Glenda Brush, 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This opinion will be unpublished and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
A17-1326

Glenda Brush,
Relator,

vs.

Holiday Stationstores, Inc.,
Respondent,

Department of Employment and Economic Development,
Respondent.

Filed April 23, 2018
Affirmed
Rodenberg, Judge

Department of Employment and Economic Development
File No. 35523499-3

Glenda J. Brush, Aitkin, Minnesota (pro se relator)

Holiday Stationstores, Inc., St. Louis, Missouri (respondent-employer)

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

Considered and decided by Smith, Trac y M., Presiding Judge; Bjorkman, Judge;
and Rodenberg, Judge.

2
U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
Relator Glenda Brush appeals from an unemployment-law judge’s (ULJ)
determination that relator was terminated from her job for employment misconduct,
rendering her ineligible for unemployment benefits. We affirm.
FACTS
Relator worked for Holiday St ationstores Inc. (Holiday) in Aitkin as a full-time
cashier and shift lead from February 22, 2016 to March 23, 2017. Holiday’s policy requires
that “All Fresh Bakery Products are to be pla ced on sale from 4 p.m. to 10 p.m. daily.”
Cashiers apply this discount by using the “Bakery ½ price” button on the cash register.
Store policy also requires that “at 10 p.m. a ll product should be removed from the bakery
case,” inventoried as “staled product,” and thrown away. Staled product is not to be given
away, taken home, or consumed without being purchased. Relator was informed of these
policies when she was hired as part of her training, and the policie s were part of the
employee handbook. Relator ag rees that she was aware of the policies. Employees are
eligible to apply a ten-percent discount to their purchases in the store.
Relator’s manager, Margaret Moneta, watc hed video recordings of the store from
the evening of March 15, 2017. Moneta noticed that, after 4:00 p.m., relator took two rolls
to the cash register. Rolls co st $1.29 and donuts cost 99 ce nts before applying the half-
price-after-4 p.m. discount and the employee di scount. Relator rang up the two rolls as

3
one donut and paid 44 cents (99 cents ÷ 2 = 49.5 cents; 90% of 49.5 = 44.55 cents).1 She
ate one of the rolls, and put the other roll into her purse. The pastries were reduced to half
price because of the time of day, but Ho liday has no buy-one-get-one-free policy for
pastries.
Relator stated that she often saw other employees either give away donuts or
discount them. She testified that she rang up her two rolls as one donut, and as a buy-one-
get-one-free purchase, based on her belief, gleaned from one year of employment at
Holiday, that this was acceptable. Relator agrees that she pa id 44 cents for the two rolls,
ate one, and put the second into her purse.
While watching the March 15 video, Moneta also noticed that relator removed the
remaining pastries from the bakery case shortly before 10:00 p.m., bagged the pastries as
staled product, and handed the bag to two customers. Those customers left the store with
the bag and entered a vehicle. They did not pay for the pastries. Relator testified that the
customers have, in the past, taken staled product out to the dumpster for her. She gave the
bag to them intending that they would do so on this occasion. Relator admitted that she
does not know what the customers do with the staled product on these occasions, but stated
that she trusts the customers to throw away the staled product. It was never her intention
to give the staled product to customers for personal consumption.

1 The Holiday cash registers record keystrokes, and a record of transactions can be printed
out. The transaction journal pr ovided verifies that relator paid for only one donut at the
discounted-after-4:00 p.m. price.

4
Moneta terminated relator’s employment on March 23, 2017, because she paid only
44 cents for two rolls for which she should have paid $1.16, and because she gave staled
product to customers. Relator then applied for unemployment insurance. Holiday advised
the Department of Employment and Economic Development (DEED) by letter that relator
had been terminated for violating a reasonable and known policy. DEED determined that
relator was ineligible for unemployment benefits becaus e she was terminated for
employment misconduct. Relator appealed. A telephone hearing with the ULJ began on
May 8, 2017, and was continued to May 19 to allow time for Holiday to submit a copy of
the March 15 video and for relator to submit a statement from a former coworker. Before
the resumed hearing date, Ho liday submitted the March 15 video and the cash-register-
transaction journal and relator submitted writ ten statements from a former coworker and
one of the customers depicted on video, along with various other documents.
The ULJ found that relato r was terminated for empl oyment misconduct and was
therefore ineligible to receive unemployment benefits. Relator requested reconsideration,
and the ULJ affirmed the previous decision.
This certiorari appeal followed.
D E C I S I O N
An employee who is discharged for employment misconduct is ineligible to receive
unemployment benefits. Minn. Stat. § 268.095 , subd. 4(1) (2016). “The question of
whether an employee engaged in conduct that disqualifies him or her from unemployment
benefits is a mixed question of fact and law.” Wilson v. Mortg. Res. Ctr., Inc., 888 N.W.2d
452, 460 (Minn. 2016). Whether an employee “committed a particular act is a question of

