Skarhus v. Davanni's Inc., No. A05-1995.
| Decision Date | 19 September 2006 |
| Docket Number | No. A05-1995. |
| Citation | 721 N.W.2d 340 |
| Parties | Sarah L. SKARHUS, Relator, v. DAVANNI'S INC., Respondent, Department of Employment and Economic Development, Respondent. |
| Court | Minnesota Court of Appeals |
Sarah Skarhus, Crystal, MN, pro se relator.
Davanni's Inc., Davannis Pizza & Hot Hoagies, Plymouth, MN, respondent.
Linda A. Holmes, Department of Employment and Economic Development, St. Paul, MN, for respondent Department of Employment and Economic Development.
Considered and decided by ROSS, Presiding Judge; GORDON W. SHUMAKER, Judge; and WRIGHT, Judge.
Relator challenges the determination by the unemployment law judge (ULJ) that relator was disqualified from receiving unemployment benefits because she committed employment misconduct and that relator did not show good cause for failing to participate in an evidentiary hearing. Relator argues that (1) her conduct does not satisfy the statutory definition of "employment misconduct" because theft of food valued at less than four dollars was a single incident without a significant adverse impact on her employer, and (2) she did not participate in the hearing because it was too soon to ask her new employer for time off or to use the telephone during working hours. We affirm.
Relator Sarah Skarhus was employed by Davanni's Riverside (Davanni's) from March through July 2005. Skarhus's duties included food preparation and working as a cashier. On July 5, 2005, Skarhus went to Davanni's on her day off and rang up an order for herself. Skarhus ordered extra beef on her sandwich and also placed an order for "Just Cuz" cheese bread. "Just Cuz" is a code indicating that free cheese bread has been given to a customer when there has been an error on the part of Davanni's. Skarhus did not charge herself for the extra beef or the cheese bread, but she charged the rest of her order to her employee account. Another employee reported Skarhus to the management. Skarhus was fired that same day for food theft.
Skarhus applied for unemployment benefits with the Department of Employment and Economic Development (department). Skarhus stated in her application for benefits that she "knew not charging yourself for extra food would get you fired" but that she intended to pay for the additional items and simply rang up the order wrong because she was in a hurry. A department adjudicator made an initial determination that Skarhus had been discharged for employment misconduct.
Skarhus appealed the department's initial determination, and a hearing before a ULJ was scheduled for August 16, 2005. Skarhus faxed a letter on August 15 to the department indicating that she could not participate in the hearing because of her work schedule at her new job. In her letter, Skarhus also challenged the credibility of Davanni's witnesses and alleged that she had been underpaid by Davanni's.
At the hearing, a Davanni's general manager presented receipts and a statement signed by another Davanni's employee describing the incident of misconduct. The total amount of the theft was less than four dollars. Although Skarhus did not participate in the hearing, her faxed letter was received in evidence and considered by the ULJ.
The ULJ determined that Skarhus had been discharged for employment misconduct and, therefore, was disqualified from receiving unemployment benefits. The ULJ concluded that Skarhus's action, although a single incident of misconduct, had a significant adverse impact on Davanni's. The ULJ reasoned that "Skarhus's conduct certainly called into question her honesty and trustworthiness, important considerations for an employee handling an employer's cash."
Skarhus requested reconsideration of the ULJ's decision, seeking another hearing and arguing that the incident did not have a significant adverse impact on Davanni's. In its order of affirmation, the ULJ affirmed Skarhus's disqualification from receiving unemployment benefits. The ULJ found that Skarhus had not shown good cause for missing the first hearing and that a new evidentiary hearing was not required. This certiorari appeal followed.
