This opinion will be unpublished and

may not be cited except as provided by

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






Pamela J. Critzer,





Annie’s Restaurants LLC,



Commissioner of Employment and Economic Development,



Filed December 28, 2004


Huspeni, Judge*


Department of Employment and Economic Development

File No. 13348-03


Pamela J. Critzer, 3075 Mississippi Street, New Brighton, MN 55112 (pro se relator)


Joseph George Schmitt, Halleland Lewis Nilan Sipkins & Johnson, 220 South 6th Street, Suite 600, Minneapolis, MN 55402 (for respondent Annie’s Restaurants LLC)


Lee B. Nelson, Linda A. Holmes, Department of Employment and Economic Development, E200 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101 (for respondent commissioner)



            Considered and decided by Toussaint, Chief Judge; Huspeni, Judge; and Crippen, Judge.*

U N P U B L I S H E D  O P I N I O N




            On certiorari appeal, relator challenges the decision of the commissioner’s representative that she was discharged for employment misconduct and is, therefore, disqualified from receiving unemployment benefits.  Because we conclude that the commissioner’s representative’s findings of fact have reasonable evidentiary support and that those findings support his conclusion that relator was discharged for employment misconduct, we affirm.    


Relator Pamela Critzer began working as a part-time server for respondent Annie’s Restaurants L.L.C. in March 2002.  On June 24, 2003, relator worked at a wine party hosted by the employer.  Shortly before the party began, the employees were notified that a new policy would be in effect that evening, whereby servers would be paid a flat rate and all gratuities would be kept by the employer.  This upset the servers, including relator, who believed the policy was unfair.  Several employees heard relator comment that they should “just drink their wine and steal their food” to make up for the underpayment of gratuities.  Later in the evening after the party, two employees noticed relator and another server going in and out of the chef’s office during their shift.  The chef later found two Styrofoam cups containing red wine in the office, which appeared to have been drunk from. 

Following the June 24 party, several employees expressed concern that relator was instigating problems by complaining about the gratuity issue.  Consequently, Roy Dodds, the employer’s vice-president, conducted an investigation.  During the course of that investigation, Dodds learned that relator and another employee had consumed alcohol during their shift on June 24.  The employer’s policy prohibits employees from consuming alcohol on duty, unless it is distributed during the course of a wine-tasting event under the supervision of Dodds or his partner, Ann Peterson.  Dodds testified that in the past, wine-tastings have always taken place in the bar area, after clean-up was completed, and in the presence of management. 

Relator was terminated on July 9, 2003, for “theft and consuming alcohol while on duty” in violation of the employer’s policy.  Relator subsequently established a benefit account with the Department of Employment and Economic Development.  The department initially determined that relator was not disqualified from receiving unemployment benefits, and the employer appealed.  Following a hearing, an unemployment law judge reversed, concluding that relator was discharged for misconduct and was disqualified from receiving unemployment benefits.  Relator appealed, but the commissioner’s representative affirmed.  This certiorari appeal follows. 


On certiorari appeal, we accord particular deference to the decision of the commissioner’s representative.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  Whether an employee committed a specific act of misconduct is a question of fact.  Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  We review the commissioner’s representative’s factual findings in the light most favorable to the decision, and we will not disturb those findings if the record reasonably tends to sustain them.  Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996).  Further, this court defers to the commissioner’s representative’s ability to weigh conflicting evidence and to make credibility determinations about proffered testimony.  Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995); see also Jenson v. Dep’t of Econ. Sec., 617 N.W.2d 627, 631 (Minn. App. 2000), review denied (Minn. Dec. 20, 2000).  But whether an employee’s acts constitute misconduct is a question of law, which we review de novo.  Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).

An employee discharged for misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4(1) (2002).  Under the 2002 version of the statute, which is applicable here,[1] employment misconduct means:

(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) (2002). 

A two-prong test is used to determine whether an employee’s actions constitute employment misconduct within the meaning of Minn. Stat. § 268.095, subd. 6(a).  Houston v. Int’l Data Transfer Corp., 645 N.W.2d 144, 149 (Minn. 2002).  The employee’s conduct must “(1) be intentional and (2) disregard standards of behavior the employer has a right to expect or the employee’s duties and obligations to the employer.”  Id.  The first prong requires conduct that is “deliberate” and not “accidental.”  Id.  The second prong requires an analysis of the employee’s intent that is “separate and distinct” from the intentional conduct required in the first prong.  Id. at 150.  Thus, the test requires both the intent to achieve the act in question and the intent to disregard certain standards or duties.  See id.

