Karrie L. Bies, Relator, vs. Jimmy's Grille Exceptionale, Respondent, Department of Employment and Economic Development, Respondent.

Karrie L. Bies, Relator, vs. Jimmy's Grille Exceptionale, Respondent, Department of Employment and Economic Development, Respondent. A05-423, Court of Appeals Unpublished, November 16, 2005.

This opinion will be unpublished and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

A05-423

 

 

Karrie L. Bies,

Relator,

 

vs.

 

Jimmy's Grille Exceptionale,

Respondent,

 

Department of Employment and Economic Development,

Respondent.

 

 

Filed November 16, 2005

Affirmed

Toussaint, Chief Judge

 

Department of Employment and Economic Development

File No. 15082 04

    Karrie L. Bies, 1312 Burke Circle, Maplewood, MN 55109 (pro se relator)  

Nathan Myrum Hansen, 2440 North Charles Street, Suite 224, North St. Paul, MN 55109 (for respondent Jimmy's Grille Exceptionale)

 

Linda Alison Holmes, Dept. of Employment and Economic Development, E200 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101-1351

 

 

            Considered and decided by Toussaint, Chief Judge; Kalitowski, Judge; and Minge, Judge.

 

U N P U B L I S H E D  O P I N I O N

 

TOUSSAINT, Chief Judge

 

            Relator, a discharged employee, challenges the determination of a senior unemployment review judge (SURJ) that relator is not entitled to benefits because she was discharged for misconduct.   Because we see evidence supporting the SURJ's findings and the conclusion based on those findings is not contrary to the statutes, we affirm.

D E C I S I O N

             Relator Karrie Bies applied for unemployment benefits after she was discharged from her job as a server and bartender by respondent Jimmy's Café Exceptionale.  A department adjudicator determined that relator had been discharged for misconduct.  Relator appealed and, following a hearing, an unemployment law judge determined that relator had not committed misconduct.  Respondent appealed, and a SURJ, after a de novo review, determined that relator had committed misconduct.  

            Misconduct is defined as "any intentional, negligent, or indifferent conduct . . . (1) that evinces 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) (Supp. 2003).  A determination that an employee is not entitled to benefits for reasons 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 that this court reviews de novo.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).

            The SURJ found that relator was aware of respondent's policies that "prohibited employees' family members and friends from disrupting the employee while on duty and employees from making or taking personal, non-emergency telephone calls except when on a rest break."  Respondent's owner testified that, when relator was hired, she received and signed the company policies, including one policy that family members, spouses, and friends were not to disrupt employees' work with personal matters and another that employees on duty were not allowed to accept non-emergency phone calls.  Thus, the finding is supported by the evidence.

            The SURJ found that relator was specifically warned, in writing, about "making and taking personal telephone calls while on duty" and about "allowing personal visits from her family and boyfriend to disrupt her work."  The warning was introduced as an exhibit, so this finding is also supported by the evidence.  Moreover, the date on the warning, May 26, 2004, refutes relator's testimony that she had numerous phone calls only during December 2003 and January 2004 in connection with the sale of her house.

            The SURJ further found that "[Relator] received numerous warnings for making and receiving non-emergency telephone calls . . . while she was on duty."  Respondent's owner testified that she had warned relator "[t]hat unless it was an emergency phone call, she should not be getting phone calls during her work shift," that relator received "two, three, four, six calls in a shift," and that relator was "warned probably 20 times in the two years that she was here that her phone calls were an issue."  Relator's supervisor testified that, "during the week, she was only there three-and-a-half or four hours, and she would get two to three calls in that one shift" and that relator both made and received phone calls while on duty.  Again, evidence supports the SURJ's finding.

            An employee who knowingly violates an employer's reasonable policy commits misconduct, particularly when the employee repeatedly violates the same rule despite having been warned.  Id. at 806.  As the SURJ concluded, relator committed misconduct within the meaning of  Minn. Stat. § 268.095, subd. 6 (a):  "any intentional, negligent, or indifferent conduct . . . that evinces a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee . .  . ."

            Affirmed.