Minnesota Court of Appeals, 2011 A Minnesota appellate court affirmed an unemployment-law judge's determination that a waitress's single, inadvertent failure to request identification from a customer ordering alcohol was not employment misconduct disqualifying her from unemployment benefits.

A Minnesota appellate court affirmed an unemployment-law judge's determination that a waitress's single, inadvertent failure to request identification from a customer ordering alcohol was not employment misconduct disqualifying her from unemployment benefits.

Dourney v. CMAK Corp.
Minnesota Court of Appeals · Decided April 5, 2011 · Hudson, Peterson, Toussaint
796 N.W.2d 537; 2011 Minn. App. LEXIS 29; 2011 WL 1236140 (North Western Reporter, Second Series)

Outcome: Affirmed for appellee.

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Counsel

Joan Dourney, Shoreview, MN, pro se respondent., Deno Walter Berndt, Berndt Law Offices, PLLC, Minneapolis, MN, for relator., Lee B. Nelson, Amy R. Lawler, Kathryn Short (certified student attorney), Department of Employment and Economic Development, St. Paul, MN, for department.

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Dourney v. CMAK Corp.

What happened

The facts of the case, in plain language.

CMAK Corp. had employed Joan Dourney as a waitress in a restaurant that served alcohol since 1999, and during lunchtime in January 2010 she served alcoholic drinks to two customers without asking either for identification.

Immediately after serving the drinks, Dourney returned to the table and carded both customers, took away the woman's drink when she had no identification, and the owner then sent her home and discharged her for failing to card the young woman.

Dourney testified that she always cards customers, did not know why she failed to do so that day, attributed the lapse to the extra concentration required by a new menu, and had never previously been written up or reprimanded for serving underage customers or failing to request identification.

Minn.Stat. § 268.095, subd. 6(b) expressly provides that, regardless of the subdivision 6(a) definition, inefficiency or inadvertence is not employment misconduct.

The ULJ found no continuing neglect, intentional wrongdoing, or inappropriate behavior, no evidence the customer was actually too young, and no indication Dourney put the employer's business at any risk.

What the court decided

CMAK Corp. discharged longtime waitress Joan Dourney after she served an alcoholic drink to a customer without first requesting identification; she immediately re-checked both customers and took back the drink when the woman had none, but the owner fired her anyway. A state adjudicator deemed the discharge employment misconduct and denied benefits, but an unemployment-law judge (ULJ) — an administrative official who decides eligibility — ruled that Dourney was discharged for reasons other than employment misconduct and was eligible for benefits. On the employer's certiorari appeal, the Minnesota Court of Appeals affirmed. Although negligent conduct can constitute employment misconduct, the statute expressly excludes "inadvertence" — conduct marked by unintentional lack of care — and the court concluded that Dourney's single instance of forgetting to card a customer, with no prior record and no shown risk to the business, was inadvertence rather than misconduct.

  1. Conduct marked by unintentional lack of care is inadvertence, and Minn. Stat. § 268.095, subd. 6(b) expressly excludes inadvertence from employment misconduct regardless of whether the conduct otherwise satisfies the negligent-conduct definition in subdivision 6(a). (*540)
  2. A single, isolated failure to request identification from a customer ordering alcohol constitutes inadvertence rather than employment misconduct when the employee has no prior record of such failures, no continuing neglect or intentional wrongdoing is evident, and no evidence shows the customer was underage or the employer's business was put at risk. (*540)
  3. Whether an employee committed a particular act is a question of fact reviewed for substantial evidence in the light most favorable to the decision, while whether that act constitutes employment misconduct is a question of law reviewed de novo. (*539)

How the court reached its decision

The court's reasoning, step by step.

