LaLita Stevenson, Relator, vs. Rainbow Foods, Respondent, Commissioner of Employment and Economic Development, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-737

 

LaLita Stevenson,

Relator,

 

vs.

 

Rainbow Foods,

Respondent,

 

Commissioner of Employment and

Economic Development,

Respondent.

 

Filed December 21, 2004

Affirmed
Crippen, Judge*

 

Department of Employment and Economic Development

File No. 18153 03

 

LaLita Stevenson, 932 Sims Avenue, St. Paul, MN 55106 (pro se relator)

 

Rainbow Food Group, Inc., St. Paul Location, P.O. Box 3930, Des Moines, IA 50322 (respondent)

 

Lee B. Nelson, Department of Employment and Economic Development, 390 North Robert Street, St. Paul, MN 55101 (for respondent Commissioner)

 

            Considered and decided by Toussaint, Chief Judge, Huspeni, Judge,* and Crippen, Judge.

U N P U B L I S H E D   O P I N I O N

CRIPPEN, Judge

            Relator challenges the decision of the commissioner's representative that she was discharged for employment misconduct and is therefore disqualified from receiving unemployment benefits.  Because relevant findings are supported by the record and permit the disputed conclusion, we affirm.

FACTS

            Relator Lalita Stevenson began working for respondent Rainbow Foods as a part-time cashier in January 2001.  On September 6, 2003, relator used a pen to mark down two bars of soap from $2.49 each to $0.10 each, then paid for the items at the discounted price.  As she was leaving the store, relator was apprehended by loss-prevention personnel and was suspended pending an investigation.  On September 15, relator was discharged for marking down the items without authorization, in violation of the employer's policy. 

            A representative of respondent Commissioner of Employment and Economic Development initially determined that relator was qualified to receive unemployment benefits.  After the employer challenged this decision, an unemployment law judge reversed, concluding that relator was discharged for misconduct and was thus disqualified from receiving unemployment benefits.  Relator challenged the decision, but the commissioner's representative affirmed. 

D E C I S I O N

            We are to accord particular deference to the decision of the commissioner's representative.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  We must review the representative's factual findings in the light most favorable to the decision, and we will not disturb those findings if the record reasonably tends to sustain them.  Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996).  We are to defer to the representative's ability to weigh conflicting evidence and to make credibility determinations about proffered testimony.  Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995); see also Jenson v. Dep't of Econ. Sec., 617 N.W.2d 627, 631 (Minn. App. 2000), review denied (Minn. Dec. 20, 2000).  This appeal is confined to disputes on the findings and does not involve the legal question of whether the employee's acts constitute misconduct.  See Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989)(providing for de novo review of legal question).

            An employee who is discharged for employment misconduct is disqualified from receiving unemployment benefits.[1]  Minn. Stat. § 268.095, subd. 4 (Supp. 2003).  Employment misconduct is defined as "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 demonstrates a substantial lack of concern for the employment."  Minn. Stat. § 268.095, subd. 6(a)(1) (Supp. 2003); see also Brown v. Nat'l. Am. Univ., 686 N.W.2d 329 (Minn. App. 2004 (holding statute in effect at time of employee's discharge will be applied); Bray v. Dogs & Cats Ltd. (1997), 679 N.W.2d 182, 186 (Minn. App. 2004) (recognizing that in "cases arising from conduct that occurred after August 1, 2003, the August 1, 2003 changes will be applied"). 

            This court has held that theft from an employer constitutes disqualifying conduct. See, e.g., Manos v. First Bank Minnehaha, 357 N.W.2d 372, 375-76 (Minn. App. 1984);  Dawson v. Northland Beverages, Inc., 347 N.W.2d 287, 288-89 (Minn. App. 1984). Dishonesty connected with employment may also be considered misconduct.  Baron v. Lens Crafters, Inc., 514 N.W.2d 305, 307-08 (Minn. App. 1994).  Furthermore, a knowing violation of an employer's reasonable directives and policies generally constitutes misconduct, as it demonstrates a substantial lack of concern for the employer's interests.  See, e.g., Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002); McGowan v. Executive Express Transp. Enters., Inc., 420 N.W.2d 592, 596 (Minn. 1988); Gilkeson v. Indus. Parts and Serv., Inc., 383 N.W.2d 448, 452 (Minn. App. 1986).

            The commissioner's representative found that (1) the employer has a policy stating that merchandise purchased by employees cannot be discounted without prior authorization from management; (2) relator was aware of this policy and had been warned for violating this policy on more than one occasion; (3) despite knowing that her actions would violate company policy, relator discounted two bars of soap without prior authorization from management; and (4) although the parties presented conflicting evidence, that of the employer was more credible.  The commissioner's representative then concluded that an employer reasonably has the right to expect that its employees will comply with its policies and will refrain from stealing its merchandise, "which, for all intents and purposes, is exactly what [relator] did."  Consequently, the commissioner's representative concluded that relator's conduct was intentional or negligent and demonstrated a serious violation of the standards of behavior that the employer reasonably had the right to expect, or, at the very least, relator was indifferent and demonstrated a substantial lack of concern for her employment. 

            We conclude that the record supports the disputed findings.  At the hearing, the store director testified that relator did not have the authority to mark down items without permission from a manager.  This testimony was bolstered by the employer's written "Employee Purchases" policy, which explicitly states that "[d]iscounts cannot be given to employees for employee purchases unless approved by the [s]tore [d]irector in advance."  The store director testified that this policy was posted in the break room and was reconfirmed with all employees in June 2003. 

            Furthermore, the store director testified that six months prior to relator's discharge, another employee informed him that relator was inappropriately marking down items.  Although he stated that he would need further proof before action could be taken, he met with relator at that time and told her that she was not authorized, under any circumstances, to mark down items.  The store director also testified that relator's direct supervisor made similar directives on at least two prior occasions, and the supervisor's written statement to that effect was admitted into evidence. 

            Although relator argues that she did not know it was wrong to mark down the items because she had done so in the past, the commissioner's representative specifically found that her testimony was not credible.  Because we must defer to the representative's credibility determinations, we find no merit in several arguments relator advances based on conflicting evidence or on her criticism of the documentation or weight of testimony that supports the representative's particular findings.  Whitehead, 529 N.W.2d at 352 (requiring deference).  Moreover, relator admitted that, although she had permission to mark down the items in the past, she did not have permission to do so on September 6, 2003. 

            Affirmed.

* Retired judges of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[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 the subsection to Minn. Stat. § 268.085, subd. 13b).