This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
IN COURT OF APPEALS
LeVonne M. Erickson,
Commissioner of Economic Security,
Department of Economic Security
Agency File No. 190799
LeVonne M. Erickson, 9143 Nicollet Avenue South, Bloomington, MN 55420 (pro se relator)
Decathlon Hotel, 1700 East 79th Street, Bloomington, MN 55425 (respondent)
Kent E. Todd, 390 North Robert Street, St. Paul, MN 55101 (for respondent commissioner)
Considered and decided by Toussaint, Chief Judge, Peterson, Judge, and Huspeni, Judge.
U N P U B L I S H E D O P I N I O N
Relator LeVonne M. Erickson appeals from a determination by the commissioner’s representative that she was discharged for misconduct and thus disqualified from receiving reemployment insurance benefits. Because we see no error in the commissioner’s representative’s conclusion that Erickson was discharged for misconduct, we affirm.
Relator LeVonne M. Erickson worked as a waitperson for respondent Decathlon Hotel. Customers are charged an 18% service fee, which includes a 14% service charge that goes to the waitperson, in place of tipping. When waitstaff ring in a bill on the cash register, they must include their server number on the bill in order to receive the service charge for that bill.
The Decathlon chef would occasionally prepare free samples of meals and desserts for the waitstaff or for potential banquet customers to eat. Waitstaff were to ring in all free samples, but under a designation of “house server number 1” rather than under their own server number. By ringing in the free samples in this fashion, they would be recorded for accounting purposes while the server would not be given a service charge for the free samples. A memo setting forth this policy was posted in 1997, and the kitchen manager testified that she had “gone over” the memo with the employees in February or March 1997. (Relator had been employed at Decathlon since early 1994.)
On August 2, 1999, Erickson entered the cost of three samples on the cash register, but used her own server number rather than the required “house server number 1.” On August 3, 1999, while auditing the daily receipts from the previous day, the manager realized that Erickson had rung up the samples under her own server number. The manager also realized that Erickson had not charged her daughters and a friend for meals they had consumed at Decathlon Hotel. When these issues were brought to Erickson’s attention, she replied that she was unaware of the “house server number,” and had always used her server number when ringing up free samples. She did admit to failing to charge her daughters and their friend for their food, and she agreed she was wrong to do this. Respondent discharged Erickson on August 3, 1999.
Erickson’s application for reemployment insurance benefits was denied on the basis that she had been discharged for misconduct. On appeal, a reemployment insurance judge concluded that Erickson had been discharged for reasons other than misconduct, and that she was, therefore, qualified to receive reemployment insurance benefits. This determination was reversed on appeal to the Commissioner of Economic Security.
On appeal from the denial of reemployment insurance benefits, this court will review the decision of the commissioner’s representative, not the decision of the reemployment insurance judge. Fujan v. Ruffridge-Johnson Equip., 535 N.W.2d 393, 395 (Minn. App. 1995). Whether an employee committed disqualifying misconduct is a mixed question of fact and law. Isse v. Alamo Rent-A-Car, 590 N.W.2d 137, 139 (Minn. App. 1999), review denied (Minn. Apr. 20, 1999). However, in reemployment insurance cases, the ultimate issue of disqualification is a question of law, which this court will review de novo. Kalberg v. Park & Recreation Bd. of Minneapolis, 563 N.W.2d 275, 276 (Minn. App. 1997).
The commissioner’s representative’s factual determinations are viewed in the light most favorable to the decision and are not disturbed if evidence in the record reasonably tends to sustain them. White v. Metropolitan Med. Ctr., 332 N.W.2d 25, 26 (Minn. 1983).
The commissioner’s representative found that the relator “either knew or should have known that it was improper for her to accept a gratuity on kitchen samples.” This finding was based on the testimony of the manager that all employees were aware of and conformed to the memo concerning the use of the house server number for free samples. Although Erickson stated that she did not recall ever seeing the memo or being instructed in the use of the house server number, the commissioner’s representative found the manager’s account more credible.
The commissioner’s representative found as additional disqualifying misconduct Erickson’s behavior in failing to charge her daughters and their friend for their food. Erickson does not deny that she was in error in doing so and that this conduct was inexcusable. This court has held that an employee’s dishonesty that is related to employment may constitute misconduct for reemployment insurance benefits. Baron v. Lens Crafters, Inc., 514 N.W.2d 305, 307-08 (Minn. App. 1994).
The commissioner’s representative’s findings are supported by the evidence in the record and, in turn, support the conclusion that Erickson was discharged for misconduct. Therefore, Erickson is disqualified from receiving reemployment compensation benefits.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.