This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ß 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Cintas Corporation No. 2,
Department of Employment and Economic Development,
Filed April 11, 2006
Department of Employment and Economic Development
File No. 13103 04
Cintas Corporation No. 2, Brooklyn Park Location, C/O TALX Employer Services, LLC, P.O. Box 1160, Columbus, Ohio† 43216-1160 (for respondent Cintas Corporation No. 2)
Holmes, Department of Employment and Economic Development,
††††††††††† Considered and decided by Peterson, Presiding Judge; Klaphake, Judge; and Hudson, Judge.
U N P U B L I S H E D†††† O P I N I O N
In this certiorari appeal from the decision of a senior unemployment review judge that relator is disqualified from receiving unemployment benefits because she was discharged for misconduct, relator argues that (1) the evidence does not support the findings; and (2) the conduct was a single incident that did not have a significant adverse impact on the employer.† We affirm.
Treva A. Pearcy was employed by respondent Cintas Corporation No. 2 as an
accounts-receivable coordinator at its
††††††††††† Relator was also responsible for handling ďunapplied cash,Ē which included overpayments, advance payments, and payments that a customer had not directed to be applied to a specific invoice. †Unapplied cash could not be applied to an invoice without the customerís approval.† When the customerís approval was obtained, Cintasís policy required that the approval be documented in a note entered in the accounts-receivable system.
††††††††††† Relator was eligible for a performance-incentive bonus.† Under the bonus plan, the more invoices an employee cleared, particularly older invoices, the greater the potential bonus.† A high percentage of old, unpaid invoices could significantly reduce the potential bonus.† The amount of unapplied cash held at a location was also used as a performance measurement, which created an incentive for employees to apply cash to invoices.
February 25, 2004, relator posted a $489.92 check from Border Foods.† Border had designated $238.11 to be applied
to an invoice issued by relator and $251.81 to be applied to an invoice issued
purposes of its performance-incentive bonus plan, Cintas evaluated the clearing
of old invoices at the end of May, which was the end of the fiscal quarter.† On May 25, 2004, relator applied the $251.81 that
remained in Borderís account as unapplied cash to 11 open invoices that Border
had at Cintasís
June 28, 2004, relator met with her supervisor, Sarah Grahek, and general manager
Brad Hoag.† Grahek and Hoag told relator
that they had no record of authorization for relator to apply the $251.81 of
Borderís unapplied cash to past-due invoices at the
††††††††††† Relator testified that in April 2004, as part of McConnellís training, Grahek assumed responsibility for unapplied-cash accounts. †McConnell and Grahek contacted customers and entered notes on unapplied-cash reports, but company policy did not permit them to make the actual money transfers.† Relator made the actual transfers based on informal oral instructions from Grahek or McConnell.† Grahekís procedure in April and May 2004 was to call customers with McConnell and request that unapplied cash be applied to the accountís oldest invoices.† As a result, Grahek routinely instructed relator to apply money to the oldest invoices.† Relator was present when Grahek called Border and, after the call, Grahek told relator how to apply the money, and Grahek was going to put into the system the note documenting Borderís approval of the application.† At the June 28, 2004 meeting with Grahek and Hoag, relator gave Hoag an unapplied-cash report indicating that relator was not accountable for unapplied cash and documenting authorization of the Borderís application.† Hoag took the report from relator and failed to produce it at the hearing before the ULJ.
††††††††††† Relator filed a claim for unemployment benefits with respondent Department of Employment and Economic Development.† A department adjudicator determined that relator was discharged from employment for errors not amounting to employment misconduct and, therefore, was not disqualified from receiving unemployment benefits.† Respondent appealed to an unemployment law judge (ULJ).† Following an evidentiary hearing, the ULJ determined that relator was discharged from employment for reasons other than misconduct and affirmed the determination of nondisqualification.† Respondent appealed to a senior unemployment review judge (SURJ).† The SURJ determined that relator was discharged from employment for misconduct and reversed the ULJís decision.† Relator filed this certiorari appeal, seeking review of the SURJís decision.
