Bonita M. Kettula, Relator, vs. Furniture Outlets USA Inc., Respondent, Department of Employment and Economic Development, Respondent.

Bonita M. Kettula, Relator, vs. Furniture Outlets USA Inc., Respondent, Department of Employment and Economic Development, Respondent. A05-1143, Court of Appeals Unpublished, March 7, 2006.

This opinion will be unpublished and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

A05-1143

 

 

Bonita M. Kettula,

Relator,

 

vs.

 

Furniture Outlets USA Inc.,

Respondent,

 

Department of Employment and Economic Development,

Respondent.

 

 

Filed March 7, 2006

Affirmed

Willis, Judge

 

Department of Employment and Economic Development

File No. 9 05

 

 

Bonita M. Kettula, 1010 340th Avenue, Frederic, WI 54837-4613 (pro se  relator)

 

Elizabeth A. Papacek, Leonard Street & Deinard, 150 South Fifth Street, Suite 2300, Minneapolis, MN 55402 (for respondent Furniture Outlets)

 

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

 

 

            Considered and decided by Kalitowski, Presiding Judge; Willis, Judge; and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

            Relator challenges the determination that she is disqualified from receiving unemployment benefits because she was discharged for misconduct.  Because we conclude that the act for which relator was discharged was misconduct, we affirm.

FACTS

            Relator Boni Kettula worked on commission as a salesperson for respondent Furniture Outlets USA, Inc.  To deter salespersons from making computer errors, respondent had a policy of taking from a salesperson the credit for a sale in which errors were found and giving the credit for the sale to the house account.

            On September 30, 2004, a sale was credited half to relator and half to another salesperson.  On October 1, 2004, when computer errors were found in the sale, the store manager took the credit for the sale from relator and the other salesperson and gave it to the house account.  On October 7, 2004, relator went into the computer file and took all credit for the sale from the house account, and gave it to herself.  On November 5, 2004, an office manager discovered and reported that relator had taken all credit for the sale. 

            Another office manager confronted relator about the incident.  He testified that relator said that "she was tired that [the store manager] was taking her sales all the time for mistakes that she would make and she was justified in changing [credit for the sale] back."  An assistant manager testified that relator "admitted to changing the commission on [the sale] and feeling justified because [the store manager] has housed sales under her name in the past."  Relator was terminated on November 8, 2004, because of this incident.

            Relator sought unemployment benefits.  A department adjudicator initially determined that relator had not been discharged for misconduct, and respondent appealed.  After a telephone hearing, an unemployment law judge reversed the adjudicator's determination.  Relator appealed, and a senior unemployment review judge (SURJ), acting under Minn. Stat. § 268.105, subd. 2 (2004), conducted de novo review and affirmed.

D E C I S I O N

A determination that an employee is not entitled to unemployment benefits because of misconduct is a mixed question of fact and law.  Colburn v. Pine Portage Madden Bros., 346 N.W.2d 159, 161 (Minn. 1984).  This court will affirm if the findings of fact "are not without support in the evidence" and if "the conclusion on those facts is not contrary to the statutory mandate."  Id. Whether an employee's acts constitute misconduct is a question of law, which this court reviews de novo.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002). 

Misconduct is defined as "any intentional . . . conduct . . . that displays clearly 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) (2004).   "Dishonesty that is connected with employment may constitute misconduct."  Baron v. Lens Crafters, Inc., 514 N.W.2d 305, 307-08 (Minn. App. 1994) (finding misconduct when employee exaggerated the number of store managers that he had trained); see also Cherveny v. 10,000 Auto Parts, 353 N.W.2d 685, 688 (Minn. App. 1984) (finding misconduct when employee gave dishonest answers during employer's investigation of alleged employee theft).  By dishonestly taking all credit for a sale, relator disregarded a standard of behavior that her employer had a right to reasonably expect and committed misconduct within the meaning of Minn. Stat. § 268.095, subd. 6(a).[1]  Relator provides no reason for overturning the SURJ's decision.

Affirmed.

[1] In her brief, relator argues that she should have been able to present new information to the SURJ and to this court.  But such presentation of new information would be contrary to law.  See Minn. Stat. § 268.105, subd. 2(d) ("A senior unemployment review judge shall not . . . consider any evidence that was not submitted at the hearing before the unemployment law judge"); Minn. R. Civ. App. P. 110.01 (providing that the record on appeal consists of papers and exhibits filed with the previous decision-maker and the transcript, if any); Minn. R. Civ. App. P. 115.04 (applying provisions of rule 110 to certiorari appeals).