Leola Banks, Relator v. Regions Hospital, Department of Employment and Economic Development

• Court: Court of Appeals of Minnesota
• Decided: November 9, 2015
• Docket: A15-433
• Status: Unpublished

Opinion

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA IN COURT OF APPEALS A15-0433

Leola Banks, Relator,

vs.

Regions Hospital, Respondent,

Department of Employment and Economic Development, Respondent.

Filed November 9, 2015 Affirmed Ross, Judge

Department of Employment and Economic Development File No. 33085864-3

Leola Banks, St. Paul, Minnesota (pro se relator)

Regions Hospital, St. Paul, Minnesota (respondent)

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

Considered and decided by Chutich, Presiding Judge; Ross, Judge; and Stauber,

Judge. UNPUBLISHED OPINION

ROSS, Judge

Leola Banks’s supervisor discharged Banks from her employment at Regions

Hospital after Banks signed prescription-drug order forms as a licensed pharmacist even

though she was not a licensed pharmacist. Banks appeals from an unemployment-law

judge’s determination that she is ineligible to receive unemployment benefits because she

was discharged for employment misconduct. Because Banks’s misrepresenting herself as

a pharmacist to order drugs constitutes employment misconduct, we affirm.

FACTS

Leola Banks was a pharmacy purchasing agent employed by Regions Hospital

until 2014. Her duties included submitting orders to vendors and wholesalers and

completing the necessary forms to replenish the pharmacy’s inventory.

Five times between February and August 2014, Banks filled out an order form to

initiate a free trial program with a pharmaceutical company to receive prescription drugs.

Banks, who is not a licensed pharmacist, signed her name on the “Pharmacist Signature”

line above a statement that read, “I certify that I am a licensed pharmacist eligible to

receive and dispense this product.” Banks also signed a “packing list” each time the drug

was delivered. She signed the packing list under a statement that began similarly, “I

certify that I am a licensed pharmacist.” And Banks wrote on the packing list that she

carried the title “RPH,” which means “registered pharmacist.” Banks ordered the drugs

for Regions, not for her personal use.

2 A billing anomaly alerted Regions that Banks was signing as a pharmacist.

Regions investigated. It then discharged Banks because it concluded that she had

“affirmatively represented [her]self as a pharmacist on documentation provided to a

vendor, even though [she is] not a pharmacist.” Regions told Banks that she violated the

hospital’s code of conduct and that the hospital’s corrective-action policy provided for

her immediate discharge for “[k]nowingly falsifying or altering records/documents or

other acts of material dishonesty.” Banks knew about this policy.

Banks applied to the Minnesota Department of Employment and Economic

Development for unemployment benefits. The department determined that she is

ineligible for benefits because she was discharged for employment misconduct. Banks

appealed and an unemployment-law judge (ULJ) conducted an evidentiary hearing. The

ULJ determined that Regions discharged Banks for employment misconduct for signing

the forms as a licensed pharmacist. The ULJ therefore held that Banks is ineligible for

unemployment benefits and later affirmed the decision after Banks requested

reconsideration. This certiorari appeal follows.

DECISION

Banks challenges the ULJ’s determination that her signing forms as a licensed

pharmacist constitutes employment misconduct. An employee discharged for

employment misconduct is disqualified from receiving unemployment benefits. Minn.

Stat. § 268.095, subd. 4(1) (2014). Employment misconduct is intentional, negligent, or

indifferent conduct “that displays clearly: (1) a serious violation of the standards of

behavior the employer has the right to reasonably expect of the employee; or (2) a

3 substantial lack of concern for the employment.” Id., subd. 6(a) (2014). Whether an

employee engaged in employment misconduct is a mixed question of fact and law.

Peterson v. Nw. Airlines Inc., 753 N.W.2d 771, 774 (Minn. App. 2008), review denied

(Minn. Oct. 1, 2008). Whether the employee committed a particular act is a fact question,

but whether that act constitutes employment misconduct is a question of law, which we

review de novo. Id. We have only a question of law, because Banks does not dispute the

ULJ’s finding that she signed the forms wrongly indicating that she was a licensed

pharmacist.

The ULJ rightly determined that Banks was discharged for employment

misconduct. Banks knew that the hospital’s policy prohibited falsifying documents and

acting dishonestly. Refusing to abide by an employer’s reasonable policy generally

constitutes employment misconduct. Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804

(Minn. 2002). Regions reasonably prohibits its pharmacy technicians from signing forms

as a pharmacist. Banks’s signing on the pharmacist-signature line and otherwise declaring

herself to be a registered pharmacist constitutes a dishonest act that violated the policy.

We add that Banks violated not only her employer’s policy; she may have committed the

crime of “falsely assum[ing] or pretend[ing] to the title of pharmacist,” Minn. Stat.

§§ 151.17, .29 (2014), and violated the administrative rule that “[p]harmacy technicians

must not represent themselves as pharmacists in any manner.” Minn. R. 6800.3850, subp.

1e(B) (2015). We need not decide whether Banks violated the law and the administrative

rules; it is enough for our purposes that she violated the hospital’s reasonable policy. The

4 ULJ did not err as a matter of law by concluding that Banks committed employment

misconduct and declaring her ineligible for unemployment benefits.

Banks makes several other assertions in her pro se brief, but these are unsupported

by argument or legal authority. “An assignment of error based on mere assertion and not

supported by any argument or authorities in appellant’s brief is waived and will not be

considered on appeal unless prejudicial error is obvious on mere inspection.” Schoepke v.

Alexander Smith & Sons Carpet Co., 290 Minn. 518, 519–20, 187 N.W.2d 133, 135

(1971). We have carefully considered all of Banks’s assertions and find them to be

unconvincing.

Affirmed.