Kent E. Todd, 390 N. Robert St., St. Paul, MN 55101 (for respondent Commissioner)

St. Mary's Medical Center, 407 E. 3rd St., Duluth, MN 55805 (respondent employer pro se)

Considered and decided by Klaphake, Presiding Judge, Anderson, Judge, and Foley, Judge.[*]

The commissioner's representative disqualified relator Elva F. White from receiving reemployment benefits, ruling that she was discharged for misconduct. Based on our review of the record, we conclude that while White's actions may have been grounds for dismissal by her employer, they do not constitute disqualifying misconduct under the reemployment insurance statute. Thus, we reverse.

The issue in this case is whether White committed misconduct within the meaning of Minn. Stat. § 268.095, subd. 6 (1998). See Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989) (whether employee's acts constitute misconduct is question of law subject to de novo review). The issue is not whether St. Mary's should have terminated White, but whether, now that she is unemployed, she should be denied reemployment compensation benefits as well. See Minn. Stat. § 268.095, subd. 4 (1998).

The reemployment insurance statute defines misconduct as an intentional disregard of "the employer's interest," "standards of behavior that an employer has the right to expect," or "the employee's duties and obligations to the employer." Minn. Stat. § 268.095, subd. 6; see also Tilseth v. Midwest Lumber Co., 295 Minn. 372, 374-75, 204 N.W.2d. 644, 646 (1973) (defining misconduct as "evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee * * * or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer.").

In determining whether an employee has committed disqualifying misconduct, this court considers:

(1) whether an employee deliberately violated standards of behavior which the employer has a right to expect of its employees, (2) whether an employee's conduct adversely affected the business or other employee's morale, and (3) whether an employee ignored past warnings.

Ress, 448 N.W.2d at 524 (citing Auger v. Gillette Co., 303 N.W.2d 255, 257 (Minn. 1981)). The employer has the burden to prove, by the greater weight of the evidence, that the employee has committed disqualifying misconduct. Lumpkin v. North Central Airlines, Inc., 296 Minn. 456, 459-60, 209 N.W.2d 397, 400 (1973).[1]

On Wednesday, September 2, 1998, White, employed by St. Mary's Hospital as a food service worker, took from St. Mary's a scoop of mashed potatoes and gravy and a cup of coffee in styrofoam containers. After White met with a supervisor who witnessed the incident, St. Mary's notified her that she was terminated for theft.

Narrowly construing the statute's disqualification provisions, we conclude that St. Mary's has not met it burden of proving that White's theft amounted to misconduct. See Ress, 448 N.W.2d at 523 ("On appeal, because of the unemployment compensation act's remedial nature, we narrowly construe the disqualification provisions."). St. Mary's did not prove that the food taken by White had more than de minimus value or that the theft had any adverse impact on its business or employee morale. Nor is there evidence that White ignored past warnings. To the contrary, her 15-year work record demonstrates good employment reviews and no disciplinary problems. These facts do not demonstrate that White substantially disregarded her employer's interests. While White's actions may have been grounds for discharge, those actions did not, as a matter of law, constitute misconduct so as to disqualify her from receiving reemployment insurance benefits.

Reversed.

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

[1] Initially, White was not forthcoming to her supervisor about her conduct. She claimed that she had paid for the items. Only later did she admit to not paying for them. But, because the basis for her discharge was theft rather than dishonesty, we consider only whether the act of taking the items constituted misconduct. See Lumpkin, 296 Minn. at 461, 209 N.W.2d at 401 (reason for employee's discharge, not collateral misconduct, determines whether employee is disqualified from receiving benefits).