Donovan Casey, Relator,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-0392

Donovan Casey,
Relator,

vs.

Wash N Fill Express of New Brighton, Inc.,
Respondent,

Department of Employment and Economic Development,
Respondent.

Filed November 15, 2021
Affirmed
Connolly, Judge

Department of Employment and Economic Development
File No. 40896024-3

Donovan Casey, Inver Grove Heights, Minnesota (pro se relator)

Wash N Fill Express of New Brighton, Inc., Shoreview, Minnesota (respondent employer)

Keri Phillips, Anne B. Froelich, St. Paul, Minnesota (for respondent department)

Considered and decided by Florey , Presiding Judge; Connolly, Judge; and Reyes,
Judge.

NONPRECEDENTIAL OPINION
CONNOLLY, Judge
Pro se relator challenges an unemployment law judge’s (ULJ) decision that he is
ineligible for unemployment benefits because he was discharged for employment
misconduct. We affirm.
FACTS
Relator Donovan Casey was employed as a full-time customer service representative
at respondent Wash N Fill Express of New Brighton, Inc., d/b/a Tank N’ Tummy (Tank N’
Tummy), a gas station convenience store. Under Tank N’ Tummy’s cash -handling
procedure, each shift begins with $200 in the cash register. As cash accumulates throughout
the day, employees are expected to remove each additional $200 from the cash register to
maintain a $200 balance in the register. The employees are “required” to bundle the bills,
note the amount removed from the register, sign the note, and drop the cash in the store safe.
Only the store’s manager and accountant have access to the safe.
On May 13, 2020, Tank N’ Tummy’s manager noticed that Casey’s cash drops were
not in the safe. The manager then reviewed video surveillance from Casey’s last shift, which
showed Casey placing his drops aside, rather than in the safe, and eventually putting them in
his pocket. When Casey came to work later that day, the manager confronted Casey about
the drops. Casey pulled the drops out of his wallet and gave them to the manager. Casey told
his manager that “he thought somebody was taking his money and he was coming up short
all the time, . . . so he was gonna hold them until he came and talked to me.” Casey was
“immediately” discharged for misappropriating employer funds.
Casey applied for unemployment benefits with respon dent Department of
Employment and Economic Development (department), and a department administrative
clerk issued a determination of ineligibility, stating that Casey was discharged because of
aggravated employment misconduct. Casey appealed that decision, and a de novo hearing
was conducted. At the hearing, testimony established that, during Casey’s employment at
Tank N’ Tummy, Casey was “occasionally” short on his register. According to Casey, he
suspected that someone was removing money from his cash drops and decided to hide his
cash drops instead of putting them into the safe to see if the register balanced when his cash
drops were not included. Casey claimed that he had done this twice before and that he “never
attempted or meant to try to steal anything.” Instead, Casey claimed that he was just “trying
to prove [his] innocence.”
The ULJ determined that “Tank N’ Tummy had a reasonable right to expect Casey to
follow its cash handling policies,” and that “[a]lthough Casey denied taking the store’s cash
off the property, he admits that he did not drop it into the safe as required.” The ULJ
determined that because Casey violated his employer’s reasonable policy, his conduct
constituted employment misconduct. Thus, the ULJ concluded that Casey was ineligible for
unemployment benefits. But the ULJ also determined that Casey’s actions “do not amount
to aggravated employment misconduct” because “a preponderance of the evidence does not
support a finding that Casey intended to permanently deprive Tank N’ Tummy of the money,”
rather “he always planned to return it.” Casey subsequently sought reconsideration with the
ULJ, who affirmed. This certiorari appeal follows.

