Robb W. Jezierski, 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This opinion will be unpublished and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
A18-0104

Robb W. Jezierski,
Relator,

vs.

St. Mary’s/Duluth Clinic Health System (Corp),
Respondent,

Department of Employment and
Economic Development,
Respondent.

Filed October 1, 2018
Affirmed
Jesson, Judge

Department of Employment and
Economic Development
File No. 35784011-3

Robb W. Jezierski, Duluth, Minnesota (pro se relator)

St. Mary’s/Duluth Clinic Health System, Duluth, Minnesota (respondent employer)

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

Considered and decided by Jesson, Presiding Judge; Worke, Judg e; and Bratvold,
Judge.

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U N P U B L I S H E D O P I N I O N
JESSON, Judge
Relator Robb Jezierski was terminated from his nursing positio n with
St. Mary’s/Duluth Clinic after it came to light that he ordered controlled drugs from his
employer’s pharmacy without authorization. Jezierski filed for unemployment benefits but
the unemployment law judge denie d this request because Jeziersk i’s behavior violated
Minnesota law and amounted to misconduct—a legal ground for den ying such benefits.
Jezierski appeals, arguing the judge’s decision was in error and that various facts mitigate
the seriousness of his act. Because the improper acquisition o f controlled substances in
violation of state law is serious misconduct, we affirm.
FACTS
Relator Robb Jezierski worked as a registered nurse for St. Mar y’s/Duluth Clinic
Health System (St. Mary’s) since 2005. He was discharged from his employment with
St. Mary’s because of an incident that took place in May 2017 w hen a new nurse was
having difficulties trying to place a nasal gastric tube for a p a t i e n t . T h e n u r s e c a l l e d
Jezierski for help because he had experience with this procedure. Jezierski gave the nurse
some instructions, told her he “didn’t have time for this,” and if she wanted him to put in
the tube, she needed to get an order for two drugs from St. Mar y’s pharmacy because
administering these drugs induces light sedation and pain relie f to counteract the
discomfort from inserting the nasal gastric tube.
The drugs Jezierski had in mind were prescription drugs requir ing a physician’s
approval before they could be ordered from the pharmacy. What happened next is

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disputed. Jezierski claims that the nurse called him back abou t an hour later, informing
him that the doctor authorized t he drugs—something Jezierski co nceded was “not the
greatest protocol to go through” but that “this is the way nurs ing has been done since the
beginning of time.” The other nurse disputes this, denying tha t she ever told Jezierski a
doctor gave authorization for the drugs. Regardless, Jezierski admits that he ordered the
drugs from the pharmacy.1
The pharmacy refused to fill J ezierski’s order without a physi cian’s authorization.
After St. Mary’s looked into the matter, it determined that Jez ierski attempted to order
controlled drugs without proper approval, and because of this, Jezierski’s employment with
St. Mary’s was officially terminated on July 18, 2017.
Jezierski filed for unemployment benefits but was deemed ineli gible by the
respondent Minnesota Department of Employment and Economic Development. Jezierski
initiated an administrative appeal, and a hearing was held in September 2017. A few days
later, the unemployment-law judge issued a written decision concluding that Jezierski was
ineligible for unemployment benefits due to misconduct. Specif ically, the judge
determined that ordering the dr ugs without the express authoriz ation of a physician
constituted a misdemeanor under Minnesota Statutes sections 151.37, subdivision 8 (2016)
and 151.29 (2016). The unemployment-law judge wrote that “[T]h is one incident does
display clearly a serious viola tion of the standard of behavior that Saint Mary’s Duluth
Clinic Health System has the right to reasonably expect of” Jezierski.

1 Jezierski never maintained that the doctor gave him direct authorization to order the drugs,
only that authorization came via the other nurse. The doctor, through hearsay, allegedly
said that he never gave any authorization.

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Jezierski requested that the unemployment-law judge reconsider and offered two
additional pieces of evidence in support of his request. The first was a document allegedly
showing that Jezierski and the ph ysician were paged by the othe r nurse on the incident
date. The second was a statement by someone who, the week after the incident, overheard
the pharmacist comment that the physician in this case “did not intend for that medication
to be given on the general floor.” The unemployment-law judge denied Jezierski’s request,
concluding that this additional evidence “would not likely chan ge the outcome of the
decision” and that the original decision was “factually and legally correct.”
Jezierski petitioned for a writ of certiorari from this court.
D E C I S I O N
An unemployment-law judge determined that Jezierski’s behavior rose to the level
of misconduct—rendering him ine ligible for unemployment benefit s. An applicant is
ineligible for unemployment bene fits if the applicant was disch arged for “misconduct.”
Minn. Stat. § 268.095, subd. 4(1) (2016). Misconduct is define d as “any intentional,
negligent, or indifferent conduct” that clearly displays “a serious violation of the standards
of behavior the employer has the right to reasonably expect of the employee.” Id,
subd. 6(a), 6(a)(1) (Supp. 2017).
Analyzing whether Jezierski’s behavior qualifies as misconduct is a mixed question
of law and fact. Wilson v. Mortg. Res. Ctr. , 888 N.W.2d 452, 460 (Minn. 2016). In this
case, Jezierski does not disput e the underlying action—that is, he admits he placed the
pharmacy order without the named-physician’s authorization. Because the facts are not in
dispute, we focus on determining if Jezierski’s conduct falls u nder the definition of

