Brenda L. Tefft, Relator, vs. Visual Edge, Inc., Respondent, Department of Employment and Economic Development, Respondent.

Brenda L. Tefft, Relator, vs. Visual Edge, Inc., Respondent, Department of Employment and Economic Development, Respondent. A04-2508, Court of Appeals Unpublished, November 22, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-2508

 

Brenda L. Tefft,

Relator,

 

vs.

 

Visual Edge, Inc.,

Respondent,

 

Department of Employment and Economic Development,

Respondent.

 

Filed November 22, 2005

Affirmed

Gordon W. Shumaker, Judge

 

Department of Employment and Economic Development

File No. 12882 04

 

 

Gerald S. Weinrich, 421 1st Avenue S.W., Suite 301 West, Rochester, MN 55902 (for relator)

 

Visual Edge, Inc., 7062 York Avenue South, Edina, MN 55435-4123 (respondent-employer)

 

Linda A. Holmes, Minnesota Department of Employment and Economic Development, First National Bank Building, 332 Minnesota Street, Suite E200, St. Paul, MN 55101-1351 (for respondent Department of Employment and Economic Development)

 

 

            Considered and decided by Minge, Presiding Judge; Kalitowski, Judge; and Shumaker, Judge.

 

U N P U B L I S H E D   O P I N I O N

GORDON W. SHUMAKER, Judge

            Relator challenged the decision by a senior-unemployment-review judge that she was disqualified from receiving unemployment benefits.  Because her deliberate actions constituted employment misconduct, we affirm.

FACTS

Relator Brenda Tefft began working for Visual Edge, Inc., in January 2003 as a store manager.  Despite her salaried status, Visual Edge required Tefft to record her starting and finishing work time by "punching" a time-recording clock.  In March 2003, Visual Edge amended its policy regarding time records so that "[u]nder no circumstances may an associate record another's time or make any notations on another associate's time card."  This applied to Tefft as the store manager, and she read and signed the amended policy.

On May 11, 2004, Tefft punched a subordinate employee into the time-recording system two hours before the employee arrived for work.  Tefft also asked the subordinate to punch her out, and the employee obliged.  In addition, Tefft had employees punch her out of the time-reporting system a "few times" prior to the May 11, 2004, incident.  On June 24, 2004, Visual Edge discharged Tefft for time-card fraud.

An adjudicator for the Department of Employment and Economic Development determined that Tefft was disqualified from receiving unemployment benefits because Visual Edge discharged her for employment misconduct.  Tefft appealed to an unemployment-law judge (ULJ), who reversed the adjudicator's ruling and found that Tefft was discharged for reasons other than misconduct.  Visual Edge then appealed to a senior unemployment review judge (SURJ).  The SURJ concluded that Tefft's violation of the time-card policy constituted misconduct and reversed the ULJ's decision.  This certiorari appeal followed.

D E C I S I O N

 

This court reviews the SURJ's decision and gives it special deference.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  The SURJ's determination that an employee is disqualified for misconduct is a mixed question of fact and law.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  Whether an employee committed a specific act alleged to be misconduct is a question of fact that this court will not reverse if reasonably supported by the record.  Id.  Whether a specific act constitutes misconduct is a question of law that this court reviews de novo.  Id.

An employee discharged for employment misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4 (Supp. 2003).[1] Employment misconduct is "any intentional, negligent, or indifferent conduct, on the job or off the job (1) that evinces a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee, or (2) that demonstrate a substantial lack of concern for the employment."  Id., subd. 6(a) (Supp. 2003).  Conduct is intentional if it is deliberate and not accidental.  Houston v. Int'l Data Transfer Corp., 645 N.W.2d 144, 149 (Minn. 2002).

Tefft first argues that asking other employees to punch her out when she had forgotten to was merely a simple error in judgment that does not rise to the level of misconduct.  Failure to abide by an employer's time-reporting policy, however, constitutes misconduct.  McKee v. Cub Foods, Inc., 380 N.W.2d 233, 236 (Minn. App. 1986).  Tefft admits that on May 11, 2004, she deliberately punched another employee into the time-recording system and that the employee later punched Tefft out.  When confronted by her supervisor, Tefft said, "I know I shouldn't have, but I did."  Tefft also admits that on the few occasions when she left work and had forgotten to punch out, she called the store while driving home and had another employee punch her out.  While Tefft is correct in stating that good-faith errors in judgment are not misconduct, Minn. Stat. § 268.095, subd. 6(a), her prior knowledge of Visual Edge's policy and undisputed statement when confronted by her supervisor preclude any reliance on the good-faith defense.  Tefft's deliberate conduct, which she knew violated Visual Edge's policy, is misconduct that disqualifies her from receiving unemployment benefits.

Tefft further argues that since she was a salaried, not an hourly, employee, her actions did not prejudice Visual Edge and therefore did not amount to misconduct.  But a showing of prejudice to an employer is not required when determining misconduct resulting from multiple incidents.  See id. 

Lastly, Tefft asserts that she punched in another employee as a "test" of the other employee's honesty.  The SURJ did not find this justification credible, relying instead upon Tefft's own admissions concerning her conduct.  When parties present conflicting evidence, this court defers to the SURJ's ability to weigh the evidence.  Vargas v. Northwest Area Found., 673 N.W.2d 200, 205 (Minn. App. 2004), review denied (Mar. 30, 2004).

            Affirmed.

[1]  The revisor's office inadvertently substituted the term "ineligible for" for the term "disqualified from" in Minn. Stat. §  268.095, subds. 1, 4, 7, 8(a) (Supp. 2003).  See Minn. Stat. § 268.095, subds. 1, 4, 7, 8(a) (2002) (using term "disqualified from"); 2003 Minn. Laws 1st Spec. Sess. ch. 3, art. 2, § 11 (making other changes to Minn. Stat. § 268.095, subd. 1, but retaining term "disqualified from"); 2003 Minn. Laws 1st Spec. Sess. ch. 3, art. 2, § 20(j), (k) (directing revisor to change the term "disqualified from" to "ineligible for" only in Minn. Stat. § 268.095, subd. 12, and then to renumber to Minn. Stat. § 268.095, subd. 13b).