Here, the commissioner’s representative found that relator “intentionally took and drank the wine in retaliation for the employer’s change in policy, which she perceived as unfair.”  The record supports this finding.  Relator admitted that in an effort to cheer up a fellow employee, she joked that they should “just drink their wine and steal their food” to make up for the underpayment of gratuities.  Furthermore, relator admitted that she and at least three other servers tasted wine from several partial bottles in the chef’s office during the “clean-up” phase of their shift.  Therefore, because the record shows that relator’s conduct was intentional, the first prong of the Houston test is satisfied.   

Furthermore, the record shows that relator intentionally disregarded the standards of behavior her employer had a right to expect.  “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); see also McGowan v. Executive Express Transp. Enters., Inc., 420 N.W.2d 592, 596 (Minn. 1988).  Roy Dodds, the vice-president of the company, testified that a policy specifically prohibits employees from consuming alcohol on duty, unless it is distributed during the course of a wine-tasting event under Dodds’ or his partner’s supervision.  When asked about this policy, relator stated:

It’s never been stated or written to my knowledge.  Obviously, I think it’s just common sense that you don’t drink on the job.  There were us servers cleaning up, as we have in the past, where if there’s a little bit left over, we try it.  As I stated in my letter, was it inappropriate, yes.  Have I stated that to Roy in our conversations, absolutely.  I’m here to take accountability for what . . . was inappropriate behavior, but whether it’s stated or not, it’s wrong. 


Relator further admitted that the inappropriate conduct was specifically “drinking without letting Roy know.”  Therefore, the second prong of the Houston test is also satisfied.

Despite our determination that both prongs of the Houston test have been satisfied, we are not insensitive to the arguments made by relator before this court.  Relator urges that she was terminated for reasons other than the wine-drinking incident, and cites as support for that argument the fact that she was not terminated until several days after that incident, and that others equally involved in the incident were not terminated.  The record reflects, however, that the wine-drinking incident was discovered as a result of an investigation conducted by relator’s employer into complaints being voiced about the controversial tip policy.  Further, relator cites to no authority requiring that all employees must receive identical discipline for improper acts. 

            Relator also argues that her conduct was justified because the employer’s tip policy was illegal and the servers were understandably upset.  See Minn. Stat. § 177.24, subd. 3 (2002) (stating that gratuities belong to the employee, not the employer).  But as the commissioner’s representative recognized, while the tip policy may have given relator a good reason to quit, it did not justify her decision to “remain employed and commit misconduct.”  Furthermore, relator’s acts of insubordination in complaining about the tip policy are irrelevant, as we agree that relator was terminated for violating the drinking policy, not for insubordination.  Likewise, relator’s claims that she did not bring the wine back to the office and that she was not drunk are also irrelevant, as the employer demonstrated that drinking on duty without permission, regardless of the amount, violated its policy.

Regarding relator’s complaint that the decision to grant benefits was “altered” upon appeal to the unemployment law judge (ULJ), that complaint not only fails to identify any irregularity in that procedure, but we note that in cases far too numerous to cite, an initial determination of qualification for benefits is reversed upon appeal to the ULJ or to the commissioner’s representative.  Relator’s challenge to Dodds’ version of the events also fails, as we defer to the commissioner’s representative’s credibility determinations.  See Jenson, 617 N.W.2d at 631.  In sum, we have carefully considered the arguments made by relator on appeal and find that they are without merit.   

Because the evidence establishes that relator was aware of the employer’s policy and intentionally disregarded it, we conclude that she committed employment misconduct and is, therefore, disqualified from receiving unemployment benefits.     


*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10. 

[1] This court has recognized that the law in effect at the time of discharge is to be applied in determining an employee’s eligibility for unemployment benefits.  Brown v. Nat’l Am. Univ., 686 N.W.2d 329, 332 (Minn. App. 2004), review denied (Minn. Nov. 16, 2004); Bray v. Dogs & Cats Ltd. (1997), 679 N.W.2d 182, 186 (Minn. App. 2004).