STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1368

Adam B. Emmons,
Relator,

vs.

Rivers Hotel Company, Inc.,
Respondent,
Department of Employment and Economic Development,
Respondent.

Filed June 12, 2007

Affirmed

Stoneburner, Judge

Department of Employment and Economic Development

File No. 5710 06

Adam B. Emmons, 1380 Homer Road, Apt. 202, Winona, MN 55987 (pro se relator)

Lee B. Nelson, Linda A. Holmes, Department of Employment and Economic Development, Suite 200, 1st National Bank Building, 332 Minnesota Street, St. Paul, MN 55101-1351 (respondent Department)

Rivers Hotel Company, Inc., Riverport Inn & Suites, 356 East Sarnia Street, Winona, MN 55987-3852 (respondent employer)

Considered and decided by Stoneburner, Presiding Judge; Worke, Judge; and Parker, Judge.*

U N P U B L I S H E D O P I N I O N

STONEBURNER, Judge

In this certiorari appeal, relator challenges the decision of the unemployment law judge (ULJ) that he was discharged for employment misconduct. We affirm.

FACTS

Relator Adam Emmons was employed by respondent Rivers Hotel Company, Inc. (hotel) as a lead bartender at The Green Mill Restaurant and Bar in Winona (restaurant) from August 18, 2005, until March 20, 2006. Emmons’s annual salary was $24,000 plus tips for 45-50 hours of work per week. Emmons was discharged on March 20, 2006, for leaving work during his shift when the restaurant was busy, then demanding an equal share of the tips from other bartenders, and for ringing up his sales under other people’s names in order to avoid paying taxes on his tips.

Emmons requested unemployment benefits through respondent Minnesota Department of Employment and Economic Development (DEED). A department adjudicator initially determined that Emmons was discharged for reasons other than employment misconduct and was qualified for benefits. The hotel appealed the determination, and an unemployment law judge (ULJ) conducted a telephone hearing on the appeal.

At the hearing, restaurant manager Jeremy McDeid testified that in November 2005, an employee reported to him that Emmons had left work for several hours in the middle of a shift without punching out or informing anyone that he was leaving. McDeid testified that on New Year’s Eve 2005, several employees complained to him that Emmons was absent from work between 5:00 p.m. and 9:00 p.m. and then had demanded an equal share of tips for the evening. McDeid learned that Emmons’s absence on New Year’s Eve had resulted in complaints from several customers about delays in filling drink orders.

Michael Rivers, the hotel’s president, testified that a month before Emmons was discharged, Rivers spoke with him regarding complaints he had received from other bartenders that Emmons had disappeared during the middle of his shifts a number of times and then demanded an equal share of the tips despite not working the whole shift. Emmons responded to Rivers that he would try to do better, and there was no further problem with Emmons leaving work during his shift.

Rivers testified that Emmons was discharged in part for ringing up his sales under other people’s names in order to avoid taxes on his tips. The restaurant required bartenders to ring up their sales on a computer using personal identification numbers. At the end of each day, the computer issues a report for each bartender indicating the number of credit-card transactions the bartender had during a shift and the amount of tips from those transactions. The hotel used this information to report the tip earnings of each bartender to the IRS. For a time during Emmons’s employment, bartenders could also ring up transactions under a general code using a “PM bar” key, and the hotel paid the taxes on the tips from “PM bar” sales. McDeid testified that this key was mainly used for takeout orders or services that did not involve the restaurant.

McDeid testified that at the end of January 2006, he discovered that Emmons had been regularly and frequently entering his sales using the “PM bar” key rather than his own code. McDeid spoke with Emmons and told him to stop using this key to ring up his sales, because it was creating more taxes for the company and reduced the amount of tips on which Emmons was taxed. Emmons did not agree that he should have to stop using the “PM bar” key, so McDeid reported the incident to Michael Rivers. Emmons continued to ring up sales using the “PM bar” key. At the end of February 2006, the hotel removed the “PM bar” key from the computer system.

Rebecca Schmidt, a bartender who worked with Emmons, testified that on March 18, 2006, she noticed that Emmons had rung up a number of his sales using her name and another bartender’s name rather than his own. Schmidt, concerned that she would be liable for taxes on tips that Emmons received, reported the incident to McDeid. Emmons was discharged two days later.

