This opinion will be unpublished and

may not be cited except as provided by

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






Richard F. Jelinek,





Federal Express Corporation,



Department of Employment and Economic Development,



Filed July 25, 2006


Kalitowski, Judge


Department of Employment and Economic Development

File No. 1055105


Richard F. Jelinek, 4812 108th Lane Northeast, Circle Pines, MN 55014 (pro se relator)


Federal Express Corporation, 1828 Buerkle Road, White Bear Lake, MN 55110 (respondent)


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 of Employment and Economic Development)


            Considered and decided by Hudson, Presiding Judge; Kalitowski, Judge; and Parker, Judge.*

U N P U B L I S H E D   O P I N I O N


            Relator challenges the determination that he was discharged for misconduct.  Because relator’s act in leaving pornographic materials on company property in sight of another employee was misconduct, we affirm.


Relator Richard Jelinek drove a truck for respondent Federal Express.  He was discharged two days after a female employee, who was looking for supplies in the truck relator drove, found pornographic cards “strewn about” and reported the incident to respondent’s management. When questioned, relator admitted the cards were his property. 

Respondent had an anti-harassment policy prohibiting inappropriate language and conduct that would create an offensive working environment.  Respondent contends that leaving pornographic cards visible to another employee in the truck was a violation of that policy.

Following a telephone hearing, an unemployment law judge (ULJ) found that storing pornographic cards in respondent’s truck was misconduct. Relator requested reconsideration, and the ULJ affirmed the previous decision.

Misconduct includes “any intentional, negligent, or indifferent conduct, on the job or off the job . . . that displays clearly a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee” or “that displays clearly a substantial lack of concern for the employment.”  Minn. Stat. § 268.095, subd. 6(a) (2004).  This definition is exclusive; no other definition applies.  Minn. Stat. § 268.095, subd. 6(e) (2004). Whether an employee’s acts constitute misconduct is a question of law, which this court reviews de novo.  Schmidgall v. Filmtec Corp., 644 N.W.2d 801, 804 (Minn. 2002).   But factual findings are reviewed in the light most favorable to the decision and will not be disturbed if there is evidence that “reasonably tends to sustain” them.  Id.

The ULJ found that:

[Relator] said the pictures were in a bag and he forgot to remove them from the truck.  The evidence does not support that the pictures were in a bag, because the finder said she found them strewn about. . . . [Relator] left them on company property and not in an area to which he had a right to expect any privacy.


The record supports this finding.  It includes the written statement of the employee who found the cards:  “I was looking for supplies on the top shelf behind the driver’s side [of the truck] and I found some pornographic cards strewn about.”  It also includes relator’s written statement:

The cards were purchased by me sometime in Nov. or Dec. ’04.  I forgot them in the bucket in the back of my truck.  When I was cleaning out the supplies area of my truck I found them and was going to throw them away but must have set them down and forgot them there. 


The ULJ’s finding is supported by this evidence.

            Particularly in light of its anti-harassment policy, respondent had a right to expect that its employees would not leave pornographic materials on company property where they could be found by and offend other employees.  Relator’s conduct violated the standard of behavior that his employer had a right to reasonably expect from him.  See Minn. Stat. § 268.095, subd. 6(a).

            Minn. Stat. § 268.095, subd. 6(a), also excludes from misconduct “a single incident that does not have a significant adverse impact on the employer.”  While leaving the pornographic cards visible to another employee in a company truck was a single incident, it did have an adverse impact on the employer:  in violation of the employer’s anti-harassment policy, it created a “working environment” that was “offensive” for the employee who found the cards.  

            Because relator’s action violated the standard of conduct relator’s employer had a right to expect and had an adverse impact on the employer by creating an offensive working environment for one of its employees, we conclude that relator was discharged for misconduct.


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