This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat.§ 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-96-1266

Steven W. Anonen,

Relator,

vs.

Eagles Club-Mankato-269, Inc.,

Respondent,

Commissioner of Economic Security,

Respondent.

Filed January 7, 1997

Reversed

Kalitowski, Judge

Department of Economic Security

File No. 213OUC96

Kenneth R. White, Farrish, Johnson & Maschka, 210 North Broad Street, Suite 200, P.O. Box 550, Mankato, MN 56002-0550 (for Relator)

Kent E. Todd, 390 North Robert Street, St. Paul, MN 55101 (for Respondent Commissioner of Economic Security)

Considered and decided by Kalitowski, Presiding Judge, Crippen, Judge, and Harten, Judge.

U N P U B L I S H E D O P I N I O N

KALITOWSKI, Judge

Steven Anonen claims the Commissioner's representative erred by finding that he committed misconduct because he stole food from his employer. Because the record does not support the Commissioner's representative's findings, we reverse.

D E C I S I O N

An employee who is fired for misconduct is disqualified from receiving reemployment insurance benefits. Minn. Stat. § 268.09, subd. 1(b) (1996). "Misconduct" includes an intentional and substantial disregard of an employer's interests or conduct manifesting "equal culpability, wrongful intent or evil design." In re Tilseth's Claim, 295 Minn. 372, 374-75, 204 N.W.2d 644, 646 (1973) (quoting Boynton Cab Co. v. Neubeck, 237 Wis. 249, 259, 296 N.W. 636, 640 (1941)). A single incident may constitute misconduct, if the incident demonstrates sufficient culpability. Colburn v. Pine Portage Madden Bros., 346 N.W.2d 159, 161 (Minn. 1984).

The reemployment insurance statutes are remedial in nature, and are to be liberally construed in favor of awarding benefits. Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989). An employer has the burden of proving by a preponderance of the evidence that an employee committed disqualifying misconduct. Id. The Commissioner's representative's findings should be reviewed in the light most favorable to the decision, and should not be overturned if there is evidence in the record that reasonably tends to sustain them. Id. at 523.

Dishonesty or theft by an employee ordinarily constitutes misconduct. See, e.g., Waara v. Mesabi Regional Medical Ctr., 415 N.W.2d 362 (Minn. App. 1987) (staff nurse took prescription medication from medical center's supplies); Whorton v. Department of Health & Human Servs., 368 N.W.2d 750 (Minn. App. 1985) (inspector let others do his inspections and falsified inspection reports); Raaum v. Glenwood Retirement Homes, 357 N.W.2d 131 (Minn. App. 1984) (employee possessed snow boots belonging to a coworker); Dawson v. Northland Beverages, Inc., 347 N.W.2d 287 (Minn.App. 1984) (employee's overages supported inference of theft).

The Commissioner's representative found that Anonen lacked the requisite permission from respondent's facility manager to take home a steak and a half-pound of bacon one evening after work. However, there is no evidence that Anonen needed permission from respondent's facility manager; rather, the record indicates that it was the kitchen manager who had the authority to grant permission to take food and that Anonen was the acting kitchen manager that evening. Anonen testified that he believed the regular kitchen manager would have given him permission to take the food home, and respondent submitted no evidence to contradict that testimony.

Anonen testified that other cooks took food home. The Commissioner argues that a violation of respondent's policy by others is no defense to a claim of misconduct, citing Dean v. Allied Aviation Fueling Co., 381 N.W.2d 80, 83 (Minn. App. 1986). But Anonen claims he was unaware of a policy that applied to the cooks. The regular kitchen manager admitted that he allowed employees to eat at work, and he also admitted that he did not have a problem with employees taking food home. This situation is distinguishable from Dean, where the employee violated a policy that was understood. Here, the record does not demonstrate that Anonen violated a settled policy. The evidence supports a finding that there was a misunderstanding rather than misconduct.

Reversed.