This opinion will be unpublished and

may not be cited except as provided by

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






Jeffrey M. Ryan,





American Baptist Homes of the Midwest,



Department of Employment and Economic Development,



Filed June 6, 2006


Randall, Judge


Department of Employment and Economic Development

File No. 622105


Marty G. Helle, Hoversten, Johnson, Beckmann & Hovey, LLP, 807 West Oakland Avenue, Austin, MN55912 (for relator)


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)


American Baptist Homes of the Midwest, ABHM/ Crest Services Regional Office, Attn:† David B. Charron, 3015 Merle Hay Road, Suite 6, Des Moines, IA50310 (respondent)

††††††††††† Considered and decided by Lansing, Presiding Judge; Randall, Judge; and Willis, Judge.


U N P U B L I S H E D†† O P I N I O N


††††††††††† On appeal from the denial of unemployment benefits, relator argues that (a) he was improperly denied unemployment benefits because he acted in a manner consistent with past practices and, therefore, did not engage in misconduct; (b) his due process rights were not met because the unemployment law judge (ULJ) discouraged relator from fully developing evidence of pretextual discharge.† We affirm.


††††††††††† In April 1999, relator Jeffrey Ryan began working for respondent American Baptist Homes of the Midwest as the community administrator for the Albert Lea programs at Crest Services.† On November 30, 2004, relator was given a written warning, a second written warning, and a suspension for performance issues.† One of the issues that led to the disciplinary action concerned relatorís failure to follow proper procedure for the use of petty cash funds.† According to company policy, employees could use petty cash for business expenses.† But for personal expenses, for which employees expected to be reimbursed, employees were required to spend their own funds and then request reimbursement from the company.† During the period from May 19, 2004, through October 28, 2004, relator had used petty cash funds, but failed to turn in receipts for the expenditures.† The November 30, 2004 reprimand warned relator that another incident of financial malfeasance would be grounds for discharge.

††††††††††† In January 2005, relator attended a staff meeting in Des Moines, Iowa, which is approximately a two and one-half hour drive from Albert Lea.† The meeting concluded at about 3:00 p.m., but because relator had fallen asleep on previous trips back to Albert Lea, he decided to stay overnight in Des Moines and take the following day off as a vacation day to visit a friend.† Relator used petty cash to pay for the hotel cost of $67.20.† Although employees typically travel from all over Iowa to attend meetings in Des Moines, it was not customary for employees to stay overnight in Des Moines as a result of staff meetings.†

††††††††††† The bookkeeper at Crest Services was aware that relator had previously been warned of his use of the petty cash fund.† Based on this knowledge, she informed Robert Swigert, the budget and finance coordinator at Crest Services, of relatorís use of petty cash to pay for the hotel in Des Moines.† Swigert subsequently relayed the information to relatorís direct supervisor, David Charron.† Charron advised relator to return the funds to petty cash, and relator complied.† Shortly thereafter, Charron was notified that relator had hired a computer technician to perform weekly servicing at the Albert Lea facility. †Although relator was advised in December 2004 not to undertake computer upgrades or repairs, relator believed that, based on past practice, he had the authority to authorize such repairs.†

††††††††††† On February 11, 2005, relator was discharged for inappropriate use of petty cash funds and unauthorized expenditures.† Relator subsequently filed for unemployment benefits, and a department adjudicator determined that relator was disqualified from receiving benefits because he was discharged for employment misconduct. †Relator appealed that initial determination, and, following a de novo hearing, a department unemployment law judge (ULJ) affirmed the determination that relator was disqualified from receiving benefits.† The ULJ held that although relatorís authorization of computer maintenance expenditures did not arise to the level of employment misconduct, relator was not qualified for unemployment benefits because relatorís misuse of petty cash constituted employment misconduct.† Relator appealed.† A senior unemployment review judge (SURJ) declined to conduct further proceedings and adopted the decision of the ULJ pursuant to Minn. Stat. ß 268.105, subd. 2a (2004).† This certiorari appeal followed.†††



††††††††††† An appellate court will review the ULJís findings as adopted by the SURJ in the light most favorable to the decision and will not reverse as long as the evidence reasonably supports the finding.† Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).† Whether the personís denial of benefits was proper as a matter of law is reviewed de novo.† Id.

††††††††††† An employee discharged for employment misconduct is disqualified from receiving unemployment benefits.† Minn. Stat. ß 268.095, subd. 4(1) (2004).