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misconduct—a question of law this court reviews de novo. Peterson v. Nw. Airlines, Inc.,
753 N.W.2d 771, 774 (Minn. App. 2008), review denied (Minn. Oct. 1, 2008).
The unemployment-law judge based his conclusion that Jezierski committed
misconduct on Minnesota Statutes section 151.37, subdivision 8. That statute states that,
if a drug requires authorization from a licensed practitioner b efore it can be procured,
attempting to procure that drug w ithout authorization is a misd emeanor. Minn. Stat. § §
151.37, subd. 8; 29. Jezierski does not dispute that he placed an order for the drugs and
testified that his behavior was “not the greatest protocol to g o through.” He also
acknowledged that his actions were not permitted “if you go by the rule book,” that rule
book being—in Jezierski’s own words—the “Minnesota State Statutes.”
We agree with the unemployment-law judge that violating a statu te regulating
controlled substances qualifies as misconduct. Even though Jezierski’s behavior was only
one incident in a long career, the Minnesota Supreme Court has held that “[a] single
incident where an employee deliberately chooses a course of action adverse to the employer
can constitute misconduct.” Ress v. Abbott Nw. Hosp., Inc., 448 N.W.2d 519, 524 (Minn.
1989). The supreme court has also stated that if there is “one unique area” where “strict
compliance with protocol and m ilitarylike discipline is required,” it is the medical realm.
Id. at 525. Jezierski admitted to v iolating this “militarylike dis cipline” expected of him.
He understood that attempting to obtain drugs from the hospital pharmacy was a violation
of state law, yet he placed the order anyway. This behavior displayed “a serious violation
of the standards of behavior” that St. Mary’s had the right “to reasonably expect” of
Jezierski. Minn. Stat. § 268.095, subd. 6(a)(1). Because this behavior clearly violated state

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law, we conclude that this singl e incident qualified as miscond uct and the
unemployment-law judge did not err in denying Jezierski benefits.
Jezierski makes various arguments that he claims mitigate the s eriousness of his
case, but we are not persuaded. For example, Jezierski claims that his behavior is standard
practice amongst nurses, but we addressed a similar claim in Dean v. Allied Aviation
Fueling Co. , holding that pointing out viol ations “of an employer’s rules by other
employees is not a valid defense to a claim of misconduct.” 38 1 N.W.2d 80, 83 (Minn.
App. 1986). Jezierski also claims that other employees engaged in the same behavior that
he was discharged for, and these employees avoided negative repercussions. We rejected
this argument in Sivertson v. Sims Sec., Inc., where we determined that the “sole question”
in any unemployment-benefits case is whether the specific emplo yee in the case violated
the employer’s rules. 390 N.W.2d 868, 871 (Minn. App. 1986), review denied (Minn.
Aug. 20, 1986).
Jezierski further claims that th e evidence he attempted to intr oduce in his
reconsideration request would sh ow that the other nurse paged t h e p h y s i c i a n b e f o r e
Jezierski ordered the drug. Esse ntially, Jezierski claims that this evidence demonstrates
that the doctor gave authorization to the other nurse who in turn relayed that authorization
to Jezierski. But this evidence would not change the underlying fact that he placed an order
for a controlled drug without a physician’s authorization.
Jezierski also argues that St. Mary’s did not follow its own disciplinary rules
and agreements in discharging hi m, but this is irrelevant to th e current case. “[A]n
employee’s expectation that the employer will follow its discip linary procedures has no

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bearing on whether the employee’ s conduct violated the standard s the employer has a
reasonable right to expect or whether any such violation is ser ious.” Stagg v. Vintage
Place, Inc., 796 N.W.2d 312, 316 (Minn. 2011).
Finally, Jezierski claims that the board of nursing and the de partment of health
cleared him of wrongdoing in this matter and that their determi nations should guide our
decision here.2 But there is nothing in the r ecord to support these assertion s. Appellate
courts may not base their decisi ons “on matters outside the rec ord on appeal,” and any
matter not produced and received into evidence at the district court or administrative level
“may not be considered.” Plowman v. Copeland, Buhl & Co., 261 N.W.2d 581, 583 (Minn.
1977). Without evidence to support these claims, this argument is not properly before us.3
In sum, Jezierski attempted to p rocure controlled substances f rom his employer’s
pharmacy without authorization. This was a violation of Minnesota law and his employer’s
expectations. Because Jezierski ’s behavior was a serious viola tion of the standards his
employer reasonably expected of him, his behavior amounted to m isconduct. Jezierski is
not entitled to unemployment benefits.
Affirmed.

2 Specifically, Jezierski claims that the board of nursing inves tigated this incident and
found no wrongdoing, and that the department of health offered him a job which—to
Jezierski—means the department knew of this incident and deemed it inconsequential.
3 Further, any determinations by the board of nursing and the department of health have no
weight in our de novo review of the record and application of relevant law.