Richard Christensen, Relator,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0052

Richard Christensen,
Relator,

vs.

Benedictine Living Community of Mora,
Respondent,

Department of Employment and Economic Development,
Respondent.

Filed August 28, 2017
Affirmed
Smith, John, Judge*

Department of Employment and Economic Development
File No. 34939226-3

Jacob G. Peterson, McKinnis & Doom, Cambridge, Minnesota (for relator)

Benedictine Living Community of Mora, Cambridge, Minnesota (respondent)

Lee B. Nelson, Minnesota Department of Employment and Economic Development,
St. Paul, Minnesota (for respondent department)

Considered and decided by Ross, Presiding Judge; Schellhas, Judge; and Smith,
John, Judge.

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

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U N P U B L I S H E D O P I N I O N
SMITH, JOHN, Judge
We affirm the decision of the unemployment -law judge (ULJ) that relator is
ineligible for unemployment benefits because he was discharged for employee misconduct.
FACTS
Relator Richard Christensen was employed as a maintenance technician by
respondent Benedictine Living Community of Mora (BLCM) from June 21, 2005 , to
September 8, 2016, when he was terminated due to employment misconduct.
In October 2015, relator was issued a written warning because he ate meals two to
three times a week at BLCM’s cafeteria without giving the kitchen staff a meal ticket to
indicate that he had paid for the meals. BLCM’s manager discussed the issue with relator,
who said he understood that he was not to take food from the kitchen without paying for
it, and relator was put on probation. Subsequently, relator was seen with a tray of food
four times in July and August , 2016. The manager checked the meal -ticket record and
found that relator had not turned in a meal ticket for any of these meals.
On September 8, 2016, BLCM’s manager met with relator to discuss whether relator
ate food out of the kitchen without paying. Relator claimed that the only food he ate was
a piece of chicken the kitchen staff offered him on August 31 , which he ate in the kitchen
in front of the kitchen staff. BLCM’s manager felt that relator was being dishonest and
discharged him.
Respondent D epartment of Employment and Economic Development (DEED)
issued a determination of ineligibility on October 4, 2016, denying unemployment benefits
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because relator was fired for employment misconduct. Relator appealed; the ULJ affirmed
the denial of unemployment benefits, concluding that relator had b een discharged for
employment misconduct, and again affirmed on reconsideration . Relator now appeals on
the ground that the ULJ improperly relied on hearsay evidence.
D E C I S I O N
“We review de novo a ULJ’s determination that an applicant is ineligible for
unemployment benefits. And we review findings of fact in the light most favorable to the
ULJ’s decision and will rely on findings that are substantially supported by the record.”
Fay v. Dep’t of Emp’t & Econ. Dev. , 860 N.W.2d 385, 387 (Minn. App. 20 15) (quotation
omitted). “This court . . . gives deference to the credibility determinations made by the
ULJ.” McNeilly v. Dept. of Emp’t & Econ Dev., 778 N.W.2d 707, 710 (Minn. App. 2010)
(quotation omitted) . “No burden of proof is allocated in unemplo yment-benefits
proceedings.” White v. Univ. of Minn. Physicians Corp ., 875 N.W.2d 351, 354 (Minn.
App. 2016) (citing Minn. Stat. § 268.069, subd. 2 (2016)).
I. The ULJ did not abuse its discretion in considering the hearsay testimony.
“Whether an employee engaged in conduct that disqualifies the employee from
unemployment benefits is a mixed question of fact and law.” White, 875 N.W.2d at 354.
“Whether the employee committed a particular act is a question of fact. We view the ULJ’s
factual findings in th e light most favorable to the decision, giving deference to the
credibility determinations made by the ULJ.” Skarhus v. Davanni’s Inc., 721 N.W.2d 340,
344 (Minn. App. 2006) (citations omitted). Relator argues that the ULJ improperly relied
on hearsay in finding that relator took full meals from the kitchen without paying for them.
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All competent, relevant and material evidence . . . that [is]
offered into evidence, [is] part of the hearing record. A [ULJ]
may receive any evidence that possesses probative value,
including hearsay , if it is the type of evidence on which
reasonable, pr udent persons are accustomed to rely in the
conduct of their serious affairs. . . . A [ULJ] is not bound by
statutory and common law rules of evidence.
Minn. R. 3310.2922 (emphasis added). We conclude that the hearsay evidence presented
in this case possessed probative value and was the type of evidence on which reasonable,
prudent persons are accustomed to rely in the conduct of their serious affairs.
Relator objects specifically to the testimony of BLCM’s manager and its culinary
service director. The manager testified that several employees told him they saw relator
