Julie Costello, 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This opinion is nonprecedential except as provided by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
A22-0218

Julie Costello,
Relator,

vs.

Fond du Lac Reservation,
Respondent,

Department of Employment and Economic Development,
Respondent.

Filed August 15, 2022
Affirmed
Florey, Judge*

Department of Employment and Economic Development
File No. 47991497-3

Julie Costello, West St. Paul, Minnesota (pro se relator)

Fond du Lac Reservation, Cloquet, Minnesota (respondent employer)

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

Considered and decided by Ross, Presiding Judge; Frisch, Judge; and Florey, Judge.

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

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NONPRECEDENTIAL OPINION
FLOREY, Judge
Pro se relator challenges the decision of an unemployment law judge (ULJ) that
relator is ineligible for unemployment benefits because she was discharged for the
employment misconduct of failing to comply with respondent-employer’s COVID-19
vaccination policy. We affirm.
FACTS
In December 2018, relator Julie Costello began working full-ti me for respondent
Fond Du Lac Reservation (Fond Du Lac) as a secretary in the front-desk area of Fond Du
Lac’s Minneapolis office. Later, in response to the COVID-19 pandemic, the Federal Drug
Administration (FDA) authorized three COVID-19 vaccines, including Pfizer’s vaccine,
for emergency use. The FDA then formally approved the Pfizer COVID-19 vaccine on
August 23, 2021.
On September 13, 2021, Fond Du Lac informed its employees in the human services
division that, in order to maintain their employment, employees must receive their first
dose of a COVID-19 vaccine by October 1, 2021, and be fully vaccinated by November 1,
2021. The policy had exemptions for employees who were unable to get the vaccine for
medical or religious reasons.
Fond Du Lac terminated Costello’s employment after she did not receive the first
dose of the COVID-19 vaccine by October 1. Costello then applied for unemployment
benefits and respondent Minnesota Department of Employment and Economic
Development (department) determined that Costello was ineligible for benefits because she

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was discharged for failing to comply with Fond Du Lac’s vaccination policy. Costello
appealed that decision, and a de novo hearing was conducted.
Costello testified that she chose not to get the vaccine because she believed the
vaccine is unnecessary “if you’re a healthy person and you don’t get sick and you don’t go
to the doctor and you don’t take medication.” Costello also believed that, due to her
“spiritual practices,” and “healthy lifestyle,” she would “have a 99.9 percent chance of
recovering on [her] own” if she contracted COVID-19. But Costello acknowledged that
she did not speak to a doctor about whether she should get the vaccine and did not request
a medical or religious exemption. Fond Du Lac did not participate at the hearing.
A ULJ determined that Costello was ineligible for unemployment benefits because
she quit her job without good reason caused by her employer. Costello requested
reconsideration with the ULJ, who then affirmed the determination that Costello was
ineligible for unemployment benefits. But the ULJ concluded that Costello did not quit
her employment. Instead, the ULJ determined that Costello was discharged for
employment misconduct due to Costello’s failure to abide by Fond Du Lac’s “reasonable”
vaccination policy. This certiorari appeal follows.
DECISION
Costello challenges the ULJ’s decision that she is ineligible for unemployment
benefits because her refusal to abide by Fond Du Lac’s vaccination policy constituted
disqualifying 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.”

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Minn. Stat. § 268.095, subd. 6(a) (2020). An employee who is discharged for employment
misconduct is ineligible for unemployment benefits. Id., subd. 4(1) (2020).
“As a general rule, refusing to abide by an employer’s reasonable policies and
requests amounts to disqualifying misconduct.” Schmidgall v. FilmTec Corp., 644 N.W.2d
801, 804 (Minn. 2002). When an employee knowingly violates an employer’s instructions
and directives, such action amounts to employment misconduct because it is a willful
disregard of the employer’s interests. Id. at 806.
Whether an employee committed employment misconduct is a mixed question of
fact and law. Stagg v. Vintage Place Inc., 796 N.W.2d 312, 315 (Minn. 2011). This court
reviews the ULJ’s factual findings in the light most favorable to the decision and will not
disturb them if evidence in the record substantially supports them. Minn. Stat. § 268.105,
subd. 7(d)(5) (2020); Gonzalez Diaz v. Three Rivers Cmty. Action, Inc., 917 N.W.2d 813,
815-16 (Minn. App. 2018). But whether a particular act constitutes employment
misconduct is a legal issue that is reviewed de novo. Wilson v. Mortg. Res. Ctr., Inc., 888
N.W.2d 452, 460 (Minn. 2016).
On reconsideration, the ULJ modified the decision and determined that “[a]
preponderance of the evidence shows that Costello was discharged” from her employment
for refusing to abide by her employer’s vaccination policy. The ULJ then determined that
Fond Du Lac’s “mandatory vaccination policy was reasonable” because it was
“implemented to minimize the spread of COVID-19 and [to] protect employees and the
public from preventable illness.” The ULJ also noted that the “policy was implemented
after one of the available vaccines was approved by the FDA,” and Fond Du Lac “gave

