Zebyderu Abay, Relator,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-0196

Zebyderu Abay,
Relator,

vs.

Samaritan Bethany Inc.,
Respondent,

Department of Employment and Economic Development,
Respondent.

Filed August 9, 2021
Affirmed
Ross, Judge

Department of Employment and Economic Development
File No. 39502705-3

Zebyderu Abay, Rochester, Minnesota (pro se relator)

Samaritan Bethany, Inc., Rochester, Minnesota (respondent employer)

Anne B. Froelich, Keri Phillips, Minnesota Department of Employment and Economic
Development, St. Paul, Minnesota (for respondent department)

Considered and decided by Ross, Presiding Judge; Segal, Chief Judge; and Gaïtas,
Judge.
NONPRECEDENTIAL OPINION
ROSS, Judge
After Zebyderu Abay was discharged from her employment as a medical-care
attendant at an assisted-living facility, she applied for unemployment benefits. The

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department of employment and economic development initially granted her application,
but an unemployment -law judge determined instead that she was disqualified from
receiving benefits because she committed misconduct by failing to administer medication
to a resident as prescribed. We affirm because substantial evidence supports the decision.
FACTS
Samaritan Bethany Inc. employed Zebyderu Abay as a medical-care attendant for
seven months at an assisted-living facility and terminated the employment in April 2020.
The Minnesota Department of Employment and Economic Development (DEED) granted
Abay’s application for unemployment benefits, and Samaritan Bethany challenged the
decision. An unemployment-law judge (ULJ) conducted a hearing, making factual findings
that we summarize here.
Abay’s supervisor testified that Abay worked as an attendant for residents of an
assisted-living facility and that her job duties included administering prescribed medication
to residents and reco rding it. The supervisor received complaints about misplaced
medication and monitored Abay’s performance. She saw Abay failing to wash her hands
properly, to put on gloves before dispensing medication, and to properly document
medication dispensing.
Although the supervisor attempted to correct Abay’s error by teaching her the
proper method to document medication dispensing, Abay repeated her mistake the next
day. The facility’s records informed the supervisor that Abay also failed to provide a
resident with medication as prescribed. Abay had documented that she provided a resident
with prescribed medication, but the pill bottle associated with that medication was later

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found on a different floor of the facility unrelated to the resident who had the prescription.
Samaritan Bethany discharged Abay the same day.
The ULJ found that Abay performed her documentation duties using her best effort
and that her documentation errors were not employment misconduct because she lacked
the capacity to comple te the recording as required. But the ULJ determined that Abay’s
failure to administer medication as prescribed constituted employment misconduct. The
ULJ confirmed that determination after Abay asked for reconsideration.
Abay appeals by certiorari.
DECISION
Abay challenges the ULJ’s conclusion that she engaged in employment misconduct.
A person fired for employment misconduct is not eligible for unemployment benefits.
Minn. Stat. § 268.095, subd. 4 (2020). Employment misconduct is “any intentional,
negligent, or indifferent conduct . . . that is a serious violation of the standards of behavior
the employer has the right to reasonably expect of the employee.” Id., subd. 6(a) (2020) .
Whether an employee’s conduct constitutes misconduct is a mixed question of fact and
law. Stagg v. Vintage Place Inc., 796 N.W.2d 312, 315 (Minn. 2011). We examine the
record to review the ULJ’s factual findings and will affirm them if they are supported by
substantial evidence. Minn. Stat. § 268.105, subd. 7(d) (2020); Wilson v. Mortg. Res. Ctr.,
Inc., 888 N.W.2d 452, 460 (Minn. 2016) . Substantial evidence is “such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.” Gonzalez Diaz v.
Three Rivers Cmty. Action, Inc. , 917 N.W.2d 813, 816 n.4 (Minn. App. 2018) (emphasis
and quotation omitted). If the evidence supports the findings, we determine de novo

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whether the person’s conduct constitutes employment misconduct. Stagg, 796 N.W.2d at
315. Abay’s appeal requires us to determine if the evi dence supports the findings and the
findings support the conclusion that she engaged in misconduct.
We first address Abay’s contention that the evidence does not support the ULJ’s
factual finding that she failed to administer medication as prescribed to a resident. The
evidence is not overwhelming, but it supports the findings. We do not reweigh conflicting
evidence here but look to the record only to determine whether the evidence reasonably
supports the ULJ’s factual finding. Wilson, 888 N.W.2d at 460. Testimony at the
evidentiary hearing revealed that Abay was tasked with providing residents with precise
medication as prescribed. Abay’s supervisor testified that Abay was assigned to administer
medication to a first -floor resident and a third-floor resident and to record the
disbursements. Abay’s documentation led the supervisor to conclude that Abay had given
the required medication to the first-floor resident but not the third -floor resident. The
supervisor reasoned that the erroneous omission must have occurred during Abay’s shift.
Although Abay insisted that she did not commit the error, the ULJ was persuaded that she
did. Although the ULJ could have reached a different conclusion based on the conflicting
testimony, substantial evidence exists and therefore supports the ULJ’s factual finding that
Abay failed to administer prescribed medication.
We next address whether Abay’s failing to administer the required medication
constitutes employment misconduct in this case. We hold that it does. A person’ s refusal
or failure to follow an employer’s reasonable policies and requests constitutes a substantial
lack of concern for the employer’s interests and is misconduct. See Schmidgall v. FilmTec

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Corp., 644 N.W.2d 801, 804 (Minn. 2002); see also Brown v. Nat’l Am. Univ., 686 N.W.2d
329, 333 (Minn. App. 2004) (explaining that an employee need not violate an express
policy for his or her conduct to be prohibited and warrant termination), review denied
(Minn. Nov. 16, 2004). For obvious reasons, healthcare employers reasonably require their
employees to comply with strict standards and protocols bearing on patient health. Courts
are in no position to second-guess an employer’s considered judgment regarding what is in
the patient’s best interests. Ress v. Abbott N w. Hosp., Inc., 448 N.W.2d 519, 525 (Minn.
1989). Abay’s failure to carefully and accurately administer the prescribed medication here
resulted from either her negligent or indifferent conduct. This in turn supports the legal
conclusion that she committed a serious violation of the behavioral standards that
Samaritan Bethany reasonably established and is therefore disqualified from receiving
unemployment benefits.
Our conclusion is not altered by Abay’s contention that she was unaware of the
primary reason for her dismissal before the evidentiary hearing and was prepared only to
defend against the allegation that she improperly documented her medication dispensing.
But Samaritan Bethany raised the issue when it appealed to the ULJ. Her claimed difficulty
understanding English also does not raise any due-process concern that compels us to
reverse; she did not request a translator or complain to the ULJ that she did not understand
any part of the proceedings. Her answers to questions corresponded to the questions asked
of her during the hearing.
Affirmed.