This opinion will be unpublished and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

A06-1096

 

Sean Bowman,

Relator,

 

vs.

 

ConAgra Foods,

Respondent,

 

Department of Employment and Economic Development,

Respondent.

 

Filed May 8, 2007

Affirmed

Shumaker, Judge

 

Department of Employment and Economic Development

File No. 4657 06

 

 

Sean R. Bowman, 1755 Grace Lane, St. Paul, MN 55106 (pro se relator)

 

ConAgra Foods, Food Ingredients Company, c/o TALX UCM Services, Inc., P.O. Box 283, St. Louis, MO 63166-0283 (respondent employer)

 

Lee B. Nelson, Linda A. Holmes, Minnesota Department of Employment and Economic Development, 1st National Bank Building, 332 Minnesota Street, Suite E200, St. Paul, MN 55101-1351 (for respondent department)

 

 

 

            Considered and decided by Shumaker, Presiding Judge; Klaphake, Judge; and Willis, Judge.

 

U N P U B L I S H E D   O P I N I O N

SHUMAKER, Judge

            Relator Sean Bowman challenges the decision that he was disqualified from receiving unemployment benefits because he had been discharged for employment misconduct for committing theft of three drills.  Relator challenges the credibility determination of the unemployment law judge (ULJ) and argues, as he did at the hearing, that he had signed them out but had forgotten to put his name on the sign-out sheet, and that out of jealousy his ex-girlfriend reported to the company that he stole the equipment.  Because substantial evidence supports the ULJ’s decision, and the ULJ did not err in determining that relator was discharged for employment misconduct, we affirm.  

 

FACTS

 

            Relator Sean Bowman was employed by respondent ConAgra Foods on rotating shifts as a sweeper and smutter at ConAgra’s Hastings facility from October 2004 until his discharge on February 2, 2006.  ConAgra has a company policy that prohibits theft of company property or the property of others.  All employees review the policy when they are hired and acknowledge with their signatures that they understand the policy. 

            On February 1, Bowman’s girlfriend, with whom he had been having ongoing conflicts, called ConAgra and stated that Bowman had stolen drills that were in his possession at his Rosemount residence.  ConAgra representatives reported this to police.  Bowman’s girlfriend met two ConAgra employees and police at the residence and told them that Bowman had taken other tools and sold them on eBay.  In the garage of the residence, police found a DeWalt electric drill, etched with the name of a ConAgra supervisor.  The supervisor had reported the drill missing in the fall after it had been stolen when he brought the drill in to remodel his office.  At that time he announced the theft to the milling crew, including Bowman.  Police recovered the drill from the garage and reported that the garage contained additional drills believed to be stolen.

            When police told Bowman that they had found stolen property in his garage, Bowman told them that he had two additional drills.  The ConAgra maintenance manager reported that ConAgra was not missing any drills, but that contractors working for the company had reported property stolen, including drills.  ConAgra recovered two Hilti drills, worth about $300.  The cases for the Hilti drills contained UPS labels and barcodes that the contractors used to ship to the ConAgra facility. 

            ConAgra suspended Bowman the day that the drills were found in Bowman’s garage.  The next day, Bowman was discharged.  Bowman filed a claim for unemployment benefits and was determined to qualify for benefits.  ConAgra appealed.  At a hearing before the ULJ, Bowman testified that he borrowed the drills and signed them out on a sheet provided by ConAgra for employees to borrow tools.  The ULJ denied benefits, determining that Bowman was discharged for employment misconduct.  On reconsideration, the ULJ affirmed the denial.  This certiorari appeal follows.

D E C I S I O N

 

This court on review may affirm an unemployment law judge’s decision, remand it for further proceedings, or reverse or modify it

if the substantial rights of the petitioner may have been prejudiced because the findings, inferences, conclusion or decision are:

(1)       in violation of constitutional provisions;

(2)       in excess of the statutory authority or jurisdiction of the             department;

(3)       made upon unlawful procedure;

(4)       affected by other error of law;

(5)       unsupported by substantial evidence in view of the           entire record as submitted; or

(6)       arbitrary or capricious.

