This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1094

 

Mark H. Thompto,

Relator,

 

vs.

 

ORBIT Systems, Inc.,

Respondent,

 

Department of Employment and Economic Development,

Respondent.

 

Filed ­­­May 8, 2007

Affirmed

Dietzen, Judge

 

Department of Employment and Economic Development

Agency File No. 2209 06

 

Mark H. Thompto, 1980 West Seventh Street, Apartment 302, St. Paul, MN 55116-3254 (pro se relator)

 

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

 

Joseph C. Nauman, Ravich, Meyer, Kirkman, McGrath & Nauman, P.A., 4545 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for respondent ORBIT Systems, Inc.)

 

            Considered and decided by Dietzen, Presiding Judge; Randall, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

 

DIETZEN, Judge

 

            By writ of certiorari, relator challenges the decision of the unemployment law judge (ULJ) that he was discharged for misconduct and, therefore, was disqualified from receiving unemployment benefits, arguing that the determination was not supported by the record.  Because the determination that the relator was discharged for misconduct is supported by substantial evidence in the record as a whole, we affirm.

FACTS

            Relator Mark H. Thompto worked as an implementation team technician for respondent ORBIT Systems Inc. (ORBIT), an information technology outsourcing company, from mid-August 2004 until December 21, 2005.  Relator’s position required him to travel throughout Minnesota on business.  ORBIT reimbursed employees for travel and meal expenses, but placed a $40 limit on the dinner allowance.  Employees were required to submit monthly expense reports with receipts identifying the amount and the place of the meal. 

In December 2005, relator submitted his expense report for November 2005.  The report included eight credit-card receipts from various Green Mill restaurants, each with a $40 charge.  The expense report was approved, but ORBIT later questioned the same $40 charge for each meal and asked relator for an explanation.  Relator then responded in an e-mail:  “No problem with an explanation.  I exceeded the meal limit, so I charged $40 of the meal to generate the $40 receipt and paid the remainder in cash . . . .”  ORBIT was suspicious with relator’s response and contacted Green Mill, which informed ORBIT that the $40 charges had been for gift cards that were purchased on dates different from the dates of the meals.

ORBIT then met with relator in December 2005.  Relator admitted that he had purchased the gift cards, but stated that he used the gift cards to purchase meals at Green Mill.  ORBIT discharged relator because his expense report consisted of credit-card receipts for the purchase of gift cards—not actual meals, and that when questioned about his expense report, relator was deceptive.

            Relator established a benefit account with the Minnesota Department of Employment and Economic Development (DEED). A DEED adjudicator initially determined that relator was discharged for misconduct and was disqualified from receiving benefits.  Relator appealed the determination, and a DEED ULJ affirmed. This certiorari appeal follows the ULJ’s order affirming its original decision.

D E C I S I O N

Relator challenges the ULJ’s decision, arguing that the conclusion that he engaged in employment misconduct is not supported by the record.  On certiorari appeal this court may affirm the ULJ’s decision, remand it for further proceedings, or reverse or modify it if the relator’s substantial rights “may have been prejudiced because the findings, inferences, conclusion or decision are . . . affected by . . . error of law” or “unsupported by substantial evidence in view of the entire record as submitted.”  Minn. Stat. § 268.105, subd. 7(d) (2006).

            Whether an employee committed misconduct is a mixed question of fact and law. Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  Whether the employee committed a particular act is a question of fact.  Skarhus v. Davanni’s Inc., 721 N.W.2d 340, 344 (Minn. App. 2006).  Findings of fact are reviewed in the light most favorable to the ULJ’s decision, and deference is given to the ULJ’s determinations of credibility.  Id.  This court will not disturb the ULJ’s factual findings when those findings are supported by substantial evidence.  Id.; Minn. Stat. § 268.105, subd. 7(d)(5).  But whether an act by the employee constitutes disqualifying misconduct is a question of law, which we review de novo.  Schmidgall, 644 N.W.2d at 804.

An employee who was discharged for misconduct is disqualified from receiving unemployment benefits. Minn. Stat. § 268.095, subd. 4(1) (Supp. 2005). “Employment misconduct” means:

[A]ny 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.

 

Inefficiency, inadvertence, simple unsatisfactory conduct, a single incident that does not have a significant adverse impact on the employer, conduct an average reasonable employee would have engaged in under the circumstances, poor performance because of inability or incapacity, good faith errors in judgment if judgment was required, or absence because of illness or injury with proper notice to the employer, are not employment misconduct.

 

Minn. Stat. § 268.095, subd. 6(a) (2004).  Thus, a knowing violation of an employer’s directives, policies, or procedures constitutes employment misconduct because it demonstrates a substantial lack of concern for the employer’s interests.  Schmidgall, 644 N.W.2d at 804.  “A single incident where an employee deliberately chooses a course of action adverse to the employer can constitute misconduct.”  Ress v. Abbott Nw. Hosp., Inc., 448 N.W.2d 519, 524 (Minn. 1989).  And a “pattern of failing to follow policies and procedures and ignoring directions and requests” is misconduct.  Gilkeson v. Indus. Parts & Serv., Inc., 383 N.W.2d 448, 452 (Minn. App. 1986).

            ORBIT’s employee handbook lists “theft or misuse of ORBIT Systems property” and “[f]alsification of records” as misconduct subject to immediate termination.  The ULJ found that “[t]he preponderance of the evidence shows [relator] submitted expense reimbursement requests for unacceptable expenses of gift cards and did not provide an honest explanation when ORBIT questioned him,” and concluded that relator was discharged for employment misconduct. 

Relator concedes that the gift cards were not a company-approved expense item, but contends that the cards were used to purchase meals, and personal funds were used to cover the remaining expense.  Relator asserts that when his expense reports were approved he threw away his itemized receipts.

Here, gift-card purchases were not a company-approved expenditure.  This court has held that an employer has a right to expect “scrupulous adherence” to its procedures regarding employer funds.  McDonald v. PDQ, 341 N.W.2d 892, 893 (Minn. App. 1984); see also Skarhus, 721 N.W.2d at 344 (holding that theft of small amount of food by cashier had significant adverse impact on employer and did not fall within single incident exception).  Relator requested company reimbursement for the purchase of gift cards that were part of a Green Mill restaurant promotion that benefited him financially.  The promotion enabled relator to receive $120 in Green Mill gift cards for $100.  And because relator’s use of the gift cards was not on just one occasion, but happened eight times over a one-month span, it demonstrates a “pattern of failing to follow policies” amounting to misconduct.  Gilkeson, 383 N.W.2d at 452. 

            Relator also claims that he provided an “acceptable, appropriate explanation” when respondent questioned his practices.  Dishonesty during an employer’s investigation constitutes misconduct under the statute.  Cherveny v. 10,000 Auto Parts, 353 N.W.2d 685, 688 (Minn. App. 1984).  Relator’s e-mail that, “I charged $40 of the meal to generate a $40 receipt and paid the rest in cash,” failed to disclose a material fact, that is, the credit-card receipts were for gift cards, not meal charges.  Relator gives no logical reason for why he did not disclose to his employer that his credit-card receipts were not charges for meals, rather than gift cards.  On this record, the ULJ’s determination that relator committed misconduct by violating company policies and answering dishonestly in a company investigation is supported by substantial evidence in the record.

            Affirmed.      

 

_________________________________

Christopher J. Dietzen, Judge