This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
STATE OF MINNESOTA
IN COURT OF APPEALS
Mark H. Thompto,
ORBIT Systems, Inc.,
Department of Employment and Economic Development,
Filed May 8, 2007
Department of Employment and Economic Development
Agency File No. 2209 06
Mark H. Thompto,
Lee B. Nelson, Linda A. Holmes, Department of Employment and Economic Development, E200 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101 (for respondent Department of Employment and Economic Development)
Joseph C. Nauman, Ravich, Meyer, Kirkman, McGrath & Nauman, P.A., 4545 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for respondent ORBIT Systems, Inc.)
Considered and decided by Dietzen, Presiding Judge; Randall, Judge; and Hudson, Judge.
By writ of certiorari, relator challenges the decision of the unemployment law judge (ULJ) that he was discharged for misconduct and, therefore, was disqualified from receiving unemployment benefits, arguing that the determination was not supported by the record. Because the determination that the relator was discharged for misconduct is supported by substantial evidence in the record as a whole, we affirm.
Mark H. Thompto worked as an implementation team technician for respondent
ORBIT Systems Inc. (ORBIT), an information technology outsourcing company, from
mid-August 2004 until December 21, 2005.
Relator’s position required him to travel throughout
In December 2005, relator submitted his expense report for November 2005. The report included eight credit-card receipts from various Green Mill restaurants, each with a $40 charge. The expense report was approved, but ORBIT later questioned the same $40 charge for each meal and asked relator for an explanation. Relator then responded in an e-mail: “No problem with an explanation. I exceeded the meal limit, so I charged $40 of the meal to generate the $40 receipt and paid the remainder in cash . . . .” ORBIT was suspicious with relator’s response and contacted Green Mill, which informed ORBIT that the $40 charges had been for gift cards that were purchased on dates different from the dates of the meals.
ORBIT then met with relator in December 2005. Relator admitted that he had purchased the gift cards, but stated that he used the gift cards to purchase meals at Green Mill. ORBIT discharged relator because his expense report consisted of credit-card receipts for the purchase of gift cards—not actual meals, and that when questioned about his expense report, relator was deceptive.
Relator established a benefit account with the Minnesota Department of Employment and Economic Development (DEED). A DEED adjudicator initially determined that relator was discharged for misconduct and was disqualified from receiving benefits. Relator appealed the determination, and a DEED ULJ affirmed. This certiorari appeal follows the ULJ’s order affirming its original decision.
D E C I S I O N
the ULJ’s decision, arguing that the conclusion that he en
an employee committed misconduct is a mixed question of fact and law. Schmidgall v. FilmTec Corp., 644 N.W.2d
801, 804 (
An employee who was discharged for misconduct is disqualified from receiving unemployment benefits. Minn. Stat. § 268.095, subd. 4(1) (Supp. 2005). “Employment misconduct” means:
[A]ny 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.
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.
ORBIT’s employee handbook lists “theft or misuse of ORBIT Systems property” and “[f]alsification of records” as misconduct subject to immediate termination. The ULJ found that “[t]he preponderance of the evidence shows [relator] submitted expense reimbursement requests for unacceptable expenses of gift cards and did not provide an honest explanation when ORBIT questioned him,” and concluded that relator was discharged for employment misconduct.
Relator concedes that the gift cards were not a company-approved expense item, but contends that the cards were used to purchase meals, and personal funds were used to cover the remaining expense. Relator asserts that when his expense reports were approved he threw away his itemized receipts.
purchases were not a company-approved expenditure. This court has held that an employer has a
right to expect “scrupulous adherence” to its procedures regarding employer
funds. McDonald v. PDQ, 341 N.W.2d 892, 893 (
also claims that he provided an “acceptable, appropriate explanation” when
respondent questioned his practices. Dishonesty
during an employer’s investigation constitutes misconduct under the
statute. Cherveny v. 10,000 Auto Parts, 353 N.W.2d 685, 688 (
Christopher J. Dietzen, Judge