This opinion will be unpublished and

may not be cited except as provided by

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

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-530

 

Ryan R. Aberle,

Relator,

 

vs.

 

Premier Restaurant Management, Inc.,

Respondent,

 

Department of Employment

and Economic Development,

Respondent.

 

Filed February 14, 2006

Reversed

Hudson, Judge

 

Department of Employment

and Economic Development

File No. 17589 04

 

Shari L. Jerde, Dorsey & Whitney LLP, 50 South Sixth Street, Suite 1500, Minneapolis, Minnesota 55402-1498 (for relator)

 

Premier Restaurant Management, Inc., 5605 West 36th Street, #204, St. Louis Park, Minnesota 55416-2508 (respondent)

 

Linda A. Holmes, Craig M. Gustafson, Daphne A. Lundstrom (certified student attorney), Minnesota Department of Employment and Economic Development, First National Bank Building, 332 Minnesota Street, Suite E200, St. Paul, Minnesota 55101-1351; (for respondent Department)

 

            Considered and decided by Hudson, Presiding Judge; Lansing, Judge; and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N

HUDSON, Judge

Relator challenges the decision by the senior unemployment review judge (SURJ) finding relator disqualified from receiving unemployment benefits because he had been discharged for employment misconduct.  Because the SURJ’s findings were not reasonably supported by the record, and because the one act which was reasonably supported was not employee misconduct, but merely a single incident without significant adverse impact on the employer, we reverse.

FACTS

 

            Relator, Ryan R. Aberle, was employed by respondent, Premier Restaurant Management, Inc. (PRM), as a full-time head chef from August 2002 to September 27, 2004.  Part of Aberle’s job duties was to perform a weekly food inventory.  Aberle normally performed the inventory every Monday morning.  The inventory consisted of physically weighing and counting the food inventory items and writing the information on a paper inventory sheet.  This information would then be entered into PRM’s computer to determine food cost percentage, which was used by PRM for cost control.

            The hard drive on the computer Aberle used to calculate the food cost percentage crashed on August 30, 2004 after the inventory was completed for that day.  The computer was sent out for repair.  It was not returned until September 17, 2004.  On September 21, 2004, Aberle had a vendor reinstall the inventory software.

            Prior to the week of September 20, 2004, Aberle had talked with his general manager about a position at another restaurant.  The general manager informed the regional vice-president of PRM that Aberle was looking for other employment.  Aberle testified that on September 20, the regional vice-president told him that he was disappointed that Aberle was looking for other employment and that he planned to either fire Aberle or would get him to quit.

The general manager testified that sometime during the month of September, he became suspicious that Aberle was not doing actual physical inventories of the food.  The time required for conducting a physical inventory is in dispute, but it is somewhere between one and one-half to three hours.  It is undisputed that the weekly physical inventory was due on Mondays by 9:00 a.m.  The general manager testified that Aberle had informed him that he (Aberle) usually came to work around 3:00 or 4:00 a.m. on Mondays to perform the inventory.  Aberle denies that he said this and testified that he normally came in just before 7:00 a.m. and finished the inventory around 8:30 a.m.

The general manager further testified that on September 27, 2004, he came into the restaurant around 4:15 a.m. and remained on the premises until around 6:45 a.m.  Aberle did not come to the restaurant during that time period.  The general manager left the restaurant and returned around 7:00 a.m.  The general manager testified that at approximately 7:15 a.m., when Aberle arrived, Aberle told him that he had been in the restaurant that morning from 3:30 to 5:30 a.m. doing inventory, and that he would have the inventory report completed in about 15 minutes.  Later that morning, the general manager asked Aberle to see the paper inventory sheet for that morning’s inventory.  Aberle gave him a food ordering guide instead, which contained various handwritten numbers.  It was not the actual physical inventory sheet that Aberle should have prepared prior to entering the information into the computer.  Aberle stated that he would enter the data into the computer and then give the completed inventory to the general manager.  The general manager told Aberle that he would have the hostess do the data entry instead.  The general manager did not have the data entered.

Later that day, the general manager and the regional vice president fired Aberle for not performing physical inventories as required, and, as a result, providing false inventory figures, and for falsely informing management that he had performed the inventories when he had not done so.

Aberle applied to the Minnesota Department of Employment and Economic Development (DEED) for unemployment benefits.  After a telephone hearing with an unemployment law judge (ULJ), the ULJ found that Aberle was discharged for reasons other than employment misconduct, and he was not disqualified from unemployment benefits.  PRM appealed the decision to a senior unemployment review judge (SURJ).  The SURJ found that Aberle was discharged for employment misconduct because he failed to carry out his assigned duties and gave false information to his employer.  Based upon those findings, Aberle was disqualified by DEED from the payment of unemployment benefits.  This certiorari appeal follows.

