Karen M. Erickson, 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This opinion is nonprecedential except as provided by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
A21-0999

Karen M. Erickson,
Relator,

vs.

Legacy of Delano, LLC,
Respondent,

Department of Employment and Economic Development,
Respondent.

Filed April 25, 2022
Affirmed
Smith, Tracy M., Judge

Department of Employment and Economic Development
File No. 41706905-6

Karen M. Erickson, Howard Lake, Minnesota (pro se relator)

Jenny H. Fuller, Fox Rothschild LLP, Minneapolis, Minnesota (for respondent-employer)

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

Considered and decided by Reilly, Pr esiding Judge; Connolly , Judge; and Smith,
Tracy M., Judge.
NONPRECEDENTIAL OPINION
SMITH, TRACY M., Judge
Relator Karen Erickson appeals an unemployment-law judge’s (ULJ) determination
that she is ineligible for unemployment benefits because she was discharged due to
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employment misconduct. Because the record su pports the ULJ’s findings that Erickson
engaged in conduct that violated her employer’s policies, and because those acts constitute
employment misconduct, we affirm.
FACTS
Erickson worked as a home health aide for Legacy of Delano, LLC, from March 2,
2020, to June 26, 2020. Legacy discharged Erickson on June 26 following a number of
incidents at work.
Legacy has a policy prohib iting employees from using th eir personal phones in
common areas or in front of clients. On April 7, Erickson used her cellphone to talk with
her daughter in the lobby area and spoke loudly on the call. The ULJ found that Erickson
was not on break at the time of the call. Er ickson received counseling from Legacy and
was required to review the policy.
Legacy also has a policy and standard of practice requiring that medications be
signed for when they ar e received and that all narcotics be recorded in a narcotics book.
The ULJ found that Eric kson received training on this policy and practice. On May 14,
Erickson placed narcotic medication into a resident’s lockbox without recording that it had
been received. As a result, Erickson received counseling from Legacy.
Other incidents involving medication fo llowed. On May 26, Erickson recorded
administering medication to a resident when she had not done so. On May 27, Erickson
left her medication keys in a medication cab inet with the door open. She also left
medications on a counter after administering th em and did not lock th em up. In addition,
Erickson improperly turned in medication cards to be destroyed that were not meant to be
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destroyed because she did not know which me dication cards should destroyed and which
ones should not be. Erickson again received counseling from Legacy, and Legacy extended
her introductory period.
On June 11, Erickson signed off on having administered Vitamin D to a resident
even though she had not administered it. Erickson again received counseling and received
reeducation on medication administration.
Other issues followed. On June 12, while being supervised, Er ickson attempted to
administer eye drops without gloves on, attempted to go from one room to another without
performing required hand hygiene, and crus hed medication into a client’s food but
attempted to leave without ob serving the client take th e medication. Erickson was
reeducated about policies and procedures.
Finally, Legacy has a policy that requires the involvement of two people when using
a mechanical lift to lift a resident. Erickson received training that this was Legacy’s policy.
On June 19, Erickson lifted and transported a resident to the bathroom by herself although
the resident’s record required the use of the two-person mechanical lift.
On June 26, Legacy discharged Erickson for violating policies and procedures after
receiving coaching.
Following her discharge, Erickson appl ied for unemployment benefits with
respondent Minnesota Department of Employment and Economic Development (DEED).
DEED administratively determined that Er ickson was not eligib le for unemployment
benefits because Legacy discharged her fo r employment misconduct. Erickson appealed
that decision.
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A ULJ conducted a hearing on Erickson’s appeal. Erickson appeared at the hearing,
as did Legacy’s executive director and director of health services. The ULJ determined that
Erickson engaged in both inte ntional and negligent conduct in violation of Legacy’s
reasonable policies and its reasonable expect ation that she perform her job duties as
directed. The ULJ cited Erickson’s failure to properly store and record medications, failure
to properly administer and accurately record the administration of medications, failure to
follow handwashing and gloving procedures, and lifting of a resident by herself when the
resident’s records called for use of a two-pe rson mechanical lift. The ULJ concluded that
these actions constituted employment misconduct. Erickson requested reconsideration, and
the ULJ affirmed the decision.
This certiorari appeal follows.
DECISION
Erickson argues that the ULJ erred by determining that she committed employment
misconduct and that the ULJ wrongly permitted testimony from the executive director that
referred to a document that was not submitted as an exhibit.
I. The ULJ did not err by determining th at Erickson was discharged due to
employment misconduct.