eating a full tray of food on multiple days in July and August 2016. The manager checked
the specific dates to see if relator had turned in a ticket for food on those days and learned
that he had not. When the ULJ asked the manager “Who reported [the incidents] to you?”
the manager stated that he had told his staff that they would remain anonymous, but would
disclose the names if the ULJ wished to hear them. The ULJ said he would ask the culinary
services director.
When she testified, she stated that, prior to relator’s first incident report in October
2015, five cooks had reported to her that relator ask ed for trays of food even when he did
not have a ticket. She also testified that relator had attempted to take meals without paying
for them in 2016. The ULJ did not ask any further questions about the witnesses who
reported that relator was taking full meals or seek any further corroborating evidence.
Relator testified that “the cooks were very adamant that they would not even prepare
me a tray unless I gave them a ticket in advance. If there was a situation, they would not
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allow me to take the tray out of the kitchen until th ey received the meal ticket.” The ULJ
found that relator’s testimony was not credible because “[i]t was undisputed that, other
than this issue, there were no other concerns with [relator’s] employment. [Relator’s]
written warning in 2015 specifically states that [relator] was a good employee. If [relator]
had not been continuing to violate [ BLCM’s] policy, there is no readily apparent reason
that [BLCM] would discharge him.”
Relator relies on Posch v. St. Otto’s Home, 561 N.W.2d 564, 566 (Minn. App. 1997)
(concluding that “[d]eference to the hearsay evidence . . . in this case is unwarranted” and
that “[a]bsent . . . additional proof,” employer had not shown gross misconduct). A
determination of whether hearsay evidence should be given deference rests on whether the
evidence can be fo und to be “uniquely reliable.” Id. Hearsay evidence in the
unemployment-law context is uniquely reliable if the statements are corroborated by any
other hearsay statements, each statement is itemized with specific detail, the declarants do
not have a reason to fabricate complaints, and the declarants do not have reason to color
their observations to worsen the facts. Holton v. Gnan Trucking, Inc. , 379 N.W.2d 571,
574 (Minn. App. 1985)).
But Posch is distinguishable. Here, the ULJ specifically found that relator was a
good employee, BLCM had no reason to fabricate claims against him, and his alternative
explanation of BLCM’s motive for fabricating the claims was not credible. Further, relator
advanced no reason as to why the cooks would lie to the manager about relator taking food
without paying for it. Four separate reports of relator taking food without turning in a meal
ticket on specific dates were corroborated by the fact that there was no meal ticket entered
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on those dates, and relator had a history of taking food without turning in meal tickets.
Based on these findings, we conclude that the hearsay evidence in this case was more
reliable than that in Posch, and was properly considered by the ULJ.
Viewing the factual findings in the light most favorable to the decision, we conclude
that the hearsay evidence was the type of evidence “on which reasonable, prudent persons
are accustomed to rely in the conduct of their serious affairs.” Minn. R. 3310.2922. A
manager cannot be in all places at once and must rely on the observations of employees
who do not stood to gain from a termination. The testimony of the manager and the
culinary services director indicates that multiple witnesses could have provided evidence
if the ULJ had asked for it. The ULJ did not abuse its discretion in considering the hearsay
testimony to determine that relator was not eligible for unemployment benefits.
Because the hearsay evidence was properly considered by the ULJ, we conclude
that there was sufficient evidence for the ULJ to find that relator was discharged for
employee misconduct. An employee’s decision to knowingly violate a reasonable policy
of the employer is misconduct. Schmidgall v. FilmTec Corp, 644 N.W.2d 801, 806 (Minn.
2002). Stealing from an employer undermines the employer’s trust and has been found to
be grounds for employee misconduct. See Skarhus, 721 N.W.2d at 344 (concluding that a
cashier who st ole food once undermined her employer’s trus t). Taking food without
payment after being admonishe d and warned about doing so “displays clearly . . . a
substantial lack of concern for the employment.” Minn. Stat. § 268.095, subd. 6 (a)(2)
(2016).
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Because relator was already on probation for taking food without paying, was aware
of BLCM’s policy regarding paying for food from the kitchen, and was warned that further
taking of food without paying w ould result in his termination, we conclude that he was
discharged because of employee misconduct and is not entitled to unemployment benefits.
Affirmed.