Following the hearing, the ULJ concluded that Emmons’s repeated use of the “PM bar” key, after having been instructed not to use it, and recording his transactions under the names of other employees violated the employer’s established procedures, displayed a serious disregard for the standards of behavior the employer had a right to reasonably expect of him, and constituted misconduct, disqualifying Emmons from receiving unemployment benefits. The ULJ concluded that Emmons’s absences from work did not constitute misconduct because this conduct stopped after Emmons was warned about it.

Emmons requested reconsideration, and the ULJ affirmed the decision. This certiorari appeal followed.

D E C I S I O N

On certiorari appeal, this court may affirm the ULJ’s decision, remand it for further proceedings, or reverse or modify it if the employee’s substantial rights “may have been prejudiced because the findings, inferences, conclusion, or decision are . . . affected by [an] error of law” or “unsupported by substantial evidence in view of the entire record as submitted.” Minn. Stat. § 268.105, subd. 7(d)(4), (5) (2006).

“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 v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).

An employee who is discharged for employment misconduct is disqualified from receiving unemployment benefits. Minn. Stat. § 268.095, subd. 4(1) (Supp. 2005). Employment misconduct is “any intentional, negligent, or indifferent conduct, on the job or off the job that (1) displays clearly a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee, or that (2) displays clearly a substantial lack of concern for the employment.” Minn. Stat. § 268.095, subd. 6(a) (2004).

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. Misconduct is a “pattern of failing to follow policies and procedures and ignoring directions and requests.” Gilkeson v. Indus. Parts & Serv., Inc., 383 N.W.2d 448, 452 (Minn. App. 1986). Refusal to abide by an employer’s reasonable policies and requests ordinarily amounts to employment misconduct. McGowan v. Executive Express Transp. Enters., 420 N.W.2d 592, 596 (Minn. 1988).

Emmons argues that he was unjustly terminated from his employment because he “was never warned that there were any ‘issues’ that needed to be addressed” regarding his conduct, making it “impossible for [him] to make any improvements or work on any problem areas.” The relevant inquiry is not whether Emmons’s termination from employment was unjust, but whether he engaged in “employment misconduct” as defined in Minn. Stat. § 268.095, subd. 6(a), and is consequently disqualified from receiving unemployment benefits. See Brown v. Nat’l Am. Univ., 686 N.W.2d 329, 332 (Minn. App. 2004) (stating that “[w]e are not concerned with whether or not the employee should have been discharged but only with the employee’s eligibility for benefits after termination of employment), review denied (Minn. Nov. 16, 2004). Whether Emmons did or did not receive a warning about his conduct is not determinative of whether he engaged in employment misconduct. See Auger v. Gillette Co., 303 N.W.2d 255, 257 (Minn. 1981) (stating that warning was not essential to demonstrate that the employees acted in willful disregard of the employer’s interest). Furthermore, despite Emmons’s argument, the record shows that Emmons was warned about his use of the “PM bar” key but continued to use the key until the hotel had it removed it from the system. We conclude that the ULJ did not err in determining that Emmons’s refusal to abide by the restaurant’s reasonable request regarding his use of the “PM bar” key was employment misconduct. Soussi v. Blue & White Serv. Corp.,498 N.W.2d 316, 318 (Minn. App. 1993) (stating that the employee’s refusal to accede to a request that is reasonable and does not impose an unreasonable burden on the employee constitutes misconduct).

The record also supports the ULJ’s determination that ringing up sales under other employees’ identification numbers violated the employer’s established procedures and constituted misconduct. Emmons argues that the ULJ “may have had a misunderstanding” of the testimony at the hearing because Emmons denied that he deliberately rang up sales under other employees’ names and explained that during busy times, employees frequently entered sales under the name already on the screen rather than taking the time to type in a different number. But the ULJ did not believe Emmons’s testimony, and this court will not “second-guess the factfinder’s determinations or reweigh the evidence where the findings are supported by the record.” Reddmann v. Kokesch Trucking, Inc.,412 N.W.2d 828, 830 (Minn. App. 1987).

Because the ULJ did not base the finding of misconduct on Emmons’s absences from work, we do not reach Emmons’s arguments about those incidents. See Sivertson v. Sims Sec., Inc., 390 N.W. 2d 868, 871 (Minn. App. 1986) (declining to consider an employee’s claim that was not relevant to whether the employee’s actions constituted employment misconduct), review denied (Minn. Aug. 20, 1986).

Affirmed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.