An employee generally is ineligible for unemployment bene fits if she “was
discharged because of employment misconduct.” Minn. Stat. § 268.095, subd. 4(1) (2020).
Whether an employee committed employment misconduct is a mixed question of fact and
law. Wilson v. Mortg. Res. Ctr., Inc. , 888 N.W.2d 452, 460 (Minn. 2016). The
determination of whether an employee committe d a particular act is a question of fact.
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Cunningham v. Wal-Mart Assocs., Inc., 809 N.W.2d 231, 235 (Minn. App. 2011). “Factual
findings are reviewed in the lig ht most favorable to the deci sion, giving deference to the
credibility determinations made by the ULJ, and will not be disturbed when the evidence
substantially sustains them.” Lawrence v. Ratzlaff Motor Express Inc. , 785 N.W.2d 819,
822 (Minn. App. 2010), rev. denied (Minn. Sept. 29, 2010). Wh ether the factual findings
establish employment misconduct is a question of law, which we review de novo. Id.
A. The ULJ’s factual findings are supported by the record.
Erickson disputes two factual findings.
First, Erickson argues that the ULJ erred by finding that she was not on break when
she used her cellphone. Legacy’s executive director stated during the hearing that Erickson
was not on break at the time of the call, that the call occurred arou nd 2:15 p.m., that
Erickson’s break was from 1:15 to 1:53 p.m., and that Erickson clocked in and out for her
break. The ULJ found th e executive director’s testimony credible. More over, during the
hearing, Erickson appeared to concede that th e call took place after her break, stating, “I
don’t, whatever she said my timecard said. I believe her” and “[I]f that’s what she said and
my timecard said, then that’s what my timecard said.” The ULJ’s factual finding regarding
Erickson’s cellphone use is supported by the record.
Second, Erickson argues that the ULJ erre d in finding that she was trained to log
narcotics because, while she was trained to log narcotics after gi ving medication to a
resident, she was not trained to accept narco tics into the building un til after the incident
occurred. At the hearing, Erickson testified that she should not have been asked to sign for
the narcotics because sh e “did not have training for putti ng narcs in the book when they
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were received.” The executive director testifie d that Erickson placed medications into a
cabinet without recording the narcotics in a book and that Erickson would have been
trained to record the narcotic s. The executive director tes tified that home health aides
receive initial training on accep ting packets of new narcotics into the building and that
“[t]hat is part of their job.” The ULJ found that Erickson’s testimony was “less credible
[than the executive director’s] because it was uncertain and less reasonable.” Although the
evidence was conflicting, we defer to the ULJ’s credibility determinations. The ULJ’s
factual finding that Erickson wa s trained to log narcotics befo re the incidents at issue is
supported by the record.
B. The ULJ did not err by concluding that Erickson’s actions constituted
unemployment misconduct.