D E C I S I O N

On certiorari appeal, when reviewing a DEED determination about an employee’s qualifications for unemployment benefits, the question of whether an employee engaged in disqualifying employment misconduct is a mixed question of fact and law.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  Generally, the SURJ[1]determines the fact question of whether an employee committed the alleged acts of misconduct.  Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  We then review de novo, as a question of law, whether those particular acts constitute employment misconduct, disqualifying the employee from receiving unemployment benefits.  Schmidgall, 644 N.W.2d at 804.

This court accords “particular deference” to the decisions of the SURJ, Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995), and we will not disturb the SURJ’s findings if there is evidence that reasonably tends to sustain them.  Schmidgall, 644 N.W.2d at 804 (emphasis added).  We view the SURJ’s findings in the light most favorable to the decision.  Id.  The standard of proof in these proceedings is a preponderance of the evidence.  Minn. Stat. § 268.03, subd. 2 (2004). 

Minnesota defines employment misconduct as “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. § 268.095, subd. 6(a) (2004). 

Here, the SURJ found that Aberle committed the alleged acts of misconduct:  (1) Aberle had not performed the required weekly physical inventories on September 13, 20, & 27, and as a result, he provided inaccurate inventory figures; and (2) Aberle falsely informed management that he had performed the inventories.

We first note that the general manager and the regional vice president provided conflicting testimony regarding Aberle’s alleged admission that he did not do the required inventories.[2]  The general manager testified that Aberle admitted, at the meeting held to fire Aberle, that he had not performed a physical inventory for several weeks.  But the regional vice-president testified that, at that meeting, Aberle only admitted to not doing the inventory on the 27th.

Moreover, Aberle consistently testified that he did complete the physical inventory of the raw products on all of the dates in question, but that he had to use estimates for the prepared foods because the computer program for calculating the ingredient costs was not available to him.  In addition, Aberle testified that he did not tell the general manager that he usually came to work between 3:30 and 5:30 a.m. to do inventory.  To the contrary, Aberle testified that he generally came in just before 7:00 a.m. and would have the inventory completed by 9:00 a.m.  The general manager testified that he viewed videotapes of Aberle’s arrival on the three dates in question and that Aberle consistently arrived around 7:00 a.m.

            Finally, we are concerned about what appears to be an ulterior motive on the part of the employer for firing Aberle.  Under Minn. Stat. § 268.095, subd. 4(1) (2004), to be disqualified from receiving unemployment benefits, a person must be “discharged because of employment misconduct.”  (Emphasis added.)  Aberle testified that prior to the week of September 20, 2004, he spoke with his general manager about a position with another restaurant.  The general manager confirmed this conversation and testified that he informed the regional vice-president that Aberle was looking for other employment.  Aberle testified that in a conversation with the regional vice-president one week prior to being fired, he was told that he was either going to be fired or they would get him to quit.  Aberle’s testimony regarding this conversation was not disputed by the employer.

Although we cannot substitute our judgment for that of the administrative body when its findings are properly supported by the evidence, Vicker v. Starkey, 265 Minn. 464, 470, 122 N.W.2d 169, 173 (1963), we do not give deference to findings which are not reasonably supported by the record.  See Grotjohn v. Cornbelt Foods, Inc., 370 N.W.2d 48, 50 (Minn. App. 1985) (recognizing our limited scope of review, yet concluding that the record did not support findings of disqualification from benefits).  Here, (1) the record does not include the policy which Aberle allegedly violated, (2) the employer provided conflicting testimony on critical facts, (3) Aberle consistently maintained that he did not commit the action he is accused of, and (4) the record suggests an ulterior motive for the firing.  With the exception of the SURJ’s findings surrounding the September 27 inventory, which we address separately below, we conclude that the record does not support the SURJ’s findings by a preponderance of the evidence.  Specifically, the record does not support the SURJ’s findings that Aberle did not complete physical inventories as required for three weeks in a row, or that Aberle falsely informed management that he completed the physical inventories when he had not done so.

We acknowledge that the record does reasonably support the finding that Aberle did not complete the September 27 inventory.  But the statute exempts from the definition of employment misconduct “a single incident that does not have a significant adverse impact on the employer.”  Minn. Stat. § 268.095, subd. 6(a) (2004).  The record does not indicate that the employer suffered any adverse impact by not having the September 27 weekly inventory completed.  Thus, we conclude that Aberle’s conduct on September 27 was a single incident that did not have a significant adverse impact on the employer, and therefore Aberle is not disqualified from receiving unemployment benefits.

            Reversed.