This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).







Cheryl A. Sebunia,





Target-Virginia #847,



Commissioner of Economic Security,




Filed November 21, 2000


Halbrooks, Judge


Department of Economic Security

File No. 288099



Cheryl A. Sebunia, PO Box 893, Gilbert, MN 55741 (pro se relator)


Target-Virginia #847, Dayton Hudson Corporation c/o The Frick Company, PO Box 283, St. Louis, MO 63166-0283 (respondent)


Kent E. Todd, Department of Economic Security, 390 North Robert Street, St. Paul, MN 55101 (for respondent commissioner)




            Considered and decided by Halbrooks, Presiding Judge, Randall, Judge, and Harten, Judge.

U N P U B L I S H E D   O P I N I O N


Relator Cheryl A. Sebunia appeals the commissioner’s decision that she was discharged for misconduct and is ineligible for reemployment benefits.  Because the evidence in the record reasonably supports the commissioner’s decision, we affirm.


Respondent Target employed relator from June 14, 1993, until September 6, 1999.  Relator was hired as a cashier in 1993; in the summer of 1998, she began working in respondent’s cafeteria.  On June 9, 1999, respondent began an internal investigation of relator after a co-worker reported that relator was not paying for meals taken from the cafeteria.  Respondent’s policy prohibits employees from giving, receiving, or consuming food or beverages without paying for them and defines such behavior as theft and grounds for termination.  During three months of video surveillance, respondent observed relator paying for one size soda while taking another, improperly substituting food items, and eating food that should have been thrown away pursuant to store policy.

On September 6, 1999, management confronted relator about her conduct.  Relator signed two written statements in which she admitted taking food.  Relator was emotional at the meeting and stated she felt pressured to write the statements.  Respondent discharged relator on the grounds of theft and failure to follow company policies. 

Relator filed a claim for reemployment compensation benefits with the Minnesota Department of Economic Security.[1]  A department claims representative denied her claim, determining relator was discharged for misconduct.  Relator appealed.  Following a telephone evidentiary hearing, a reemployment compensation judge concluded that relator was not discharged for misconduct and reversed the denial of benefits.  Respondent appealed to the Commissioner of Economic Security.  The commissioner’s representative reversed the reemployment compensation judge’s decision, again denying benefits.  Relator filed this certiorari appeal, seeking review of the commissioner’s representative’s decision. 


On appeal, this court reviews the decision of the commissioner’s representative, not the decision of the reemployment compensation judge.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  Whether an employee committed disqualifying misconduct is a mixed question of fact and law.  Colburn v. Pine Portage Madden Bros., 346 N.W.2d 159, 161 (Minn. 1984).  The determination whether the employee committed a particular act or acts is a question of fact.  Scheunemann v. Radisson South Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  Whether the acts constitute misconduct is a question of law on which this court is “free to exercise its independent judgment.”  Ress v. Abbott NW Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).

1.         Findings of Fact

The commissioner’s representative’s fact-findings must be viewed in the light most favorable to the decision and will be sustained on appeal if there is evidence reasonably supporting them.  McGowan v. Executive Express Transp. Enters., 420 N.W.2d 592, 594 (Minn. 1988).  In her signed statements and at the evidentiary hearing, relator admitted taking food items without paying for them.  The evidence in the record reasonably supports the commissioner’s representative’s finding that relator committed the acts alleged to be misconduct.

2.         Misconduct

An employee who is discharged from employment for “employment misconduct” is disqualified from receiving reemployment compensation benefits.  Minn. Stat. § 268.095, subd. 4(1) (Supp. 1999).  The issue in this appeal is not whether relator’s termination was fair, but whether, now that she is unemployed, she should be denied unemployment compensation benefits as well.  Fujan v. Fuffridge-Johnson Equip., 535 N.W.2d 393, 395 (Minn. App. 1995). 

            Minnesota law defines “employment misconduct” as

(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).  In addition, “misconduct” has been defined as

conduct evincing such willful or wanton disregard of an employer’s interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee * * * or to show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his employer.


Tilseth, 295 Minn. at 374‑75, 204 N.W.2d. at 646 (quotation omitted).

            To establish whether an employee has committed conduct warranting the loss of benefits, this court considers:

(1) whether an employee deliberately violated standards of behavior which the employer has a right to expect of its employee, (2) whether an employee’s conduct adversely affected the business or other employee’s morale, and (3) whether an employee ignored past warnings.


Ress, 448 N.W.2d at 524 (citing Auger v. Gillette Co., 303 N.W.2d 255, 257 (Minn. 1981)).  Determining what is disqualifying conduct is “primarily a fact-based inquiry.”  Id.

By adding “extras” to her meals, paying for one item and then taking another, or failing to pay for her meals, relator intentionally disregarded her employer’s policies.  Her conduct demonstrated a disregard for her employer’s interests and fell below the level of behavior an employer has the right to expect.  This court has held that theft from an employer constitutes disqualifying conduct.  See, e.g., Dawson v. Northland Beverages, Inc., 347 N.W.2d 287, 288-89 (Minn. App. 1984) (route driver committed misconduct when, on three occasions, he collected more money than his invoices showed and could not explain how the overages occurred); Manos v. First Bank Minnehaha, 357 N.W.2d 372, 375‑76 (Minn. App. 1984) (employee committed gross misconduct when she failed to report large overpayments that employer had made on her paychecks).  Moreover, relator’s conduct affected the morale of another employee.  Respondent began its investigation after a co-worker reported relator’s improper behavior.

Relator argues that she signed the statements of September 6, 1999, because she was emotional and trying to keep her job.  The commissioner’s representative acknowledged that relator may have felt pressure during the interview, but that

the overall record shows that the applicant engaged in intentional conduct showing a disregard of standards of behavior which the employer had a right to expect of its employees and of the duties and obligations owed to that employer.


On appeal, relator admits there were two meals that she did not pay for, but argues that there were extenuating circumstances.  But it is not the job of this court to judge the fairness of relator’s termination.  Whether or not relator’s conduct was intentional, it exemplifies negligence toward employer policies and “demonstrates a substantial lack of concern for the employment.”  Minn. Stat. § 268.095, subd. 6(a)(2) (Supp. 1999). 

Relator argues for the first time on appeal that she has recently been diagnosed with rheumatoid arthritis and that respondent recognized her failing health, “had no place else to put” her, and used her misconduct as a pretense for termination.  A reviewing court generally does not address arguments that were not raised below unless it determines that the interest of justice so requires.  Petterssen v. Commissioner of Employment Servs., 306 Minn. 542, 544-45, 236 N.W.2d 168, 169 (1975).  Here, there is no evidence in the record that respondent was aware of relator’s health problems.   


[1]  Effective April 7, 2000, the legislature changed the program name from reemployment compensation to unemployment insurance and redesignated reemployment compensation benefits as unemployment benefits and reemployment compensation judges as unemployment law judges.  2000 Minn. Laws ch. 343.  Because this case originated before the effective date of the amendments, the previous terminology will be used in this case.