Opinion
No. C3-99-2130.
Filed August 8, 2000.
Appeal from the Department of Economic Security, File No. 1837-99.
Jean A. Micheln, (pro se relator)
Video Update, Inc., (respondent employer)
Kent E. Todd, (for respondent commissioner)
Considered and decided by Willis, Presiding Judge, Lansing, Judge, and Parker, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).
UNPUBLISHED OPINION
Relator Jean A. Micheln challenges the commissioner's representative's decision, which held that Micheln was disqualified from receiving reemployment compensation benefits because she was terminated from employment for misconduct. The commissioner's representative concluded that Micheln, who had served as a business manager for respondent Video Update, Inc., failed to follow her employer's policies and procedures regarding deposits and various computer financial transactions. On appeal, Micheln asserts that (a) the commissioner's representative's findings contradict the reemployment compensation judge's findings, (b) the findings of fact are not supported by the record, and (c) when she requested copies of all evidence and appeal information, she did not receive a copy of an exhibit she introduced at the hearing and did not receive a copy of the employer's appeal to the commissioner. We affirm.
DECISION I.
Micheln is seemingly asserting, in part, that the commissioner's representative's decision should be reversed because the representative's findings contradict the reemployment compensation judge's findings.
The commissioner's representative reviews the reemployment compensation judge's findings and decision de novo. Minn. Stat. § 268.105, subd. 2(c) (Supp. 1999) (stating commissioner shall examine evidence and make findings and decision independent of reemployment compensation judge's findings and decision). The fact that the commissioner's representative's findings contradict the reemployment compensation judge's findings is of no consequence to this court's review of the commissioner's representative's findings. Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996) (stating "appellate court reviews the findings of the commissioner or the commissioner's representative, not those of the [reemployment compensation judge], even though those findings might involve witness credibility" (quotation omitted)).
II.
Micheln further contends that the record does not support the commissioner's representative's findings of fact. Appellate courts review the commissioner's representative's findings in the light most favorable to the decision and will uphold those findings if the record reasonably supports them. Id.
The first finding relates to the dates of Micheln's employment and her salary. The record supports the majority of this information. Although the commissioner's representative found that Micheln made $25,000, and the hearing testimony indicated she made $24,000, this finding does not affect Micheln's entitlement to benefits.
The second finding describes the management training Micheln received and states that Micheln received one month of training despite her belief that she would receive two months of training. The only record evidence regarding the length of Micheln's training is Micheln's testimony that she participated in a manager-training program for one to two weeks and was then assigned to a store where the outgoing manager worked with her for another one to two weeks. Thus, Micheln's own testimony supports the finding that she received one month of training.
The third finding states that Micheln understood that she was supposed to make deposits every Monday, Wednesday, and Friday but frequently failed to do so. The representative also found that although Micheln attended a meeting in May 1999 where managers were told that they should make daily deposits, she did not understand this requirement and frequently failed to make deposits even three days a week.
There is record evidence supporting the commissioner's representative's finding that Micheln did not follow Video Update's policy for making deposits. Irene Sczublewski, a district manager, testified that deposits were supposed to be made three days a week but testified that money remained in the store Micheln managed for four to seven days. She further testified that in May 1999, the regional manager announced a plan requiring daily deposits. Micheln conceded that she understood that company policy required her to make deposits on Monday, Wednesday, and Friday, but she also testified that a previous district manager had informed the business managers that deposits could be made at the business managers' convenience. She provided no support for this statement other than her own testimony, which the representative was not required to accept as credible. See Dean v. Allied Aviation Fueling Co., 381 N.W.2d 80, 83 (Minn.App. 1986) (recognizing credibility determinations lie within commissioner's representative's discretion).
The fourth finding states that after Video Update moved Micheln to a new store, she returned to her former store and, without authorization from the new manager or Video Update, entered information into the store's computer indicating the sale of 20 videotapes for $0. Sczublewski testified to these facts, and Video Update submitted documentary evidence indicating that Micheln made these transactions. Further, Micheln did not deny that she made these transactions after being transferred to a new store, nor did she deny that she did so without informing the new manager. Thus, the record supports this finding.
The fifth finding states that at various other times Micheln entered transactions showing that games, videotapes, and other items were sold for $0 and cash credits were given out in violation of store policy, which resulted in cash shortages. Again, testimony and documentary evidence supports these findings, and Micheln did not deny these actions. Thus, the record supports the fifth finding.