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employees the opportunity to seek exemptions for medical and religious reasons.” The
ULJ concluded that Costello’s intentional refusal to abide by Fond Du Lac’s “important,
reasonable policy” constituted employment misconduct because Costello “did not have a
sincerely held religious belief not to take the COVID-19 vaccine,” and there is “no
evidence in the record that Costello had medical reasons to be contraindicated to take the
vaccine.”
As an initial matter, Costello argues that Fond Du Lac violated the Health Insurance
Portability and Accountability Act (HIPAA) privacy rule by identifying her as
unvaccinated in a department email and asking her on the phone if she had received a
vaccination. But these arguments are not properly before us because they were not raised
below. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (stating that an appellate
court “must generally consider only those issues that the record shows were presented and
considered by the [district] court in deciding the matter before it” (quotation omitted)).
Moreover, the issue before us is whether Costello was discharged for employment
misconduct, and these arguments are not related to that issue.
Costello argues that her refusal to get the mandatory COVID-19 vaccine does not
constitute employment misconduct because Fond Du Lac’s mandatory vaccination policy
is unreasonable. We disagree. In Potter v. St. Joseph’s Med. Ctr., the relator was
discharged from her position as a registered nurse after she refused to receive an influenza
vaccination in violation of company policy. No. A18-0736, 2018 WL 6729836, at *1
(Minn. App. Dec. 24, 2018). On appeal, this court determined that “because it is a
healthcare institution, [the employer] reasonably requires staff to get flu vaccinations for

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the maximum protection of patient health.” Id. at *5 (quotation omitted). The court also
noted that the employer’s “vaccination policy provided exemption for those employees
unable to be vaccinated for religious or medical reasons.” Id. Thus, this court affirmed
the ULJ’s decision that the relator was ineligible for unemployment benefits because her
refusal to comply with the employer’s reasonable flu-vaccination mandate constituted
disqualifying employment misconduct. Id.
We acknowledge that Potter is a nonprecedential case with no binding authority.
See Minn. R. Civ. App. 136.01, subd. 1(c). But Potter has persuasive value due to its
similarity to this case. See City of St. Paul v. Eldredge, 788 N.W.2d 522, 526-27 (Minn.
App. 2010) (noting that nonprecedential opinions of the court of appeals are not binding
authority but may have persuasive value), aff’d, 800 N.W.2d 643 (Minn. 2011). Similar to
the employer in Potter, Fond Du Lac required its employees to get the COVID-19 vaccine
to ensure “patient, community, and employee safety.” Although there is no indication that,
as in Potter, Fond Du Lac is a health care institution, both employers mandated the vaccines
for health and safety reasons. And, as a front-desk employee, Costello would have ample
contact with the public and other Fond Du Lac employees. Moreover, as the ULJ found,
the policy was not implemented until the vaccine was formally approved by the FDA.
Costello appears to argue that Fond Du Lac’s mandatory vaccination policy was
unreasonable because she did not need the vaccine “due to [her] strong spiritual[ ly] held
beliefs and . . . healthy lifestyle.” But, like the vaccination policy in Potter, Fond Du Lac’s
vaccination policy contained an exemption for religious and medical reasons. The ULJ
found that “Costello did not seek a medical or religious exemption” to Fond Du Lac’s

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vaccination requirement, and that finding is supported by substantial evidence in the
record. Costello testified that she did not seek a medical or religious exemption. In fact,
Costello admitted in her brief that she is “not a [r]eligious person,” and claimed that
“[n]atural medicine is [her] way of life.” Costello also opined at the hearing that the
vaccine was “an experimental thing,” and testified that she did not need the vaccine because
of her “spiritual practices.” Costello’s opinions on the COVID-19 vaccine do not establish
that Fond Du Lac’s policy was unreasonable. Therefore, as in Potter, Fond Du Lac’s
vaccination policy was reasonable under the circumstances.
1
Costello further argues that the ULJ erred in concluding that she is ineligible for
unemployment benefits because there was no “proof” of employment misconduct. But, as
addressed above, Fond Du Lac’s vaccination policy is reasonable under the circumstances
to help slow the spread of COVID-19. And Costello acknowledges that she chose not to
receive the COVID-19 vaccine in violation of Fond Du Lac’s policy. Costello’s intentional
violation of Fond Du Lac’s reasonable vaccination policy constitutes employment
misconduct. See Schmidgall, 644 N.W.2d at 804. Accordingly, the ULJ did not err in
concluding that Costello is ineligible for unemployment benefits.
Affirmed.

1 We note that Costello makes no argument that Fond Du Lac could have offered other,
potentially less intrusive measures, such as increased COVID- 19 testing, as an alternative
to getting the COVID- 19 vaccine. See Moore v. Hoff, 821 N.W.2d 591, 595 n.2 (Minn.
App. 2012) (stating that issues not briefed on appeal are waived).