This opinion will be unpublished and

may not be cited except as provided by

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







Erin T. Randolph,





Nokomis Hardware Inc.,



Department of Employment and Economic Development,



Filed November 16, 2005


Toussaint, Chief Judge


Department of Employment and Economic Development

File No. 15041 04


Erin T. Randolph, 6839 Columbus Avenue South, Richfield, MN 55423 (pro se relator)


Nokomis Hardware Inc., 5155 34th Avenue South, Minneapolis, MN 55417 ( respondent)


Linda Alison Holmes, Department of Employment and Economic Development, E200 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101 (for respondent DEED)


            Considered and decided by Toussaint, Chief Judge; Kalitowski, Judge; and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

            Relator challenges the determination of a senior unemployment review judge (SURJ) that relator was discharged for misconduct and is not entitled to unemployment benefits.  Because evidence supports the SURJ’s findings and the conclusion is not contrary to the statutory mandate, we affirm.


            Relator Erin Randolph worked as a salesclerk for respondent Nokomis Hardware, Inc., a retail hardware store, from February 2003 until his discharge in August 2004.  He applied for unemployment benefits. A department adjudicator determined that relator was discharged for misconduct; an unemployment law judge, after a hearing, affirmed that determination, and a senior unemployment review judge independently determined that relator had been discharged for misconduct.

            Misconduct is defined as “any intentional, negligent, or indifferent conduct . . . (1) that evinces a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee . .  . .”  Minn. Stat. § 268.095, subd. 6 (a) (Supp. 2003).  A determination that an employee not entitled to benefits for reasons of misconduct is a mixed question of fact and law.  Colburn v. Pine Portage Madden Bros., 346 N.W. 2d 159, 161 (Minn. 1984).  This 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’s acts constitute misconduct is a question of law that this court reviews de novo.  Schmidgall v. FilmTec Corp., 644 N.W. 2d 801, 804 (Minn. 2002). 

            The SURJ found that relator was discharged for two reasons: being in the parking lot helping to repair a car when he was scheduled to be in the store and taking merchandise without paying for it.  Specifically, the SURJ found:

In July 2004, [relator] was told that working on cars in the parking lot during scheduled work hours was unacceptable.  On August 18, 2004, [relator] assisted . . . in [the] parking lot . . . with a problem with an alternator.  More than once, another sales clerk called to [relator] . . . [to] return to the store to help customers.


Respondent’s owner-operator testified that she told relator in July “[t]hat working on cars in the parking lot was unacceptable.”  Another employee who was working with relator that day testified that, “at times I had to call him, mainly when he was outside working on the car.”   Relator testified that, while he was working on the car, this employee “called me in [to the store] to answer a question for a customer.”   The SURJ’s finding is supported by the evidence. 

            Respondent reasonably requested relator to remain in the store and not go to the parking lot to work on cars while he was on duty.  Refusal to abide by an employer’s reasonable requests amounts to misconduct.  Id.   The SURJ did not err in concluding that relator’s refusal to comply with respondent’s request was misconduct.

            The SURJ also found that:

[Relator] came into the store with his wife and was chatting with a sales clerk.  At one point, [relator] took a bottle of Liquid Plumber from a shelf, chatted a few minutes more with the sales clerk, and then left the store without paying for the Liquid Plumber or leaving an IOU.


Another employee testified that relator and his wife came into the store, relator chatted with a third employee who was on duty, then picked up a $6.49 bottle of Liquid Plumber, chatted a few more minutes, and left with the bottle: “he did not pay for it, nor did he leave an IOU.  He didn’t tell [the other employee] to write one up nor did he write one up.”   The case register receipts indicated that no item of the value of Liquid Plumber had been rung up on that day.  Relator asserts that he does not use Liquid Plumber, but this is not dispositive of his having taken a bottle without paying for it. Again, evidence supports the SURJ’s finding. 

            “Dishonesty that is connected with employment may constitute misconduct.”  Baron v. Lens Crafters, Inc., 514 N.W.2d 305, 307 (Minn.App. 1994).   Relator was dishonest in removing merchandise without paying for it.  The SURJ’s conclusion that relator committed misconduct is not contrary to the statute.

            Relator was discharged for misconduct and is not entitled to unemployment benefits.