This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Karrie L. Bies,
Jimmy’s Grille Exceptionale,
Department of Employment and Economic Development,
Department of Employment and Economic Development
File No. 15082 04
Nathan Myrum Hansen,
Linda Alison Holmes, Dept. of Employment and Economic Development, E200 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101-1351
Considered and decided by Toussaint, Chief Judge; Kalitowski, Judge; and Minge, Judge.
U N P U B L I S H E D O P I N I O N
TOUSSAINT, Chief Judge
Relator, a discharged employee, challenges the determination of a senior unemployment review judge (SURJ) that relator is not entitled to benefits because she was discharged for misconduct. Because we see evidence supporting the SURJ’s findings and the conclusion based on those findings is not contrary to the statutes, we affirm.
D E C I S I O N
Relator Karrie Bies applied for unemployment benefits after she was discharged from her job as a server and bartender by respondent Jimmy’s Café Exceptionale. A department adjudicator determined that relator had been discharged for misconduct. Relator appealed and, following a hearing, an unemployment law judge determined that relator had not committed misconduct. Respondent appealed, and a SURJ, after a de novo review, determined that relator had committed misconduct.
Misconduct is defined as “any intentional,
negligent, or indifferent conduct . . . (1) that evinces a serious violation of
the standards of behavior the employer has the right to reasonably expect of
the employee . . . .” Minn. Stat. § 268.095, subd. 6 (a) (Supp.
2003). A determination that an employee is not entitled to
benefits for reasons of misconduct is a mixed question of fact and law. Colburn
The SURJ found that relator was aware of respondent’s policies that “prohibited employees’ family members and friends from disrupting the employee while on duty and employees from making or taking personal, non-emergency telephone calls except when on a rest break.” Respondent’s owner testified that, when relator was hired, she received and signed the company policies, including one policy that family members, spouses, and friends were not to disrupt employees’ work with personal matters and another that employees on duty were not allowed to accept non-emergency phone calls. Thus, the finding is supported by the evidence.
The SURJ found that relator was specifically warned, in writing, about “making and taking personal telephone calls while on duty” and about “allowing personal visits from her family and boyfriend to disrupt her work.” The warning was introduced as an exhibit, so this finding is also supported by the evidence. Moreover, the date on the warning, May 26, 2004, refutes relator’s testimony that she had numerous phone calls only during December 2003 and January 2004 in connection with the sale of her house.
The SURJ further found that “[Relator] received numerous warnings for making and receiving non-emergency telephone calls . . . while she was on duty.” Respondent’s owner testified that she had warned relator “[t]hat unless it was an emergency phone call, she should not be getting phone calls during her work shift,” that relator received “two, three, four, six calls in a shift,” and that relator was “warned probably 20 times in the two years that she was here that her phone calls were an issue.” Relator’s supervisor testified that, “during the week, she was only there three-and-a-half or four hours, and she would get two to three calls in that one shift” and that relator both made and received phone calls while on duty. Again, evidence supports the SURJ’s finding.
An employee who knowingly violates
an employer’s reasonable policy commits misconduct, particularly when the
employee repeatedly violates the same rule despite having been warned.