This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






Jacob Pankey, Jr.,





Rainbow Food Group, Inc.,



Commissioner of Employment and Economic Development,



Filed July 15, 2003


Gordon W. Shumaker, Judge


Department of Employment and Economic Development

File No. 11544 02




Jacob Pankey, Jr., 1443 Edmund Avenue, St. Paul, MN 55104-2408 (relator pro se)


Rainbow Food Group, Inc., Hopkins Location, P.O. Box 3930, Des Moines, IA 50322 (respondent)


Lee B. Nelson, Philip B. Byrne, Mary Katherine Chaffee, Minnesota Department of Employment and Economic Development, 390 North Robert Street, St. Paul, MN 55101 (for respondent commissioner)


            Considered and decided by Shumaker, Presiding Judge, Anderson, Judge, and Halbrooks, Judge.


U N P U B L I S H E D  O P I N I O N


            Appellant challenges the Department of Employment and Economic Development’s finding that he committed employment misconduct when he ate prepared deli food prior to paying for it, which violated his employer’s policy.  Because the commissioner’s representative properly found that appellant committed employment misconduct, we affirm.


            Appellant Jacob Pankey, Jr. worked at respondent Rainbow Food Group, Inc. (Rainbow) as a security guard.  On May 30, 2002, Pankey obtained chicken from the Rainbow deli and ate it before paying for it.  A deli employee reported this to her manager.  Rainbow has a policy that requires its employees to pay for prepared deli food prior to eating it.  The manager contacted a loss-prevention investigator.  The investigator first spoke with the deli employee and then spoke with Pankey.  At first, Pankey denied that he had ever taken or eaten anything from Rainbow without paying for it.  Then after the investigator told Pankey that he had spoken with the deli employee, Pankey changed his story and stated that he and the deli employee had made a deal that he would pay for his food after he received his paycheck later that night.  The deli employee denied making any such deal with Pankey.

            Rainbow terminated Pankey the next day.  Pankey applied for unemployment compensation benefits from the Minnesota Department of Employment and Economic Development (DEED).  DEED denied him benefits because he was terminated for employment misconduct.  Pankey appealed DEED’s determination to the unemployment law judge (ULJ) who affirmed DEED.  On appeal, the commissioner’s representative affirmed the ULJ’s decision based on the finding that Pankey ate deli food prior to paying for it, that Pankey knew this was against Rainbow’s policy, and that Pankey’s conduct showed his intent to disregard a standard of behavior that Rainbow had a right to expect.  Pankey petitioned this court for certiorari review.


            We review the commissioner’s representative’s findings, not the ULJ’s findings.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  Current law places no burden of proof on either party.  Minn. Stat. § 268.105, subd. 1(b) (2002).  The ULJ is required to fully develop the record.  Minn. R. 3310.2921 (2001).  The commissioner’s representative on further appeal is required to evaluate the record based on evidence submitted at the hearing before the ULJ.  Minn. Stat. § 268.105, subd. 2(c) (2002).

            On appeal this court’s

narrow standard of review requires that findings [of fact] be viewed in the light most favorable to the decision, and if there is evidence reasonably tending to sustain them, they will not be disturbed.


White v. Metro. Med. Ctr., 332 N.W.2d 25, 26 (Minn. 1983).  The commissioner’s representative’s findings are a mixed question of law and fact.  Colburn v. Pine Portage Madden Bros., Inc., 346 N.W.2d 159, 161 (Minn. 1984).  The commissioner’s representative determines “[w]hether an employee committed the specific act or acts alleged to be misconduct,” which is a fact question.  Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997). 

“When the parties have presented conflicting evidence on the record, this court must defer to the Commissioner’s ability to weigh the evidence; we may not weigh that evidence on review.”


Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995) (citation omitted). 

