This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
Paul M. Schildman,
Northwest Airlines, Inc.,
Commissioner of Economic Security,
Filed May 15, 2001
Department of Economic Security
File No. 435300
Thomas M. Brudvig, 854 East River Road, Anoka, MN 55303 (for relator)
Northwest Airlines, Inc., Minneapolis Airport & Foreign Countries, c/o The Frick Co., P.O. Box 283, St. Louis, MO 63166 (respondent)
Kent E. Todd, Minnesota Department of Economic Security, 390 North Robert Street, St. Paul, MN 55101 (for respondent Commissioner)
Considered and decided by Amundson, Presiding Judge, Klaphake, Judge, and Willis, Judge.
U N P U B L I S H E D O P I N I O N
Relator challenges a determination by the commissioner’s representative that he is disqualified from receiving unemployment benefits because of misconduct. Because we conclude that the evidence reasonably supports the commissioner’s representative’s determination that relator was discharged for misconduct, we affirm.
In March 2000, relator Paul M. Schildman was discharged from his employment with respondent Northwest Airlines (“Northwest”) for theft. He had worked for Northwest as a customer service agent for approximately five years and lived with Heidi Hungerford, another Northwest employee.
As Northwest employees, Schildman and Hungerford were each entitled to 16 “companion passes” per year. When a pass was used, its value was deducted from the paycheck of the employee who used it. Schildman and Hungerford keep their passes together in a drawer at their apartment. In March 2000, Schildman and Hungerford gave a pass to a friend to fly from Minneapolis to San Francisco. After the flight had left Minneapolis, Schildman claims that he went to the outbound gate because he wanted to know whether the friend had used one of Schildman’s passes or one of Hungerford’s passes. It was Northwest’s procedure to have the gate agent on duty take the “ticket lift,” an envelope containing the tickets and the companion passes from that gate, to the break room after his or her shift and deposit it into a container, to be collected at the end of the day. Schildman asked the gate agent on duty if he could take the ticket lift to the break room for her.
Schildman alleges that he was in a hurry to catch a bus to the employee parking lot, so he took the companion pass that he and Hungerford had given their friend out of the ticket lift, put it in his jacket pocket, and deposited the ticket lift in the container in the break room. He then left the premises without either notifying a supervisor that he had the pass or requesting permission to take it with him. Because it is Northwest’s policy that its property not be removed without permission, Schildman was discharged.
The Department of Economic Security determined that Schildman was disqualified from receiving unemployment benefits because his behavior constituted employee misconduct. Schildman appealed, and an unemployment-law judge reversed the department’s decision. The commissioner’s representative reversed the unemployment-law judge, concluding that Schildman was discharged for employee misconduct. Schildman appeals to this court by writ of certiorari.
Appellate review in economic-security cases is narrow. McGowan v. Executive Express Transp. Enters. Inc., 420 N.W.2d 592, 594 (Minn. 1988). When reviewing a determination of the commissioner’s representative, appellate courts must consider whether there is reasonable support in the evidence to sustain it. Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995); see also Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996) (explaining that reviewing courts will not disturb the findings of the commissioner’s representative when, viewed in the light most favorable to the decision, the evidence reasonably supports the findings).
An individual who is discharged for misconduct is disqualified from receiving unemployment benefits. Minn. Stat. § 268.095, subd. 4(1) (2000). Whether an employee has engaged in disqualifying misconduct is a mixed question of fact and law. McCourtney v. Imprimis Tech., Inc., 465 N.W.2d 721, 724 (Minn. App. 1991). The determination whether the employee committed a particular act is a question of fact. Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997) (citing Tilseth v. Midwest Lumber Co., 295 Minn. 372, 375, 204 N.W.2d 644, 645-46 (1973)). But whether an act constitutes misconduct is a question of law on which appellate courts are “free to exercise [their] independent judgment.” Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989) (citations omitted).
Misconduct disqualifying an employee from receiving unemployment 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) (2000).
Schildman maintains that leaving his work premises with the pass was an “inadvertent” mistake. Inadvertence is not employment misconduct. Id., subd. 6(b) (2000). During testimony before the unemployment-law judge, Schildman explained that he took the pass with him, rather than view it on the premises, because he did not want to miss the bus to the employee parking lot. He also explained that he did not return the pass to Northwest the following day because he had two days off. Before discharging him, Schildman’s supervisor informed him that Northwest believed that he removed the pass from the premises in an attempt to steal from the company because if a companion pass is not in the ticket lift at the end of the day, there is a likelihood that Northwest would not deduct the appropriate amount from the employee’s paycheck.
The commissioner’s representative concluded that Schildman’s “conduct raises the inference of theft or that [he] at least engaged in employment misconduct.” Schildman acknowledged that he knew it was against Northwest’s policy to remove its property from the premises without permission. An employer has a right to expect that its employees will abide by reasonable instructions and directions. McGowan, 420 N.W.2d at 596. Even “[a] single incident where an employee deliberately chooses a course of action adverse to the employer can constitute misconduct.” Ress, 448 N.W.2d at 524 (citation omitted).
The commissioner’s representative found that (1) Schildman took the pass home on March 14, 2000; (2) he neglected to inform Northwest that he had done so; and (3) when he returned to work on March 17, he still had not informed his supervisors that he had taken the pass home.
Schildman’s decision to remove the companion pass from Northwest’s premises showed a disregard for the standards of behavior that Northwest had a right to expect of him. The evidence reasonably supports the commissioner’s representative’s determination.