DECISION
Casey challenges the ULJ’s decision that he is ineligible for unemployment benefits
because he engaged in employment misconduct. “[W]hether an employee engaged in
conduct that disqualifies him or her from unemployment benefits is a mixed question of
fact and law.” Wilson v. Mortgage Res. Ctr., Inc. , 888 N.W.2d 452, 460 (Minn. 2016) .
This court applies a de novo standard of review to a ULJ’s determination that a particular
act constitutes disqualifying conduct. Id.
Unemployment benefits are intended to provide financial assistance to persons who
have been discharged from employment “through no fault of their own.” Stagg v. Vintage
Place, Inc., 796 N.W.2d 312, 315 (Minn. 2011) (quotation omitted). Accordingly, a person
who has been discharged from employment based on “employment misconduct” is
ineligible to receive unemployment benefits. Minn. Stat. § 268.095, subd. 4(1) (2020) ;
Stagg, 796 N.W.2d at 314. “Employment misconduct” is defined by statute to mean “any
intentional, negligent, or indifferent conduct, on the job or off the job, that is a serious
violation of the standards of behavior the employer has the right to reasonably expect of
the employee.” Minn. Stat. § 268.095, subd. 6(a) (2020) . The statutory definition of
misconduct is exclusive such that “no other definition applies” to an applicatio n for
unemployment benefits. Id., subd. 6(e) (2020); see also Wilson, 888 N.W.2d at 458-59.
“An employer has a right to expect that its employees will abide by reasonable
instructions and directions.” Vargas v. Nw. Area Found. , 673 N.W.2d 200, 206 (Minn .
App. 2004), rev. denied (Minn. Mar. 30, 2004) . In general, “refusing to abide by an
employer’s reasonable policies and requests amounts to disqualifying misconduct.”
Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002) ; see also McGowan v.
Exec. Exp. Transp. Enters., Inc. , 420 N.W.2d 592, 596 (Minn. 1988) . “[W]hat is
reasonable will vary according to the circumstances of each case.” Vargas, 673 N.W.2d at
206 (quotation omitted). “When an employee’ s refusal to carry out a directive of the
employer is deliberate, calculated, and intentional, then the refusal is misconduct.”
Schmidgall, 644 N.W.2d at 806.
Casey argues that the ULJ erred in concluding that he engaged in employment
misconduct because he “showed great concern for [his] employment” by holding onto his
drop money until he felt it was safe to do the drop in light of the “different daily counts”
of the drop money. We disagree. In McDonald v. PDQ , a n employee was fired for
violating a company policy requiring cashiers to ring up purchases immediately. 341
N.W.2d 892, 893 (Minn. App. 1984). This court determined that the employee’s conduct
demonstrated a substantial disregard for his employer’s interest because the “employer has
the right to expect scrupulous adherence to procedu re by employees handling the
employer’s money.” Id.
Here, it is undisputed that Tank N’ Tummy had a policy requiring its employees to
make deposits in the store safe when the cash in the register exceeded $400. Under
McDonald, Tank N’ Tummy’s policy is reasonable because an employer has a right to
expect scrupulous adherence to procedure by employees handling the employer’s money.
See id. Casey admitted that on March 12, 2020, he failed to abide by this policy when he
did not deposit his drops in the safe during his shift, and he acknowledged that his conduct
was intentional. In fact, Casey admitted that he engaged in this conduct on two previous
occasions. Casey’s deliberate refusal to abide by his employer’s reasonable policy
constitutes employment misconduct.
Casey also argues that the ULJ erred in concluding that he is ineligible for
unemployment benefits because he was terminated in retaliation for his decision to apply
for partial unemployment benefits on May 10, 2020, after his hours were red uced due to
the COVID-19 pandemic. But Casey did not raise this argument before the ULJ at the de
novo hearing. It is well settled that issues raised for the first time on appeal are generally
deemed forfeited. See Thiele v. Stich , 425 N.W.2d 580, 582 ( Minn. 1988) (declining to
address issues raised for the first time on appellate review).
Casey acknowledges that he did not raise this issue at the de novo hearing but argues
that he was “discombobulated” at the de novo hearing and that it was the ULJ’s “ sworn
duty” to help him as a pro se party. To support his position, Casey cites Thompson v.
County of Hennepin, which stated that “ULJ’s have a duty to reasonably assist pro se parties
with the presentation of evidence and the proper development of the record.” 660 N.W.2d
157, 161 (Minn. App. 2003). But Thompson is easy to distinguish because, in that case,
the relator had “requested subpoenas to compel the witnesses’ attendance, [and] they did
not appear at the hearing.” Id. at 160. In contrast, Casey never requested subpoenas to
compel any witness testimony. Rather, he simply failed to raise his retaliation argument
below and otherwise present evidence in support of it. Although the rule on which
Thompson is based has since been amended to impose on the ULJ a duty to assist all parties,
Minn. R. 3310.2921 (2021), there is no indication the ULJ violated this rule. Instead, the
record reflects that the ULJ explained the procedure, asked Casey if he had any questions
about the procedure, and specifical ly asked Casey if he had “any response [to the
employer’s rebuttal testimony] before . . . the hearing” was concluded. Thus, the ULJ did
not fail to assist Casey by failing to inquire about a retaliation argument when there is no
indication that the ULJ was aware of this argument.
Finally, Casey appears to argue that the ULJ should have considered his retaliation
argument in his request for reconsideration. But Minnesota law provides that “[i]n deciding
a request for reconsideration, the [ULJ] must not consider any evidence that was not submitted
at the hearing, except for purposes of determining whether to order an additional hearing.”
Minn. Stat. § 268.105, subd. 2(c) (2020). Here, there is nothing in the record indicating that
Casey requested an additional hearing. Absent a request for an additional hearing, the ULJ
was prohibited by statute from considering any evidence that was not submitted at the de novo
hearing. See id.
Moreover, to the extent that Casey did request an additional hearing, Minnesota law
provides in relevant part that the ULJ must order an additional hearing only if the party shows
that evidence that was not submitted at the hearing “would likely change the outcome of the
decision and there was good cause for not having previously submitted that evidence.” Id.,
subd. 2(c)(1) (emphasis added). Casey claims that he simply forgot to mention his retaliation
argument or submit any evidence related to it. Simply forgetting is not good cause. And, as
the department points out, there is no indication that Casey’s statement would likely change
the outcome of the decision because the timeline of events indicates that Tank N’ Tummy
was not aware of Casey’s application for unemployment benefits. Casey, therefore, cannot
establish that the ULJ improperly failed to consider his retaliation argument in the request for
consideration.
In sum, the ULJ did not err by concluding that Casey engaged in employment
misconduct. Accordingly, Casey was properly denied unemployment benefits.
Affirmed.