Opinion
No. C9-00-1538.
Filed May 8, 2001.
Appeal from Minnesota Department of Economic Security, Agency File No. 399500
Teryl D. Marple, (pro se relator)
Kent E. Todd, (for respondent Minnesota Commissioner of Economic Security)
Considered and decided by Willis, Presiding Judge, Klaphake, Judge, and Amundson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
The commissioner's representative determined that relator was not eligible for unemployment benefits. She seeks review, contending that her acts did not constitute misconduct, that she was terminated unfairly after repeated acts of harassment and discrimination, and that the employer failed to abide by its policies. We affirm.
FACTS
Teryl D. Marple worked as a server for respondent employer Host International, Inc. (Host) in one of its restaurants. During February 2000, Host discharged Marple based on several instances of alleged cash shortages at the end of her shift. However, Host reinstated her employment pursuant to an agreement with Marple and her union. The agreement provided in part that Marple would receive training in cash handling procedures and included a "final written warning" which provided that until June 6, 2000, Marple acknowledges that losing or mishandling company funds (whether or not the money is paid back) is not acceptable and is ground for immediate termination.
On March 11, 2000, Marple could not reconcile her receipts with the cash she deposited with Host at the end of her shift. She ended the shift at least $100 short, but did not investigate. When Host questioned her about the shortfall on March 16, 2000, she was unable to explain. Host terminated her employment that day.
Marple filed for reemployment compensation benefits. After the department of economic security denied her claim, she filed an appeal. A hearing was held before an unemployment law judge who upheld the denial of benefits, finding that her acts constituted misconduct. Marple appealed to the commissioner, whose representative affirmed. This appeal followed.
Shortly after her filing, reemployment compensation was renamed unemployment insurance and reemployment compensation benefits were redesignated as unemployment benefits. 2000 Minn. Laws ch. 343.
DECISION
Our review in economic security cases is narrow . McGowan v. Executive Express Transp. Enter., 420 N.W.2d 592, 594 (Minn. 1988). When reviewing a decision of the commissioner's representative, we consider whether there is reasonable support in the evidence to sustain the decision. Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995). We review the findings of the commissioner's representative in the light most favorable to the decision. Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996).
An employee who is discharged for misconduct is disqualified from receiving unemployment compensation benefits. Minn. Stat. § 268.095, subd. 4(1) (2000). Whether particular acts constitute misconduct is a question of law on which this court is "free to exercise its independent judgment." Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989). Misconduct disqualifying an employee from receiving unemployment benefits includes
(1) any intentional conduct, on the job or off the job, that disregards the standards of behavior that an employer has the right to expect of the employee or disregards the employee's duties and obligations to the employer; or
(2) negligent or indifferent conduct, on the job or off the job, that demonstrates a substantial lack of concern for the employment.
Minn. Stat. § 268.095, subd. 6(a) (2000). Even "[a] single incident where an employee deliberately chooses a course of action adverse to the employer can constitute misconduct." Ress, 448 N.W.2d at 524 (citation omitted).
An "employer has the right to expect scrupulous adherence to procedure by employees handling the employer's money." McDonald v. PDQ, 341 N.W.2d 892, 893 (Minn.App. 1984). In McDonald, we upheld a decision to deny benefits to a former employee who, after a previous violation and a further warning, violated a company policy requiring cashiers to ring up purchases immediately. Id.
Marple's violation of both Host's cash handling policy and her reinstatement agreement constitutes misconduct that justifies denying unemployment benefits. Marple violated company policy and the terms of the agreement by failing to reconcile her accounting at shift's end with her manager. A $100 discrepancy existed which she was unable to explain. Although Marple argues that she placed the correct amount in the deposit bag at the end of her shift and that she had simply recorded the wrong amount on the bag, the commissioner's representative reasonably relied on evidence to the contrary. Thereafter Marple took no steps to resolve or correct the deficiency, and was discharged pursuant to the prohibition in the reinstatement agreement against losing or mishandling company funds.
Marple next argues that Host did not follow the procedures in its own cash handling manual for dealing with her last policy violation. She contends that other employees were able to make up shortages. These arguments, however, must fail because the reinstatement agreement, and not Host's general policies, applied to Marple's conduct at the time of her discharge. That agreement allowed Host to discharge her for one instance of mishandling company funds, whether or not she repaid any shortage.
Marple also claims that she was harassed by her employer. Neither Marple's filings with the department, nor the evidence at the hearing presented any allegations that she was harassed. Marple failed to raise this argument with the department and first raises it on appeal. A reviewing court may only consider those issues that the record shows were presented and considered by the trial court in deciding the matter before it. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). We therefore decline to address this issue.