This opinion will be unpublished and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
C6-98-670

Arla J. McNamara
Relator,

vs.

Goodwill Industries, Inc.,
Respondent,

Commissioner of Economic Security,
Respondent.

Filed October 20, 1998
Reversed
Huspeni, Judge

Department of Economic Security
Agency No. 9887 UC 97

Arla J. McNamara, 241 105th Lane NW, Coon Rapids, MN 55448 (pro se relator)

David M. Wilk, Oppenheimer, Wolff & Donnelly, 1700 First Bank Building, 332 Minnesota Street, St. Paul, MN 55101-1313 (for respondent Goodwill Industries, Inc.)

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

Considered and decided by Peterson, Presiding Judge, Huspeni, Judge, and Randall, Judge.

U N P U B L I S H E D   O P I N I O N

HUSPENI, Judge

Relator challenges the commissioner's finding that she was terminated for misconduct. Because the evidence does not reasonably tend to support the commissioner's finding, we reverse.

FACTS

Relator Arla McNamara worked as a supervisor for Goodwill Industries, Inc. (Goodwill). Goodwill has a written policy that prohibits employees from purchasing donated merchandise at a discount. Although relator admits to knowledge of this policy, she testified without contradiction that the manager told her that the store where she worked did not enforce the policy. Instead, relator was told she could purchase items at a discount as long as the purchase and price were approved by a manager.

From August 1996 to July 1997, relator occasionally purchased items at a discount, always with manager approval. In May 1997, relator made an offer on an entertainment center. The manager told her that he wanted to place the center on the sales floor for two weeks first to see if it would sell at the original marked price. The next day, after noticing that the entertainment center was gone, relator learned that it had been sold to an assistant manager at a discount. Relator reported this incident to a former assistant manager, who then reported it to the Goodwill offices.

In July 1997, Goodwill hired a new district manager. At that time, he met with personnel from each store and stated that the prohibition of employee discount purchases would be strictly enforced at each location. Relator did not make any discounted purchases after this meeting.

In mid-October, relator met with the district manager to discuss her concern about a cash-mishandling incident that had taken place at the store. In the course of the discussion, relator admitted that before July 1997 she and several employees had purchased merchandise at a discount. Goodwill terminated relator at the end of October for violating the policy on employee discount purchases.

Relator was initially disqualified from reemployment insurance benefits because she was terminated for misconduct. On appeal, a reemployment insurance judge reversed the disqualification. Goodwill appealed the decision and a commissioner's representative reversed, holding that relator was terminated for misconduct and disqualified from reemployment insurance benefits. This appeal followed.

DECISION

The findings of the commissioner must "be viewed in the light most favorable to the decision, and if there is evidence reasonably tending to sustain them, they will not be disturbed." White v. Metropolitan Med. Ctr., 332 N.W.2d 25, 26 (Minn. 1983) (citation omitted). The commissioner's determination that an employee committed misconduct is a mixed question of fact and law. Colburn v. Pine Portage Madden Bros., 346 N.W.2d 159, 161 (Minn. 1984). A reviewing court will affirm if the findings of fact "are not without support in the evidence" and if "the conclusion on those facts is not contrary to the statutory mandate." Id. Whether an employee committed misconduct under the statute is a question of law upon which reviewing courts remain free to exercise their independent judgment. Ress v. Abbott N.W. Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).

An employee terminated for misconduct is disqualified from receipt of reemployment insurance benefits. Minn. Stat. 268.09, subd. 10(1) (Supp. 1997) states:

A claimant who is discharged from employment by an employer shall not be disqualified from benefits:
(1) unless the claimant was discharged because of misconduct that interfered with and adversely affected that employment.

Minn. Stat. 268.09, subd. 12 (Supp. 1997) defines misconduct as

intentional conduct showing a disregard of:
(1) the employer's interest;
(2) the standards of behavior that an employer has the right to expect of the employee; or
(3) the employee's duties and obligations to the employer. Misconduct also includes negligent conduct by an employee demonstrating a substantial lack of concern for the employment. Inefficiency, inadvertence, simple unsatisfactory conduct, or poor performance as a result of inability or incapacity are not misconduct.

There is no dispute that Goodwill had a written policy prohibiting discounted employee purchases and that relator violated the policy. However, relator's testimony that she was told that the store where she worked did not enforce the policy was also undisputed. After relator learned that the policy would be enforced at all stores, she ceased making discounted employee purchases.

The commissioner noted that even though relator was told by her immediate manager that the policy was not enforced, because some of the store's own managers or supervisors "were themselves involved in such conduct[,] * * * their knowledge and actions should not be imputed or attributed to the employer." The commissioner also found that relator knew the policy and joined in violating the policy only when it was to her advantage.

Relator violated the company policy, but acted in accordance with the store policy where she worked. There is nothing in the record to indicate that it was not reasonable for relator to rely on her manager's authority. Nor is there anything in the record to indicate that relator knew that her manager lacked the authority to exempt his store from the company policy. When it was made clear to relator that company policy must be followed, she complied.

Moreover, when relator reported the entertainment center incident, she reported it to a former assistant manager from the store where she worked. It seems that she was reporting a violation of store policy, not company policy. Thus, based on the record before us, the determination that relator committed misconduct is not supported by the evidence. Relator's actions do not demonstrate the "substantial lack of concern for the employment" necessary to establish termination for misconduct. In consideration of the entire record, the commissioner's finding that the termination was for misconduct was not reasonably supported by the facts.

In view of our determination that relator was not discharged for misconduct, we do not reach her argument that she was not similarly treated as other terminated employees after she was discharged.

Reversed.