Frederick K. Fowler, Relator, vs. Johnson Bros. Wholesale Liquor Co., Respondent, Department of Employment and Economic Development, Respondent.

Frederick K. Fowler, Relator, vs. Johnson Bros. Wholesale Liquor Co., Respondent, Department of Employment and Economic Development, Respondent. A05-684, Court of Appeals Unpublished, December 27, 2005.

This opinion will be unpublished and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

A05-684

 

Frederick K. Fowler,

Relator,

 

vs.

 

Johnson Bros. Wholesale Liquor Co.,

Respondent,

 

Department of Employment and Economic Development,

Respondent.

 

Filed December 27, 2005

Affirmed

Shumaker, Judge

 

Department of Employment and Economic Development

Agency File No. 15412 04

 

 

Frederick K. Fowler, 29864 Sportsman Drive, Chisago City, MN 55013 (pro se relator)

 

Johnson Bros. Wholesale Liquor Co., 1999 Shepard Road, St. Paul, MN 55116 (respondent employer)

 

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

 

            Considered and decided by Lansing, Presiding Judge; Shumaker, Judge; and Hudson, Judge.

 

U N P U B L I S H E D   O P I N I O N

SHUMAKER, Judge

Relator Frederick K. Fowler challenges the decision of the senior unemployment review judge (SURJ) that relator is disqualified from receiving benefits because he was discharged for aggravated misconduct.  Because the evidence supports the SURJ's findings, we affirm.

FACTS

Relator Frederick K. Fowler began working for respondent Johnson Brothers Liquor Company as a truck driver in September 1999.  He was discharged in September 2004 because respondent believed he stole a case of Absolut Vodka, valued at $216, and a case of bottles of various liquors, known as a split case, valued at over $200.  The split case was in a stack labeled for relator's route and the case of vodka was in a stack of cases labeled for another driver's route.  Both cases had stickers indicating their routes, and the stickers were scanned before the boxes were put in the stacks.

A security camera recorded the drivers' motions as they picked up the stacks of cases for their routes.  The camera showed that, on September 2, 2004, relator took not only the cases in the stack for his own route but also three cases from the stack for another driver's route.  The top box in the other driver's stack was a distinctive yellow-orange Jose Cuervo box, and one of the other boxes relator took was readily identifiable as a case of Absolut Vodka because of its bright blue color.  Later that day, the other driver found he was missing a case of Absolut Vodka and two split cases, and he filled out the appropriate credit slips for the customers who had ordered those cases. 

After relator completed his morning route, he returned three cases to respondent.  Two were legitimate returns, but the third case, a split, attracted attention for three reasons.  First, the case was the Jose Cuervo case that had been in the other driver's stack, not in relator's; second, relator's route sticker had been placed over the route sticker of the other driver; and, third, the case contained the bottles that had been in each of the split cases the other driver was missing.  The bottles that had been in the split case marked with relator's route sticker were not in the Jose Cuervo box.  Neither those bottles nor the case of Absolut Vodka from the other driver's stack were ever found.  Relator was discharged because of the theft.

            When relator applied for unemployment benefits, a department adjudicator determined that he had been discharged for aggravated misconduct and was not entitled to benefits.  Relator appealed this decision and, after a telephone hearing on December 9, 2004, an unemployment law judge (ULJ) determined that he had been discharged for aggravated employment misconduct.  Relator again appealed, and a senior unemployment review judge (SURJ) conducted a de novo review and independently determined that relator had been discharged for aggravated misconduct.  Relator now challenges that determination.

D E C I S I O N

Whether an employee is not entitled to benefits for reasons of misconduct is a mixed question of fact and law, but whether the 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).  This court reviews factual findings in the light most favorable to the decision based on them and does not disturb them if the evidence reasonably tends to sustain them.  Id.

Aggravated misconduct is defined as "the commission of any act, on the job or off the job, that would amount to a gross misdemeanor or felony if the act interfered with or adversely affected the employment . . . ."  Minn. Stat. § 268.095, subd. 6(a)(1) (2004).  Theft of property of a value of more than $250 but not more than $500 is a gross misdemeanor under Minn. Stat. § 609.52, subd. 3(4) (2004). 

The SURJ found that "[relator] stole over $250 worth of liquor from [his] employer."  The evidence reasonably tends to sustain this finding.  The camera showed relator taking three cases from the stack for another driver's route in addition to his own cases.  A split case from the stack for relator's route and a case of Absolut Vodka that relator took from the stack for the other driver's route disappeared.  The liquor the other driver reported missing corresponded to the liquor relator took from that driver's stack.  Although relator asserts that he did not steal anything, he offers no explanation as to what happened to either of these cases.  Because the evidence reasonably tends to sustain it, we will not disturb the SURJ's finding.

Affirmed.