In his sixth and final finding, the commissioner's representative found that (a) Micheln gave Video Update an unsatisfactory explanation of her conduct and (b) although Micheln had a policy handbook, she frequently made transactions without consulting the handbook or asking a supervisor for directions. Micheln testified that she made the transactions in question in an effort to fix mistakes by employees and to correct problems with inventory. Additionally, she testified that other district managers and business managers had told her to correct mistakes in this manner. Absent testimony from these other district managers or business managers, Micheln's assertions were only her word against the word of Sczublewski, who insisted Micheln's actions violated the company's policies and procedures. See Arnolds Supply Kleenit Co. v. Vang, 410 N.W.2d 37, 39 (Minn.App. 1987) (stating commissioner's representative's credibility determinations must be given deference on appeal). Thus, the record supports this finding as well.
III.
Although Micheln does not specifically state that she is challenging the commissioner's representative's conclusion that she was terminated for misconduct, we also address whether Micheln's actions constituted benefits-disqualifying misconduct as a matter of law because that was the basis of the decision. See Monyoro v. Marriott Corp ., 403 N.W.2d 325, 328 (Minn.App. 1987) (stating after facts established, whether employee's behavior constituted misconduct is question of law reviewed de novo on appeal).
Misconduct disqualifying an employee from receiving reemployment benefits includes
(1) any intentional conduct, on the job or off the job, that disregards the standards of behavior that an employer has the right to expect of the employee or disregards the employee's duties and obligations to the employer; or
(2) negligent or indifferent conduct, on the job or off the job, that demonstrates a substantial lack of concern for the employment.
Minn. Stat. § 268.095, subd. 6(a) (Supp. 1999). "Inefficiency, inadvertence, simple unsatisfactory conduct, poor performance because of inability or incapacity, or absence because of illness or injury with proper notice to the employer" does not constitute such employment misconduct. Id., subd. 6(b) (Supp. 1999).
The commissioner's representative concluded that Micheln displayed intentional conduct that demonstrated a disregard for Video Update's interest and a disregard for the standards of behavior Video Update had a right to expect of her. The representative further concluded that "at the very least," Micheln engaged in negligent conduct that demonstrated a substantial lack of concern for her employment.
"The employer has the right to expect scrupulous adherence to procedure by employees handling the employer's money." McDonald v. PDQ, 341 N.W.2d 892, 893 (Minn.App. 1984). This rule does not imply mistrust of employees; instead, it demonstrates the need for careful management of a retail outlet's assets. Absent such a rule, a retail business would be almost impossible to maintain.
As she asserts, Micheln may have entered sales for $0 and issued cash credits in an honest attempt to correct mistakes. Cf. Tuckerman Optical Corp. v. Thoeny, 407 N.W.2d 491, 494 (Minn.App. 1987) (upholding representative's decision awarding benefits where employee did not knowingly violate employer's policies). The commissioner's representative's findings indicate, however, that Micheln must have known that these actions violated Video Update's policies. Further, she repeatedly failed to follow the company's policy requiring deposits at least three times a week. The commissioner's representative found that Micheln was aware of this policy, and the evidence supports this finding. Micheln's actions displayed disregard for her duties and obligations to her employer. See Gilkeson v. Industrial Parts Serv., Inc., 383 N.W.2d 448, 452 (Minn.App. 1986) (upholding disqualification from benefits where employee "demonstrated a substantial disregard of his employer's interests by his pattern of failing to follow policies and procedures and ignoring directions and requests"); McDonald, 341 N.W.2d at 893 (affirming disqualification from benefits where employee's violation of policy requiring cashiers to ring up purchases immediately showed substantial disregard for employer's interests and duties and for obligations to employer). Therefore, on this record, we conclude that Micheln's conduct constituted benefits-disqualifying misconduct as a matter of law.
IV.
Finally, Micheln notes that when she requested a copy of the Department of Economic Security's file, she did not receive a copy of an exhibit she submitted at the hearing and did not receive a copy of Video Update's argument on appeal to the commissioner's representative.
After this court issues a writ of certiorari on an applicant's petition, the commissioner must provide the applicant a transcript of any recorded testimony and, if requested, must provide the applicant copies of all exhibits admitted into evidence. Minn. Stat. § 268.105, subd. 7(c) (Supp. 1999). The exhibit that Micheln asserts was not contained in the copies she received from the department was admitted at the hearing and is contained in the department's file. Thus, the department was required to provide Micheln a copy. Even assuming Micheln did not receive a copy, however, she was not prejudiced because this was her own exhibit.
The department is not mandated by statute to provide Micheln a copy of Video Update's appeal to the commissioner. Additionally, Video Update's appeal to the commissioner contained no new information and stated only that Video Update did not agree with the reemployment compensation judge's decision and appealed it. Therefore, we perceive no prejudice to Micheln because she did not receive a copy of Video Update's appeal to the commissioner.