Employment misconduct means any 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.

Minn. Stat. ß 268.095, subd. 6(a) (2004).

††††††††††† Here, relator argues that he is entitled to unemployment benefits because his use of petty cash to rent the motel room was not employment misconduct.† In support of his claim, relator asserts that when attending company meetings in Des Moines in the past, he has consistently stayed overnight at his employerís expense.† Relator claims that because he has problems staying awake on the drive back to Albert Lea, it was reasonable for him to stay overnight in Des Moines.†

††††††††††† Relatorís claimed justification for staying overnight in Des Moines based on his past overnight stays using employerís funds is questionable.† As respondent department points out, there is nothing in the record indicating that relatorís employer was aware of relatorís behavior on the previous occasions.† While relatorís past overnight stays in Des Moines may have been justified due to employment responsibilities, the record simply lacks information concerning relatorís past overnight stays in Des Moines.† Relatorís claimed justifications for staying overnight in Des Moines is an issue of credibility.† The ULJ is in the best position to determine credibility issues, and the ULJ here failed to find relatorís testimony on the issue to be credible.† See Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995) (stating this court defers to review judgeís credibility determinations).

††††††††††† Relator also contends that the manner in which his misuse of the petty cash fund was resolved demonstrates that his denial of unemployment benefits was improper.† The record reflects that on February 2, 2005, an e-mail exchange occurred between relator and Charron in which relator was admonished for his conduct and was told to reimburse the petty cash fund.† Relator complied, and no further action was taken until February 11, 2005, when relatorís employment was terminated.† Relator argues that because no immediate action was taken regarding his misuse of the petty cash, the petty cash issue was a dead issue resurrected by the employer after relatorís firing in order to avoid having to pay him unemployment benefits.†

††††††††††† The fact that relator was fired a week after Charron confronted relator on his use of petty cash to pay for the hotel stay does not mean that it was a ďdead issue.Ē† An employer, with cause to terminate an employee, does not have to do it immediately to preserve the grounds for termination.† One week is by no standard an unreasonable amount of time to ponder a personnel decision.† If the employer had kept relator on for two years and then brought up a stale petty cash issue and tried to terminate relator at that time, we might have a justiciable issue.† But the time lapse of just seven days is not an issue.† The record reflects that relator had previously been warned of his use of the petty cash fund.† Misuse of employment funds can constitute employment misconduct.See Minn. Stat. ß 268.095, subd. 6(a)(1) (defining employment misconduct as ďany intentional, negligent, or indifferent conduct . . . that evinces a serious violation of the standards of behavior the employer has the right to reasonably expect of the employeeĒ); see also Schmidgall, 644 N.W.2d at 804 (noting that a knowing violation of employerís procedures constitutes misconduct because it demonstrates substantial lack of concern for employerís interests).† The fact that respondent employer waited one week, until February 11, 2005, to terminate relatorís employment is immaterial.†

††††††††††† Relator then contends that he is entitled to benefits because his firing for employment misconduct was pretextual.† Relatorís disagreements with superiors do not change the fact that relatorís misuse of petty cash funds constituted employment misconduct.† The record reflects that although Charron and relator disagreed at times, relator was not fired until he disregarded warnings directed at his misuse of petty cash.† Because relator was fired for misuse of the petty cash funds, which constitutes employment misconduct, relatorís argument that his termination was pretextual is speculative.


††††††††††† Relator argues that he was denied a fair hearing on the matter because the ULJ continuously rushed him, prevented him from developing his evidence, and refused to hear testimony that supported the theory that the motel and computer issues were pretextual.† The ULJ should assist unrepresented parties in the presentation of evidence and shall ensure that relevant facts are clearly and fully developed.† Thompson v. County of Hennepin, 660 N.W.2d 157, 161 (Minn. App. 2003).† When parties are unrepresented by counsel, the ď[ULJs] have the obligation to recognize and interpret the partiesí claims.Ē† Miller v. Intíl Express Corp., 495 N.W.2d 616, 618 (Minn. App. 1993).

Here, the record reflects that the de novo hearing, heard via telephone, was conducted in a rather expeditious manner.† The process by which the hearing was administered is troubling, but there is nothing in the record to show that relator was prejudiced.† Relator was able to present evidence supporting his claim that his firing was pretextual.† There is evidence in the record supporting relatorís claim that his superiors simply did not like relatorís management style.† Overall, relator had a fair chance to be heard.