Erickson argues that the ULJ erred by de termining that her actions constituted
employment misconduct.
“Employment misconduct means any intentional, negligent, or indifferent conduct,
on the job or off the job, that is a serious violation of the standards of behavior the employer
has the right to reasonably expect of the employee.” Minn . Stat. § 268.095, subd. 6(a)
(2020). In general, an employ ee’s failure “to abide by an employer’s reasonable policies
and requests” constitutes employment misconduct. Schmidgall v. FilmTec Corp. , 644
N.W.2d 801, 804 (Minn. 2002).
Legacy had reasonable policies and st andards in place go verning the safe
maintenance of narcotics and resident care. Erickson’s conduct violated those policies and
standards. Most significantly, Erickson placed narcotics into a cabin et without recording
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that they had been received; on more than one occasion, she recorded administering
medication to a resident when she had not done so; and she lifted and transported a resident
by herself when Legacy’s policy dictated that two people were required to lift the resident.
As the ULJ concluded, some of Erickson’s violations were intentional and some were
negligent. And the violations were serious because they occurred despite training and
repeated coaching and because they involved the safety of residents.
Erickson contends that the ULJ erred by concluding that any of her conduct was
negligent because, in response to a DEED reque st for information prior to the hearing,
Legacy answered, “No,” when asked whet her the employee was “negligent in the
performance of [her] duties, as opposed to unable to meet expectations.” But an employer’s
characterization of conduct as not negligent is not determinative. See Minn. Stat.
§ 268.105, subd. 1(a) (2020). And the ULJ’s factual findings support the determination of
negligence. Erickson received co unseling after she failed to re cord narcotics. But shortly
thereafter she violated policies and standard s regarding medication and resident care,
including by recording that she administered a medication that she did not administer. She
received additional counseling and signed a counseling form stating, “I totally understand
this. I knew what I was doing a nd got ahead of myself.” Bu t again, Erickson recorded
administering medication that she did not administer. The ULJ did not err by determining
that Erickson engaged in negligent conduct that seriously violated her employer’s
reasonable standards for resident care.
Erickson also challenges the ULJ’s decisi on because, she asserts, Legacy has not
discharged other employees who have violat ed medication policies and standards. But
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whether other employees violated an employer’s rules and were not discharged is irrelevant
to whether Erickson engaged in disqualifying employment misconduct. See Sivertson v.
Sims Sec., Inc. , 390 N.W.2d 868, 8 71 (Minn. App. 1986), rev. denied (Minn. Aug. 20,
1986).
In sum, the ULJ did not err by determini ng that Erickson was discharged because
of employment misconduct.
II. The ULJ did not abuse its discretion regarding the admission of evidence at the
hearing.

Erickson suggests that th e ULJ made an evidentiary error, rendering the hearing
unfair. She writes, “If the documents are supposed to be copied to the State of Minnesota
and to the parties before the court hearings vi a the court of law, in order for them to be
accepted, why were they accepted?”
A ULJ “must ensure that all relevant f acts are clearly and fully developed” and
“assist all parties in the presentation of ev idence.” Minn. R. 3310.2921 (2021). A ULJ’s
evidentiary rulings are reviewed for an abuse of discretion. CUP Foods, Inc. v. City of
Minneapolis, 633 N.W.2d 557, 566 (Minn. App. 2001), rev. denied (Minn. Nov. 13, 2001).
Erickson does not identify any admitted exhibits that she believes were wrongly
admitted, and she had no objections to any exhibits at the hearing. Rather, Erickson appears
to refer to a document that Legacy attempted to introduce that it had submitted but that was
apparently not timely shared with Ericks on as required for proposed exhibits. By
description at the hearing, th at document consisted of reco rds of Legacy’s policies and
documentation of Erickson’s training, investigation, and discharge. Because that document
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was not included in the proposed exhibits, the ULJ did not admit it into evidence. But the
ULJ permitted the executive dire ctor to refer to it during he r testimony and stated, “[I]f
there are any issues or, um, things that are di scussed that I need to have submitted again,
we can discuss it at the end of the hearing.” The executive director did refer to the document
when testifying regarding Erickson’s times heet on the day she used her cellphone during
breaktime and regarding her training on recording narcotics.
We discern no abuse of discretion. The ULJ did not admit a document that
apparently was not pr operly presented as a proposed exhibit. The ULJ permitted the
executive director to refer to the document during her testimony, and she did. But Erickson
raised no objection to that testimony, nor di d she ask to see the document or request any
other relief at the hearing. The ULJ’s treatment of the document and related testimony was
within the ULJ’s discretion and did not render the evidentiary hearing unfair.
Affirmed.