But this court has de novo review to determine whether Pankey's actions as a matter of law constitute employment misconduct, thus disqualifying him from receiving unemployment benefits under Minn. Stat. § 268.095 (2002).  Ress v. Abbott N.W. Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).  This court does not determine whether Pankey should have been terminated, but rather whether he should be denied unemployment compensation benefits.  See Hansen v. C.W. Mears, Inc., 486 N.W.2d 776, 780 (Minn. App. 1992) (stating issue to be whether the employee committed misconduct), review denied (Minn. July 16, 1992). 

The commissioner’s representative’s finding that Pankey ate prepared deli food while on duty without first paying for the food is reasonably supported by the record.  Pankey does not dispute that he ate the chicken prior to paying for it.  Pankey instead disputes that he knew about Rainbow’s policy that required him to pay for his food prior to eating it.  The commissioner’s representative found that “Rainbow has a policy, about which Pankey was aware, requiring that employees pay for prepared deli food before consuming it.”  During the hearing Pankey testified numerous times that he was not aware of this policy.  However, Pankey also made statements that showed his knowledge of this policy, such as when he said, “I know you got to pay for it when you get food, I do know that.”  Because Pankey made contradictory statements regarding his knowledge of the policy, the commissioner’s representative had to make a credibility determination.  The commissioner’s representative found that Pankey’s statements that he was unaware of Rainbow’s policy were not credible, and we will not disturb this credibility determination.  See Whitehead, 529 N.W.2d at 352 (noting deference given to commissioner’s ability to weigh conflicting evidence).

The commissioner’s representative also did not err as a matter of law when he found under Minn. Stat. § 268.095 that Pankey’s actions constituted employment misconduct.  Under Minnesota law, an employee is disqualified from receiving unemployment benefits if he/she was discharged for employment misconduct.  Minn. Stat. § 268.095, subd. 4(1).

The commissioner’s representative found that Pankey was discharged for employment misconduct under Minn. Stat. § 269.095, subd. 6(a)(1), which defines employment misconduct as

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.


However, employment misconduct does not include

[i]nefficiency, inadvertence, simple unsatisfactory conduct, poor performance because of inability or incapacity, or absence because of illness or injury with proper notice to the employer.

Minn. Stat. § 268.095, subd. 6(b).


The supreme court has recently defined conduct that is intentional to be “deliberate” and “not accidental.”  Houston v. Int’l Data Transfer Corp., 645 N.W.2d 144, 149 (Minn. 2002) (citation omitted).  Pankey’s conduct meets this first element of employment misconduct because he deliberately ate the chicken, even though he knew he did not have money to pay for the chicken at the time. 

The second-prong of the employment misconduct definition is that

the employee * * * engaged in conduct that evinced an intent to[] ignore or pay no attention to his or her duties and obligations or the standards of behavior the employer has a right to expect.


Id. at 150.  Pankey argues that his conduct did not result in employment misconduct because the deli employee had agreed to give him the chicken, he intended to pay for this food as soon as he received his paycheck, and the deli employee was not terminated for participating in this agreement.  The commissioner’s representative determined that Pankey committed employment misconduct because

Rainbow Foods had a right to expect that Pankey would abide by its reasonable policy requiring employees to pay for food prior to consuming it.  A preponderance of the available evidence shows that Pankey chose to eat prepared deli food before purchasing it.  His doing so shows his intention to disregard a standard of behavior that his employer had a right to expect.


The supreme court has held that knowingly failing to follow an employer’s policy results in misconduct. “As a general rule, refusing to abide by an employer’s reasonable policies and requests amounts to disqualifying misconduct.”  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002) (citation omitted).  Rainbow’s policy is reasonable since it provides Rainbow with a means to make sure that its numerous employees pay for the food that they eat while at work.  And as we stated above, Pankey’s testimony and actions prove that he knew about Rainbow’s policy that required him to pay for his food prior to eating it.  Thus, we conclude that his intentional conduct violated a standard of behavior the employer had a right to expect.