidence. We affirm.
FACTS
Relator Fatoumata Kaba is a certified nursing assistant who has worked in nursing
home settings providing residents with basic care for several years. At the request of an
employer, DHS performed a background study of Kaba pursuant to Minn. Stat. § 245C.03
(2016). The background study revealed that Kaba pleaded guilty in October 2015 to
misdemeanor theft in violation of Minn. Stat. § 609.52, subd. 2 (a)(1) (2014). DHS notified
Kaba by letter in late July 2016 that her misdemeanor conviction disqualifies her from any
position involving direct contact or access to persons receiving services from facilities
licensed by DOH or DHS. See Minn. Stat. § 245C.14, subd. 1(a)(1) (2016).
Kaba sought reconsideration of her disqualification with respondent Commissioner
of Health. She claimed that she did not pose any risk of harm to the persons receiving
services from DOH or DHS licensed facilities. Kaba stated that her theft conviction was
the result of shoplifting at Walmart and she was unsure how Walmart was harmed by her
theft. And, she alleged that the persons who receive services from DOH or DHS are “not
the same” as the victim of her theft. Kaba also submitted a letter from another employer,
which stated that Kaba had been a “trusted and respected employee” for over 16 years and
that her disqualification would result in a “notable loss.”
In August 2016, the commissioner denied Kaba’s request to set aside her
disqualification. The commissioner evaluated Kaba’s request using the multifactor risk -
3
of-harm analysis under Minn. Stat. § 245C.22, subd. 4(b) (2016) , and determined that she
had not satisfied her burden of demonstrating that she does not pose a risk of harm. This
certiorari appeal followed.
D E C I S I O N
Kaba contends that the commissioner’s refus al to set aside her disqualification is
arbitrary and capricious and without evidentiary support. The commissioner’s denial of
Kaba’s request constitutes a quasi -judicial agency decision that is subject to certiorari
review under Minn. Stat. § 480A.06, su bd. 3 (2016). On certiorari appeal from a quasi -
judicial agency decision, we inspect the record to “review questions affecting the
jurisdiction of the agency, the regularity of its proceedings, and, as to merits of the
controversy, whether the order or de termination in a particular case was arbitrary,
oppressive, unreasonable, fraudulent, under an erroneous theory of law, or without any
evidence to support it.” Rodne v. Comm’r of Human Servs. , 547 N.W.2d 440, 44 4–45
(Minn. App. 1996) (alteration omitted) (quotation omitted) . Kaba has the burden of
proving that the commissioner exceeded his or her statutory authority or jurisdiction.
Lolling v. Midwest Patrol, 545 N.W.2d 372, 375 (Minn. 1996).
We may reverse the commissioner’s decision if it is unsupporte d by substantial
evidence or is arbitrary and capricious. Sweet v. Comm’r of Human Servs. , 702 N.W.2d
314, 318 (Minn. App. 2005), review denied (Minn. Nov. 15, 2005). Substantial evidence
is: “(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; and (5) evidence considered in its entirety.” Dourney v. CMAK Corp.,
4
796 N.W.2d 537, 539 (Minn. App. 2011) (quotation omitted). “An agency’s conclusion is
arbitrary and capricious if there is no rational connection between the facts and the agency’s
decision.” Sweet, 702 N.W.2d at 318. We defer to an administrative agency’s conclusions
that are within its area of expertise . Cable Commc’ns Bd. v. Nor -West Cable Commc’ns
P’ship, 356 N.W.2d 658, 668 (Minn. 1984). And we presume that agency decisions are
correct. J.R.B. v. Dep’t. of Human Servs., 633 N.W.2d 33, 38 (Minn. App. 2001), review
denied (Minn. Oct. 24, 2001).
Upon reconsideration, the commissioner may rescind the disqualification if the
disqualified individual submits information demonstrating that she does not pose a risk of
harm to any person served by a licensed facility. Minn. Stat. § 245C.22, subd. 4(a) (2016).
In determining whether the individual poses a risk of harm, the commissioner must
consider the following nine factors:
(1) the nature, severity, and consequences of the event or
events that led to the disqualification;
(2) whether there is more than one disqualifying event;
(3) the age and vulnerability of the victim at the time of the
event;
(4) the harm suffered by the victim;
(5) vulnerability of persons served by the program;
(6) the similarity between the victim and persons served by
the program;
(7) the time elapsed without a repeat of the same or similar
event;
(8) documentation of successful completion by the
individual studied of training or rehabilitation pertinent
to the event; and
(9) any other information relevant to reconsideration.

Minn. Stat. § 245C.22, subd. 4(b)(1) –(9). In evaluating the se factors, the commissioner
must “give preeminent weight to the safety of each person served by” the licensed facilities.
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Id., subd. 3 (2016). And, “any single factor under subdivision 4, paragraph (b), m ay be
determinative of the commissioner’s decision whether to set aside the individual’s
disqualification.” Id.
In August 2016, the commissioner sent Kaba a letter stating that she failed to show
that she did not pose a risk of harm to the persons rece iving services from DOH and DHS
licensed facilities. In denying Kaba’s petition to set aside her disqualification, t he
commissioner applied and weighed each of these nine statutory factors.
On appeal, Kaba contests several of the commissioner’s findings in arguing that she
does not pose a risk of harm. She first asserts that her misdemeanor theft conviction was
relatively minor compared to other cases in which individuals were disqualified f or
“patterned theft behavior” or other “serious crimes.” 1 But, in evaluating the risk of harm
to persons in DOH and DHS facilities , the commissioner took into account Kaba’s job
duties and the effect of her irresponsible decision -making in caring for persons who were
cognitively and/or physically impaired. As a certified nursing assistant, Kaba was involved
in the care of such vulnerable persons on a regular basis and often in intimate settings,
where she would likely have unsupervised or minimally supervised access to the persons’
personal belongings and effects. The commissioner observed that responsible decision -
making is critical in caring for vulnerable persons, who are dependent upon the assistance

1 Kaba’s argument relies significantly on drawing similarities to several unpublished
opinions from this court. Her reliance on these opinions is misplaced, however, because
this court’s unpublished opinions do not have precedential value. Minn. Stat. § 4 80A.08,
subd. 3 (2016).

6
of a nursing assistant for their daily activities and are highly susceptible to theft -related
offenses.
While Kaba acknowledges that her misdemeanor theft conviction triggered the
seven-year disqualification period under Minn. Stat. § 245C.15, subd. 4(a) (2016), she
claims that because she only committed a single minor offense against Walmart , her
disqualification should be set aside. The commissioner acknowledged that Walmart, as a
business entity, was not a vulnerable victim and did not suffer lasting financial harm as a
result of Kaba’s shoplifting. But the commissioner found that Kaba showed little remorse
for the theft and did not appear to realize the harm that was caused by her action or
understand how such behavior could harm vulnerable persons. In consideration of other
factors weighing against setting aside Kaba’s disqualification, the commissioner noted how
little time had expired since her guilty plea to the theft offense, that she was still on
probation for the offense, and that she had not undergone any treatment , training, or
rehabilitation as a result of her offense . The commissioner explained that under these
circumstances, “the department is not convinced that [ Kaba] no longer pose [s] a risk of
harm to vulnerable adults and minors.”
Based on this record, we conclude that the commissioner’s decision that the safety
of vulnerable persons outweighed Kaba’s interests in setting aside her disqualification was
supported by substantial evidence and was not arbitrary and capricious.
Affirmed.