Whether a waitress's failure to request identification from a customer who ordered an alcoholic drink constituted employment misconduct within the meaning of Minn. Stat. § 268.095, subd. 6. The ULJ found that Dourney simply forgot to card the customer: a single incident involving the companion of a patron known to be old enough to drink, with no continuing neglect, intentional wrongdoing, or inappropriate behavior, no evidence the customer was actually underage, and no indication the employer's business was put at risk. Although negligent conduct can constitute employment misconduct, the court concluded that conduct marked by unintentional lack of care is inadvertence, so even if Dourney's lapse met the subdivision 6(a) definition, the plain statutory language of subdivision 6(b) excluded it from misconduct. Because Dourney's failure to card the customer was inadvertence, she did not commit employment misconduct and is eligible to receive unemployment benefits; the ULJ's decision was affirmed.

Whether the ULJ's finding that Dourney simply forgot to card the customer was supported by substantial evidence. The finding that Dourney forgot to card the customer was supported by her testimony that she always cards customers and did not know why she failed on this occasion, that taking the order under a new menu required greater concentration than normal, and that she had never previously been written up or reprimanded for serving underage customers or failing to request identification. The ULJ's finding that Dourney simply forgot to card the customer was supported by substantial evidence, establishing that the lapse was unintentional.

Key quotes from the opinion

Notable passages from the opinion, in the court's own words.

“Whether an employee’s act constitutes employment misconduct is a question of law, which we review de novo.”
De novo review applies to whether conduct constitutes employment misconduct — *539
“If 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 under paragraph (a).”
Statutory direction that a single-incident discharge is an important consideration — *540
“We have a single incident in which the applicant recognized an individual known to be old enough to drink, and forgot to card the companion until prompted.”
ULJ's characterization of the lapse as a single, prompted forgetting with no demonstrated risk — *540
“Because Dourney’s forgetting to card the customer was conduct marked by unintentional lack of care, the conduct was inadvertence.”
Court's conclusion that the lapse was inadvertence excluded by statute from misconduct — *540

Cases the court relied on

Earlier decisions the court cited as authority for its ruling.

  • Schmidgall v. FilmTec Corp. (644 N.W.2d 801 (Minn. 2002)) — Supplies the framework that whether an employee committed a particular act is a fact question while whether the act constitutes employment misconduct is a question of law reviewed de novo.
  • Skarhus v. Davanni's Inc. (721 N.W.2d 340 (Minn. App. 2006)) — Establishes that factual findings in unemployment-benefit appeals are viewed in the light most favorable to the decision and that the ULJ's credibility determinations receive deference.
  • Klingbeil v. Truesdell (256 Minn. 360, 98 N.W.2d 134 (Minn. 1959)) — Provides that the standard of conduct required by law is not perfect conduct, supporting the distinction between ordinary negligence and an inadvertent lapse.
  • Minnesota Center for Environmental Advocacy v. Minnesota Pollution Control Agency (644 N.W.2d 457 (Minn. 2002)) — Supplies the definition of substantial evidence against which the ULJ's finding that Dourney simply forgot to card the customer was measured.

Minnesota statutes cited

Sections of the Minnesota Statutes this opinion cites.

Cases that cite this one

18 later published cases cite this decision. The 17 that cite it most often are listed here.

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Full opinion

The complete text of the court's opinion as published.

Opinion of the Court

OPINION

PETERSON, Judge.

Relator employer challenges the decision by an unemployment-law judge (ULJ) that its former employee, who was discharged for a single instance of failing to request identification from a customer who ordered an alcoholic drink, did not commit employment misconduct within the meaning of Minn.Stat. § 268.095, subd. 6. We affirm.

FACTS

Since 1999, relator CMAK Corp. employed respondent Joan Dourney as a waitress in a restaurant that served alcohol. During lunchtime in January 2010, a young man and a young woman came into the restaurant and sat down together. The young man was a former employee of the restaurant, and Dourney knew that he was older than 21. Dourney testified that the woman looked like she was 23 or 24 years old. Both customers ordered food and alcoholic drinks from Dourney.

Dourney had the drinks made and brought them to the table. After Dourney served the drinks, the restaurant’s owner asked Dourney if she had carded the customers. Dourney apologized and said that she had not. Dourney immediately returned to the table and carded both people. The woman said that she did not *539have identification with her, so Dourney took away her drink. The owner then told Dourney to go home and later called Dour-ney and discharged her for failing to card the young woman.