I. Did relator's theft have a significant adverse impact on her employer so as to constitute employment misconduct?
II. Did relator show good cause for failing to appear at the evidentiary hearing before the ULJ?
III. Is relator entitled to relief based on any of her other arguments?
An employee who is discharged for employment misconduct is disqualified from receiving unemployment benefits. Minn. Stat. § 268.095, subd. 4(1) (2004). Employment misconduct means "intentional, negligent, or indifferent conduct, on the job or off the job (1) that displays clearly a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee, or (2) that displays clearly a substantial lack of concern for the employment." Id., subd. 6(a) (2004). But the statutory definition of employment misconduct specifically exempts "a single incident that does not have a significant adverse impact on the employer." Id. Skarhus argues that, because her conduct falls under this exemption, the ULJ erred in his determination that she is disqualified from receiving unemployment benefits.
When reviewing the decision of a ULJ, we may affirm the decision, remand it for further proceedings, or reverse or modify it if the substantial rights of the petitioner have been prejudiced because the findings, inferences, conclusion, or decision are "(1) in violation of constitutional provisions; (2) in excess of the statutory authority or jurisdiction of the department; (3) made upon unlawful procedure; (4) affected by other error of law; (5) unsupported by substantial evidence in view of the entire record as submitted; or (6) arbitrary or capricious." Minn.Stat. § 268.105, subd. 7(d) (Supp.2005).1
Whether an employee committed employment misconduct is a mixed question of fact and law. Schmidgall v. Film-Tec Corp., 644 N.W.2d 801, 804 (Minn. 2002). Whether the employee committed a particular act is a question of fact. Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn.App.1997). We view the ULJ's factual findings in the light most favorable to the decision, Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996), giving deference to the credibility determinations made by the ULJ, Jenson v. Dep't of Econ. Sec., 617 N.W.2d 627, 631 (Minn.App.2000), review denied (Minn. Dec. 20, 2000). In doing so, we will not disturb the ULJ's factual findings when the evidence substantially sustains them. Minn.Stat. § 268.105, subd. 7(d). But whether the act committed by the employee constitutes employment misconduct is a question of law, which we review de novo. Scheunemann, 562 N.W.2d at 34.
Skarhus admits that she knew taking food from her employer without paying for it was theft and could result in termination. Prior to this incident, Skarhus had signed a Davanni's policy statement indicating that she understood that "[d]ishonesty in any form may be grounds for dismissal" and that "[u]nlawful activity such as theft or vandalism by an employee . . . may be prosecuted by the company." But Skarhus claims that she intended to pay for the food. The ULJ did not find Skarhus's contention credible, and we defer to the ULJ's determination in this regard. Jenson, 617 N.W.2d at 631. Accordingly, the record before us establishes that Skarhus engaged in intentional conduct on the job that seriously violates the standards of behavior the employer has the right to expect of the employee. Minn.Stat. § 268.095, subd. 6(a).
Thus, whether this act of theft is exempt from the statutory definition of employment misconduct turns on whether the theft of food valued at less than four dollars had a significant adverse impact on the employer. We acknowledge that, using the analytical approach urged by Skarhus, we could focus solely on the minimal value of the stolen food. But the value of the stolen items is not the dispositive factor in our analysis. Deciding whether the exemption applies based on the value of the items involved in the theft would not only...
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...instances in which a single incident of misconduct related directly to the employee's job duties. See, e.g. , Skarhus v. Davanni's Inc. , 721 N.W.2d 340, 344 (Minn. App. 2006) (concluding that theft of food involving a minimal dollar value was employment misconduct because the employer coul......
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Abdi v. Department of Employment, No. A07-0945.
...of fact in the light most favorable to the ULJ's decision and defer to the ULJ's determinations of credibility. Skarhus v. Davanni's Inc., 721 N.W.2d 340, 344 (Minn.App.2006). We exercise our judgment in reviewing questions of law de novo. Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (M......
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Koehnen v. Titan Construction, Inc., No. A06-2091 (Minn. App. 11/27/2007)
...32, 34 (Minn. App. 1997). This court reviews factual findings in the light most favorable to the decision. Skarhus v. Davanni's Inc.,721 N.W.2d 340, 344 (Minn. App. 2006). The ULJ's determination may be reversed or modified on appeal only if the decision derives from unlawful procedure, rel......