Department of Employment and Economic Development File No. 29852812-3
Nancy Dorianna Kolstad, Woodbury, Minnesota (pro se relator) Regions Hospital, St. Paul, Minnesota (respondent employer)
Lee B. Nelson, Amy R. Lawler, Department of Employment and Economic Development, St. Paul, Minnesota (for respondent Department)
Considered and decided by Ross, Presiding Judge; Bjorkman, Judge; and Kirk, Judge.
A coworker reportedly witnessed pharmacist Nancy Kolstad drinking unprescribed prescription cough medicine containing codeine while on the job at Regions Hospital. Kolstad appeals from an unemployment law judge's determination that she is ineligible to receive unemployment benefits because she was discharged from her position for employment misconduct. Because the evidence substantially supports the unemployment law judge's findings of fact, we affirm.
Nancy Kolstad was working as a pharmacist at Regions Hospital when another pharmacist witnessed her ingesting Cheratussin AC, a prescription cough syrup containing codeine. The pharmacists had been keeping the Cheratussin unsecured on a counter because they frequently used it to fill prescriptions. The next day the witnessing pharmacist reported what she saw to the pharmacy manager, who in turn reported it to the pharmacy director. The two supervisors then watched a videorecording of the counter, which was within view of a security camera. They saw Kolstad take the bottle of Cheratussin from the counter, pour the Cheratussin into her coffee cup, and ingest it.
That same day the Regions Hospital safety and security director interviewed Kolstad. She acknowledged that Cheratussin was on the counter, but she said she didn't know whether she put some of it into her coffee cup. She admitted that she took something off the counter and poured it into her cup, but she claimed that she thought it was coffee creamer. She added that she had felt ill when she got home that evening and had thrown up. The hospital terminated her employment the next day for theft and consuming a controlled substance on duty.
Kolstad sought unemployment benefits and was initially deemed eligible after an employee at the department of employment and economic security concluded that she was not terminated for employment misconduct. Regions appealed this conclusion and an unemployment law judge (ULJ) conducted a hearing and found that Kolstad had been very tired on the day of the incident and that pharmacy management was to blame for her drug consumption because it had failed to accommodate Kolstad's mental-health-related requests for scheduling changes. The ULJ did find that Kolstad put the Cheratussin into her cup and drank it, concluding that she did so only on mistaking it for coffee creamer. The ULJ therefore held that Kolstad was not discharged for employment misconduct and that she was eligible to receive unemployment benefits.
Regions Hospital requested reconsideration. A different ULJ reviewed the case and reversed the first ULJ's decision, holding that the previous findings and decision were factually and legally erroneous. He found that Kolstad poured Cheratussin AC from the bottle into her coffee mug and drank it. He found that she had no prescription or permission to consume the medication and that she knew that the bottle contained Cheratussin.
The ULJ also made findings on the credibility of the witnesses. He found Kolstad's testimony incredible, deeming implausible the notion that she could not distinguish between cough syrup and coffee creamer. The ULJ further found that the pharmacy director and manager provided credible testimony about the surveillance footage and the investigation, and that this supported the conclusion that she intentionally took the medication and was discharged for medication theft and prescription-medicine consumption. He also concluded that Kolstad's conduct constituted a serious violation of Regions Hospital's expectations and that she could "no longer be trusted to perform the duties of her job as a pharmacist." For these reasons, the ULJ held that Kolstad was discharged because of employment misconduct and is ineligible for ...