5
fact.” Skarhus v. Davanni’s Inc. , 721 N.W.2d 340, 344 (Minn. App. 2006). We review
factual findings “in the light most favorable to the decision and will not disturb those
findings as long as there is ev idence in the record that reasona bly tends to sustain them.”
Wilson, 888 N.W.2d at 460 (quotations omitted). “Whether a particular act constitutes
disqualifying conduct is a question of law we review de novo.” Id. “Credibility
determinations are the exclusive province of the ULJ and will not be disturbed on appeal.”
Skarhus, 721 N.W.2d at 345. We may only “reverse or modify the [ULJ’s] decision if the
substantial rights of the [rela tor] may have been prejudiced because the findings,
inferences, conclusion, or decision” violate constitutional provisions, exceed respondent’s
statutory authority, were made pursuant to an unlawful procedure, are based on an error of
law, are unsupported by the reco rd evidence, or are arbitrar y or capricious. Minn. Stat.
§ 268.105, subd. 7(d) (2016).
The ULJ determined that, on March 15, relator took two rolls and paid too little for
them. The ULJ found that, had relator priced the rolls correctly, she would have paid $1.16
total—65 cents for each roll at half price, plus the ten-percent employee discount. Relator
actually paid 44 cents. The ULJ also found that relator gave a bag of staled product to a
customer in violation of Holi day policy. Relator was termin ated on March 23 as a result
of these incidents. These factual findings ar e supported by the record, and are not really
even in dispute.
We next consider de novo whether re lator’s conduct constitutes employment
misconduct. Wilson, 888 N.W.2d at 460. Appellant argues that her actions do not
constitute employment misconduct because sh e had learned that it was common practice

6
at the store for employees to buy one pastry and get one free, and she gave the bag of
pastries to the customers intending that they would throw them away for her.
Employment misconduct is “any intentional, negligent, or indifferent conduct, on
the job or off the job that displays clearly: (1) a serious violation of the standards of
behavior the employer has the right to r easonably expect of the employee; or (2) a
substantial lack of concern for the employment.” Minn. Stat. § 268.095, subd. 6(a) (2016).
The governing statutes also provide that “[ i]f the conduct for which the applicant was
discharged involved only a single incident, that is an important fact that must be considered
in deciding whether the conduct rises to the level of employment misconduct.” Minn. Stat.
§ 268.095, subd. 6(d) (2016).
We have held that stealing from an employer undermines the employer’s trust in the
employee and constitutes employment misconduct. Skarhus, 721 N.W.2d at 344. In
Skarhus, we declined to “focus solely on the minimal value of the stolen food,” recognizing
that such an analysis would require extensiv e fact-finding and “disregard[s] the type of
adverse impact that is not readily quantifiable.” Id. A cashier’s duties include handling
the employer’s and customers’ money and accu rate accounting of items sold. Following
any mishandling of money, the employer may no longer be able to trust the employee with
those responsibilities. Id. In such cases, the employer’s “ability to assign the essential
functions of the job to its employee [is] undermined by the employee’s conduct” and the
“theft constitutes a single act that ha[s] a significant adverse impact on the employer.” Id.
Here, it is undisputed that relator took two rolls and paid less for them than Holiday
policy requires. The ULJ found that relator should have pa id $1.16 for her two rolls;

7
Relator admitted that she paid only 44 cents. That the diffe rence between the price paid
and the actual price is less than a dollar does not affect our analysis. Under Skarhus, we
cannot consider the minimal value of the items taken.
Appellant argues that she rang up her purchase as she did based on her
understanding of past practi ce. But the ULJ expressly found relator’s testimony not
credible. As stated above, “[ c]redibility determinations are the exclusive province of the
ULJ and will not be di sturbed on appeal.” Skarhus, 721 N.W.2d at 344. Moreover, the
ULJ found that relator could not have known what a customer would do with the bag of
staled product and that store policy prohibited giving away staled product. The record also
supports these findings.
Even if the events of March 15 are considered a single incident, having occurred on
one day, we held in Skarhus that even a single act of th eft “ha[s] a significant adverse
impact on the employer.” Id. The record supports the ULJ’ s determination that relator’s
conduct “seriously violated the employer’s reasonable expectations and showed a
substantial lack of concern for her employm ent, amounting to employment misconduct.”
The ULJ correctly noted that the only issue is “whether the behavi or in which [relator]
engaged (not others) amounted to employment misconduct.” And we agree with the ULJ
that, under settled Minnesota law, relator’s conduct amounted to employment misconduct.
Relator appears to argue that the ULJ impr operly considered incidents other than
those occurring on March 15. The ULJ’s Findi ngs of Fact and Decision did reference an
incident from January 1, 2017 in the fact se ction. But it does not appear that the ULJ
considered that incident at all in reaching th e conclusion that rela tor was terminated for

8
employment misconduct. Instead, the ULJ’s analysis considered only the March 15
incidents. In her brief, re lator also identifies a number of “inconsistencies.” These
“inconsistencies” were appropriately resolved by the ULJ’s credibility findings and, as
noted, those issues are properly resolved by the ULJ, who heard the testimony. Wilson,
888 N.W.2d at 460.
Finally, relator states that Holiday should have enga ged in “corrective[,] not
punitive action resulting in loss of full time employment.” “[T]he focus of the inquiry [in
an unemployment benefits case] is the employ ee’s conduct, not that of the employer.”
Stagg v. Vintage Place Inc., 796 N.W.2d 312, 316 (Minn. 2011). It is not our proper role
to review the level of discipline an employer chooses for employee misconduct. We review
the ULJ’s determination that re lator is ineligible for unempl oyment benefits because of
employment misconduct. On this record, the ULJ did not reversibly err.
We recognize that the value of the pastries involved here was minimal, and that the
resulting complete disqualification from receiv ing unemployment benef its is harsh. But
the law has long recognized that even a single and low-va lue theft by an employee
responsible for handling money is considered employment misconduct. We apply the law
as it is, and not as we would prefer it to be in a particular case. Tereault v. Palmer, 413
N.W.2d 283, 286 (Minn. App. 1987), review denied (Minn. Dec. 18, 1987).
Affirmed.