D E C I S I O N
employee discharged for employment misconduct is disqualified from receiving
unemployment benefits.† Minn. Stat. ß
268.095, subd. 4(1) (Supp. 2003).†
Whether an employee has committed employment misconduct presents a mixed
question of fact and law.† Colburn v.
††††††††††† Minn. Stat. ß 268.095, subd. 6(a) (Supp. 2003), states:
Employment misconduct means any intentional, negligent, or indifferent conduct, on the job or off the job (1) that evinces a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee, or (2) that demonstrates a substantial lack of concern for the employment.
††††††††††† Inefficiency, inadvertence, simple unsatisfactory conduct, a single incident that does not have a significant adverse impact on the employer, conduct an average reasonable employee would have engaged in under the circumstances, poor performance because of inability or incapacity, good faith errors in judgment if judgment was required, or absence because of illness or injury with proper notice to the employer, are not employment misconduct.
that the May 25, 2004 posting of the unapplied cash in Borderís account to
††††††††††† The SURJ specifically found that, ď[o]n May 25, 2004, [relator] applied the $251.81 in unapplied cash in Borderís account to eleven of Borderís invoices which were more than ninety days old.† [Relator] did not receive permission from Border to apply the cash in this way.Ē† The SURJ explained:
††††††††††† Each party provides very different accounts of the events leading to [relatorís] discharge.† [Relator] testified to being told by her supervisor to make the May 25, 2004 transfer and doing as she was told.† [Grahek] testified that she had never told [relator] to make the transfer and that she feels [relator] made the transfer to make her books look better and make it more likely for her to receive a quarterly bonus.† [Relator] testified that she had documentation showing [Grahek] had given her authorization to make the May 25, 2004 transfer.† She testified that she showed this document to Hoag but had the documents taken away.† She provides no explanation why Hoag would not take this document into consideration when making the decision to discharge her.† This documentation was also not subpoenaed to be presented as evidence for the hearing.† We find that [relator] made the decision to make the May 25, 2004 transfer on her own and did not have authorization from either the client or [Grahek].† In addition, we find [Grahekís] testimony that [relator] transferred funds from [an unrelated customer] in order to make up for the missing $251.81 in Border funds to be more convincing than [relatorís] general denial of the incident.
††††††††††† A preponderance of the evidence shows that [relator] knew [respondentís] policies concerning application and transfer of funds.† On February 25, 2004, she made a simple mistake and forgot to apply funds as required.† On May 25, 2004, she intentionally exploited her earlier mistake to make her book of business look better in hopes of receiving a higher quarterly bonus.† On June 6, 2004, she intentionally misappropriated funds to cover up her actions.† Her actions display clearly a serious violation of the standards of behavior an employer has a right to expect of its employees.
††††††††††† Relator argues that even crediting Grahekís testimony,
the evidence shows only that relator made an unauthorized posting and not that
she engaged in any intentional conduct showing intent to disregard job duties
or standards.† But the evidence is
sufficient to support a finding of misconduct.†
Grahek testified that the number of outstanding invoices affected an
employeeís bonus and that the unauthorized May 25, 2004 application of funds to
11 old invoices could potentially have affected relatorís bonus.† The SURJ specifically found with respect to
the June 6, 2004 transfer from the unrelated customerís account to Borderís
Relator argues that the application of funds to the Border account should be held to be a single incident that does not have an adverse impact on the employer and, therefore, is not misconduct.† But under Schmidgall,even a single violation by an employee of an employerís reasonable policy can constitute misconduct.
††††††††††† Relator argues that the evidence was insufficient to show
that the May 25, 2004 transfer could have affected her bonus, and, without such
evidence, the evidence was insufficient to support a finding that the transfer
was motivated by the hope of receiving a higher bonus.† But even if the May 25 transfer was simply a
mistake, the June 6, 2004 transfer of funds from an unrelated customerís
account to Borderís account could be held to be misconduct.† The transfer was made following an inquiry by