 

Minn. Stat. § 268.105, subd. 7(d) (Supp. 2005). 

 

            A person who is discharged from employment because of employment misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4(1) (2004).  Whether an employee committed a particular act is a question of fact.  Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  This court defers to the ULJ’s findings regarding credibility and conflicting evidence.  Skarhus v. Davanni’s, Inc., 721 N.W.2d 340, 344 (Minn. App. 2006).  “When the parties have presented conflicting evidence on the record, this court must defer to the [ULJ’s] ability to weigh the evidence; we may not weigh that evidence on review.”  Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995).  But whether an employee’s acts constitute misconduct is a question of law, which this court reviews de novo.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002). 

            Employment misconduct includes “any intentional, negligent, or indifferent conduct, on the job or off the job . . . that displays clearly 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) (2004).  “Inefficiency, inadvertence, simple unsatisfactory conduct, [or] a single incident that does not have a significant adverse impact on the employer . . . are not employment misconduct.”  Id.   

            “A single incident of theft by an employee is employment misconduct because it undermines the employer’s trust in that employee and the employer’s ability to assign essential functions to that employee.”  Pierce v. DiMa Corp., 721 N.W.2d 627, 630 (Minn. App. 2006) (citing Skarhus, 721 N.W.2d at 344).  In Skarhus, this court upheld a ULJ’s determination that an employee’s theft of less than four dollars had a significant adverse impact on the employer and did not fall within the single-incident exception.  Skarhus, 721 N.W.2d at 344; cf. Pierce, 721 N.W.2d at 630 (concluding that employee’s single violation of employer’s cash-register policy, which did not constitute theft, was not disqualifying misconduct).  An employee’s unauthorized possession of property belonging to another employee has been determined to be disqualifying misconduct.  Raaum v. Glenwood Retirement Homes, 357 N.W.2d 131, 132 (Minn. App. 1984).

            The ULJ determined that Bowman was discharged for employment misconduct because a preponderance of the evidence showed that Bowman stole the drills in question.  Bowman does not dispute the ULJ’s findings that three drills had been missing since the fall of 2005, and that Bowman’s girlfriend reported that there was stolen property in Bowman’s garage, where the contractor’s drill was found.  But he argues that the evidence does not support the determination that he stole the drills because he signed the drills out on a sign-out sheet provided by ConAgra and he intended to return them.  In support of his argument, Bowman testified that he merely forgot to write his name down as the person who signed the drills out, that another employee saw him walk out with the drills, and that his former girlfriend, who did not know that he had signed the drills out, reported the drills stolen to ConAgra in retaliation because she saw him in a car with another woman.  

            The sign-out sheet contains an entry on January 26 for “3 drills,” with no name or description of the drills.  The ULJ found that it was likely that Bowman made the notation on the sheet on February 1, after he learned that his girlfriend had reported drills stolen to ConAgra.  This finding is supported by the evidence.  The record reflects Bowman had signed out a “Hilti drill” earlier in the fall and signed his name on the sheet, along with the condition of the drill, indicating he was aware of the proper sign-out procedure.  In contrast, the January 26 notation did not contain Bowman’s name, or a description of the drills, or their condition.  Additionally, the sign-out entry immediately following the “three drills” was dated February 1 by another employee working the same evening shift as Bowman.  The operations manager testified that he talked to Bowman about the stolen drills at 8 or 9 p.m. that day.  The record thus permits the reasonable inference that Bowman made the sign-out entry of “three drills” after he learned that the drills were reported stolen and before the other employee’s next entry.

            Bowman also testified that, when he borrowed the drills, he was unaware that they belonged to the contractors or the supervisor, rather than to ConAgra, and that the drills he took were “mixed into” company drills in the maintenance department.  But the record shows that the supervisor’s drill had his name etched into the yellow casing of the drill itself.  Bowman acknowledged that he knew the supervisor had reported a drill missing.  The ULJ was entitled to disbelieve Bowman’s additional testimony that he never saw the supervisor’s name etched on the drill and to determine that Bowman committed theft.  Bowman’s act of theft constitutes disqualifying employment misconduct, and we affirm.   

            Affirmed.