Pamela Wilhelm, 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This opinion is nonprecedential except as provided by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
A22-0443

Pamela Wilhelm,
Relator,

vs.

Fairview Health Services,
Respondent,

Department of Employment and Economic Development,
Respondent.

Filed December 27, 2022
Affirmed
Ross, Judge

Department of Employment and Economic Development
File No. 48189946-3

Thomas C. Atmore, Martin & Squires, P.A., St. Paul, Minnesota (for relator)

Nicole Moen, Fredrikson & Byron, P.A., Minneapolis, Minnesota (for respondent Fairview
Health Services)

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

Considered and decided by Frisch, Presiding Judge; Ross, Judge; and Connolly ,
Judge.
2
NONPRECEDENTIAL OPINION
ROSS, Judge
Fairview Health Services terminated the employment of nurse Pamela Wilhelm for
accessing medical records without consent or a business reason. The department of
employment and economic development denied Wilhelm’s request for unemployment
benefits, and an unemployment-law judge upheld that decision after finding that Wilhelm’s
policy violation constituted employment misconduct. Because the record supports the
finding that Wilhelm violated Fairview’s patient-privacy policy and because the violation
constitutes employment misconduct, we affirm.
FACTS
Pamela Wilhelm worked as a Fairview Health Services nurse for 41 years until
2021, when she was discharged from employment for violating Fairview’s privacy policy.
Fairview prohibits employees from accessing patient medical charts without a business
reason. Wilhelm accessed her son’s girlfriend’s medical chart without the girlfriend’s
knowledge or consent. To maintain her privacy, we refer to the girlfriend as Jane.
Wilhelm had been home on a lunch break from work when she encountered Jane,
who had contracted COVID-19 and who appeared to Wilhelm to be developing pneumonia.
After Jane declined Wilhelm’s recommendation to seek emergency- room care, Wilhelm
returned to work and a ccessed Jane’s medical chart to search for a medical-appointment
opportunity. Because Jane and Wilhelm shared an address, Fairview’s automated records
system flagged Wilhelm’s actions. Fairview staff investigated and determined that
Wilhelm had violated the privacy policy. Fairview terminated Wilhelm’s employment.
3
Wilhelm applied to the Minnesota Department of Employment and Economic
Development for unemployment benefits. The department declined Wilhelm’s request,
concluding that she was discharged for employment misconduct. Wilhelm challenged that
conclusion, and after a hearing an unemployment-law judge (ULJ) also determined that
she had engaged in disqualifying employment misconduct. Wilhelm appeals by certiorari.
DECISION
Wilhelm challenges the ULJ’s determination on procedural and substantive
grounds. She argues that the ULJ relied on an improper procedure, that the ULJ
insufficiently assessed witness credibility, and that substantial evidence did not support the
ULJ’s determination that she engaged in employment misconduct. We may reverse a ULJ’s
decision denying unemployment benefits if, among other things, his findings, inferences,
conclusion, or decision rest on an unlawful procedure or on insubstantial evidentiary
support. Minn. Stat. § 268.105, subd. 7(d)(3), (5) (2022). Wilhelm’s challenges fail.
I
Wilhelm first argues that the ULJ’s decision rests on an unlawful procedure. We
review procedural challenges underlying a ULJ’s decision for an abuse of discretion in
light of the ULJ’s discretion to determine the manner of the proceeding and to exclude
irrelevant, immaterial, unreliable, or unduly repetitious evidence. See Minn. R. 3310.2921,
.2922 (2021). Wilhelm contends that the ULJ engaged in an unlawful procedure by
conducting an unfair hearing in which he refused to allow Wilhelm to call two witnesses
to testify —Jane and a fellow nurse. The contention fails because a ULJ may limit
repetitious testimony.
4
Wilhelm argues specifically that Jane should have been allowed to testify about the
examination Wilhelm performed when she became concerned about Jane’s COVID-19
symptoms and that her fellow triage nurse should have been allowed to testify about how
nurses check the Fairview system for appointments, what health information is visible in
the system, and whether a nurse in Wilhelm’s position had authority to access the chart to
look for appointments. But Wilhelm had already testified about these things. Because
refusing to accept repetitive evidence falls within the ULJ’s discretion and, in any event,
Wilhelm has identified no prejudice from excluding the testimony, we will not reverse
based on the allegedly unlawful procedure.
Wilhelm references three other procedural issues, contending that the ULJ unfairly
failed to assist Wilhelm to present evidence, improperly challenged Wilhelm’s testimony,
and wrongly attempted to force Wilhelm to make admissions. She fails to develop these
into supported legal arguments, and our review of the record belies each assertion.
II
Wilhelm contends second that the ULJ made insufficient credibility determinations.
A ULJ must set out the reasons for crediting or discrediting a witness’s testimony if that
testimony significantly impacted the decision. Minn. Stat. § 268.105, subd. 1a(a) (2022).
We will uphold a ULJ’s credibility determination so long as substantial evidence supports
it. Ywswf v. Teleplan Wireless Servs., Inc., 726 N.W.2d 525, 5 31–33 (Minn. App. 2007);
Wichmann v. Travalia , 729 N.W.2d 23, 29 (Minn. App. 2007). Only two witnesses
testified: Wilhelm and Fairview’s representative. The ULJ found the Fairview
representative’s testimony more credible than Wilhelm’s, observing that the
5
representative’s testimony was “detailed, specific and was more reasonable given the
circumstances.” Substantial evidence sufficiently supports the ULJ’s credibility
determinations.
III
Wilhelm contends last that the ULJ erroneously determined that Fairview
discharged her for employment misconduct. We review the ULJ’s factual findings of
behavior to determine if evidence reasonably supports them, and we review de novo
whether the behavior constitutes employment misconduct. Wilson v. Mortg. Res. Ctr., Inc.,
888 N.W.2d 452, 460 (Minn. 2016). Employment misconduct includes intentional conduct
that constitutes “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) (2022). The ULJ
found that Wilhelm violated Fairview’s privacy policy by accessing Jane’s medical chart
without permission or a business reason and that the violation constituted employment
misconduct. He reasoned that Fairview reasonably expected its employees not to access
patient records without a business reason and that Wilhelm’s purported business reason,
her concern for Jane, was neither credible nor a business reason. The representative’s
testimony, the ULJ’s credibility decision, and our understanding that medical-care facilities
have a legal duty to strictly maintain patient confidentiality support the findings.
We are not persuaded otherwise by Wilhelm’s assertion that her conduct is excepted
from the employment-misconduct definition, claiming that it constitutes “conduct an
average reasonable employee would have engaged in under the circumstances” and was
merely a “good faith error[] in judgment.” See Minn. Stat. § 268.095, subd. 6(b)(4), (b)(6)
6
(2022). Wilhelm did not raise these issues before her appeal to this court, and we decline
to review issues the ULJ did not consider. Peterson v. Ne. Bank-Minneapolis, 805 N.W.2d
878, 883 (Minn. App. 2011). We add that, even if the arguments had been raised, they are
unconvincing. The average reasonable employee follows her employer’s reasonable
policies. See Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002) . And the
“good faith error in judgment” exception applies only “if [the employee’s] judgment was
required.” Minn. Stat. § 268.095, s ubd. 6(b)(6). The record shows that Fairview expects
employees to strictly follow its privacy policy, leaving no place for an employee’s
judgment or discretion as to whether she may access patient information without a business
reason.
Affirmed.