This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-2223

 

 

Mark A. Murfield,

Relator,

 

vs.

 

J & L Enterprises, Inc.,

Respondent,

 

Department of Employment and Economic Development,

Respondent.

 

 

Filed May 16, 2006

Affirmed

Dietzen, Judge

 

Department of Employment and Economic Development

File No. 1277105

 

 

Mark A. Murfield, 260 Birmingham Street, Apartment 2, St. Paul, MN 55106 (pro se relator)

 

J & L Enterprises, Inc., 710 North Chestnut Street, Chaska, MN 55318 (respondent)

 

Linda A. Holmes, Department of Employment and Economic Development, 332 Minnesota Street, Suite E200, St. Paul, MN 55101-1351 (for respondent Department)

 

 

            Considered and decided by Stoneburner, Presiding Judge; Wright, Judge; and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N

DIETZEN, Judge

Relator Mark Murfield challenges the unemployment-law judge’s (ULJ) determination that he is disqualified from receiving unemployment benefits because he was discharged from his employment for misconduct.  Because substantial evidence in the record supports the finding that relator took merchandise without notifying the employer or paying for the product and relator’s acts constitute disqualifying misconduct, we affirm.

D E C I S I O N

Murfield was employed by respondent J & L Enterprises Inc. as a custodian and handyman from January 4, 2002, to August 3, 2005, when he was discharged for misconduct.  His application for unemployment benefits was denied, based on the department’s determination that he was discharged for misconduct.  After a hearing and again on Murfield’s request for reconsideration, an unemployment-law judge (ULJ) affirmed the department’s initial determination.

This court may affirm, remand for further proceedings, or reverse or modify the ULJ’s decision.  Minn. Stat. § 268.105, subd. 7(d) (Supp. 2005).  Reversal or modification is appropriate when

the substantial rights of the petitioner may have been prejudiced because the findings, inferences, conclusion, or decision are:

(1) in violation of constitutional provisions;

(2) in excess of the statutory authority or jurisdiction of the

department;

(3) made upon unlawful procedure;

(4) affected by other error of law;

(5) unsupported by substantial evidence in view of the entire record

as submitted; or

(6) arbitrary or capricious.

Id.

An employee is disqualified from receiving unemployment benefits when the employee has been discharged because the employee’s “intentional, negligent, or indifferent conduct . . . displays clearly a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee, or . . . displays clearly a substantial lack of concern for the employment.”  Minn. Stat. § 268.095, subds. 4(1), 6(a) (2004). 

Relator admits that he took and ate a pint of ice cream during his overnight shift on July 30 and states that he intended to pay for it on August 3 when he received his paycheck.  But he did not leave a note or explain his intentions to his supervisor at the time of the incident or two days later when he returned to work; he explained his actions only when confronted by the store manager on August 3. 

The store manager testified that he discovered that relator had taken the ice cream only because he had asked his loss-prevention employee to review the video surveillance tapes from the night of July 30.  The manager had noticed that some work had not been performed that night, so he looked to the videotape for an explanation. The tape revealed that relator had taken the ice cream.  

Relator had previously been warned that he was not to take anything without paying for it. Relator had signed and taken a quiz on the employee handbook which provided in relevant part that “[t]aking merchandise without payment is wrong and will be considered a theft.”  The handbook also required that any employee taking a product must have a receipt of payment or the store manager’s written approval.

In addition to the handbook warning, the manager testified that early in relator’s employment, relator had taken cigarettes and later told the manager that he had taken them intending to pay later.  At that time, the manager had explained to relator that if someone saw an employee taking an item without paying for it, it would be considered a theft and the employee would be discharged.  The manager also testified that it was very important to the employer that this rule be enforced “otherwise  . . . we could go out of business.”  He added that he would have lent relator the money if relator had timely written a note or explained the situation to him.

The record supports the ULJ’s findings that respondent had the right to reasonably expect that its employees would not steal merchandise from the store and that relator took the ice cream during his break and did not make a timely effort to pay for it or notify a manager that he had taken it and would pay later.  

Misconduct does not include “a single incident that does not have a significant adverse impact on the employer[.]”  Minn. Stat. § 268.095, subd. 6.  Although loss of a single pint of ice cream does not have a significant economic impact on a supermarket, allowing even one theft by an employee could have a significant adverse impact on the employer.  The language of the handbook, as well as the manager’s detailed discussion with relator, reflects the significance of theft to this employer and the importance of enforcing the anti-theft policy. 

It is well established that an employer has the right to expect honest communication from employees regarding employment matters.  An employee’s decision to knowingly violate a reasonable policy of the employer is misconduct.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 806 (Minn. 2002).  Acts of dishonesty, including theft, are considered misconduct.  E.g., Baron v. Lens Crafters, Inc., 514 N.W.2d 305, 307-08 (Minn. App. 1994) (stating that “[d]ishonesty that is connected with employment may constitute misconduct”); McKee v. Cub Foods, Inc., 380 N.W.2d 233, 236 (Minn. App. 1986) (holding that employee’s punching out on her time card after she had been shopping, not working, was misconduct); Cherveny v. 10,000 Auto Parts, 353 N.W.2d 685, 688 (Minn. App. 1984) (employee’s dishonest answers to questions employer asked while investigating alleged employee theft were misconduct).

The ULJ made findings supported by substantial evidence, and the findings support the conclusion that relator was discharged for misconduct.  

Affirmed.