This opinion will be unpublished and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
Jeffrey M. Ryan,
American Baptist Homes of the
Department of Employment and Economic Development,
Department of Employment and Economic Development
File No. 622105
Marty G. Helle,
Hoversten, Johnson, Beckmann & Hovey, LLP,
Linda A. Holmes, Department of Employment and Economic Development, First National Bank Building, 332 Minnesota Street, Suite E200, St. Paul, MN† 55101-1351 (for respondent Department)
Homes of the
††††††††††† Considered and decided by Lansing, Presiding Judge; Randall, Judge; and Willis, Judge.
U N P U B L I S H E D†† O P I N I O N
††††††††††† On appeal from the denial of unemployment benefits, relator argues that (a) he was improperly denied unemployment benefits because he acted in a manner consistent with past practices and, therefore, did not engage in misconduct; (b) his due process rights were not met because the unemployment law judge (ULJ) discouraged relator from fully developing evidence of pretextual discharge.† We affirm.
††††††††††† In April 1999, relator Jeffrey Ryan began
working for respondent American Baptist Homes of the Midwest as the community
administrator for the
††††††††††† In January 2005, relator attended a staff meeting in
††††††††††† The bookkeeper at Crest Services was aware that relator
had previously been warned of his use of the petty cash fund.† Based on this knowledge, she informed Robert
Swigert, the budget and finance coordinator at Crest Services, of relatorís use
of petty cash to pay for the hotel in
††††††††††† On February 11, 2005, relator was discharged for inappropriate use of petty cash funds and unauthorized expenditures.† Relator subsequently filed for unemployment benefits, and a department adjudicator determined that relator was disqualified from receiving benefits because he was discharged for employment misconduct. †Relator appealed that initial determination, and, following a de novo hearing, a department unemployment law judge (ULJ) affirmed the determination that relator was disqualified from receiving benefits.† The ULJ held that although relatorís authorization of computer maintenance expenditures did not arise to the level of employment misconduct, relator was not qualified for unemployment benefits because relatorís misuse of petty cash constituted employment misconduct.† Relator appealed.† A senior unemployment review judge (SURJ) declined to conduct further proceedings and adopted the decision of the ULJ pursuant to Minn. Stat. ß 268.105, subd. 2a (2004).† This certiorari appeal followed.†††
D E C I S I O N
††††††††††† An appellate court will review the
ULJís findings as adopted by the SURJ in the light most favorable to the
decision and will not reverse as long as the evidence reasonably supports the
finding.† Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (
misconduct means any intentional, negligent, or indifferent conduct, on the job
or off the job (1) that displays clearly a serious violation of the standards
of behavior the employer has the right to reasonably expect of the employee,
or (2) that displays clearly a substantial lack of concern for the employment.
Minn. Stat. ß 268.095, subd. 6(a) (2004).
††††††††††† Here, relator
argues that he is entitled to unemployment benefits because his use of petty
cash to rent the motel room was not employment misconduct.† In support of his claim, relator asserts that
when attending company meetings in
††††††††††† Relatorís claimed
justification for staying overnight in
††††††††††† Relator also contends that the manner in which his misuse of the petty cash fund was resolved demonstrates that his denial of unemployment benefits was improper.† The record reflects that on February 2, 2005, an e-mail exchange occurred between relator and Charron in which relator was admonished for his conduct and was told to reimburse the petty cash fund.† Relator complied, and no further action was taken until February 11, 2005, when relatorís employment was terminated.† Relator argues that because no immediate action was taken regarding his misuse of the petty cash, the petty cash issue was a dead issue resurrected by the employer after relatorís firing in order to avoid having to pay him unemployment benefits.†
††††††††††† The fact that relator was fired a week after Charron confronted relator on his use of petty cash to pay for the hotel stay does not mean that it was a ďdead issue.Ē† An employer, with cause to terminate an employee, does not have to do it immediately to preserve the grounds for termination.† One week is by no standard an unreasonable amount of time to ponder a personnel decision.† If the employer had kept relator on for two years and then brought up a stale petty cash issue and tried to terminate relator at that time, we might have a justiciable issue.† But the time lapse of just seven days is not an issue.† The record reflects that relator had previously been warned of his use of the petty cash fund.† Misuse of employment funds can constitute employment misconduct.† See Minn. Stat. ß 268.095, subd. 6(a)(1) (defining employment misconduct as ďany intentional, negligent, or indifferent conduct . . . that evinces a serious violation of the standards of behavior the employer has the right to reasonably expect of the employeeĒ); see also Schmidgall, 644 N.W.2d at 804 (noting that a knowing violation of employerís procedures constitutes misconduct because it demonstrates substantial lack of concern for employerís interests).† The fact that respondent employer waited one week, until February 11, 2005, to terminate relatorís employment is immaterial.†
††††††††††† Relator then contends that he is entitled to benefits because his firing for employment misconduct was pretextual.† Relatorís disagreements with superiors do not change the fact that relatorís misuse of petty cash funds constituted employment misconduct.† The record reflects that although Charron and relator disagreed at times, relator was not fired until he disregarded warnings directed at his misuse of petty cash.† Because relator was fired for misuse of the petty cash funds, which constitutes employment misconduct, relatorís argument that his termination was pretextual is speculative.
††††††††††† Relator argues that he was denied a
fair hearing on the matter because the ULJ continuously rushed him, prevented
him from developing his evidence, and refused to hear testimony that supported
the theory that the motel and computer issues were pretextual.† The ULJ should assist unrepresented
parties in the presentation of evidence and shall ensure that relevant facts
are clearly and fully developed.†
Here, the record reflects that the de novo hearing, heard via telephone, was conducted in a rather expeditious manner.† The process by which the hearing was administered is troubling, but there is nothing in the record to show that relator was prejudiced.† Relator was able to present evidence supporting his claim that his firing was pretextual.† There is evidence in the record supporting relatorís claim that his superiors simply did not like relatorís management style.† Overall, relator had a fair chance to be heard.