Dourney filed a claim for unemployment benefits with respondent Minnesota Department of Employment and Economic Development (DEED). A department adjudicator determined that Dourney was discharged for employment misconduct and, therefore, ineligible for unemployment benefits. Dour-ney brought an administrative appeal to a ULJ, who conducted an evidentiary hearing by telephone.

At the hearing, Dourney testified that the restaurant had a new menu and that, when the customers were ordering, Dour-ney was trying to figure out exactly what they were ordering. Dourney testified that she always cards people and that she did not know why she did not do so that day. Dourney also testified that she had never previously been written up or reprimanded for serving underage customers or fading to request identification.

By findings of fact and decision issued March 11, 2010, the ULJ determined that Dourney was discharged for reasons other than employment misconduct and, therefore, is eligible to receive unemployment benefits. The employer requested reconsideration, and the ULJ affirmed the March 11, 2010 decision. This certiorari appeal followed.

ISSUE

Was Dourney’s failure to request identification from the customer employment misconduct within the meaning of Minn. Stat. § 268.095, subd. 6?

ANALYSIS

This court reviews a ULJ’s decision to determine whether substantial rights were prejudiced because the findings, inferences, conclusion, or decision are unsupported by substantial evidence in view of the record as a whole or affected by an error of law. Minn.Stat. § 268.105, subd. 7(d) (2008). Substantial evidence is “(1) such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; (2) more than a scintilla of evidence; (3) more than some evidence; (4) more than any evidence; or (5) the evidence considered in its entirety.” Minn. Ctr. for Envtl. Advocacy v. Minn. Pollution Control Agency, 644 N.W.2d 457, 466 (Minn. 2002). This court views factual findings in the light most favorable to the decision and defers to the ULJ’s credibility determinations. Skarhus v. Davanni’s Inc., 721 N.W.2d 340, 344 (Minn.App. 2006).

An employee who is discharged for employment misconduct is ineligible to receive unemployment benefits. Minn. Stat. § 268.095, subd. 4(1) (2008). Whether an employee committed misconduct is a mixed question of fact and law. Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002). Whether the employee committed a particular act is a fact question, which we review in the light most favorable to the decision and will affirm if supported by substantial evidence. Skarhus, 721 N.W.2d at 344. Whether an employee’s act constitutes employment misconduct is a question of law, which we review de novo. Schmidgall, 644 N.W.2d at 804.

(a) Employment misconduct means 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 reasonably expect of the employee; or
(2) a substantial lack of concern for the employment.
*540(b) Regardless of paragraph (a), the following is not employment misconduct:
[[Image here]]
(2) inefficiency or inadvertence[.J

Minn.Stat. § 268.095, subd. 6 (Supp. 2009). “If 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 under paragraph (a).” Id., subd. 6(d). The statutory definition of employment misconduct “is exclusive and no other definition applies.” Id., subd. 6(e).

Under Minn.Stat. § 268.095, subd. 6(a), employment misconduct includes negligent conduct. Negligence is the failure to use the care that a reasonable person would use in the same or similar circumstances. 4 Minnesota Practice, CIVJIG 25.10 (2006). A person is negligent when she fails to do something that a reasonable person would do. Id. But “[t]he standard of conduct required by law is not perfect conduct.” Klingbeil v. Truesdell, 256 Minn. 360, 366, 98 N.W.2d 134, 139 (1959).

Even if a reasonable person would have carded the customer whom Dourney failed to card and Dourney’s conduct could be considered negligent, Minn.Stat. § 268.095, subd. 6(b), expressly provides that inadvertence is not employment misconduct. Inadvertence is defined as follows: “1. The quality of being inadvertent. 2. An instance of being inadvertent; an oversight or a slip.” The American Heritage Dictionary of the English Language 910 (3d ed. 1992). Inadvertent is defined as “[n]ot duly attentive” or “[mjarked by unintentional lack of care.” Id.

The ULJ explained the conclusion that Dourney did not commit employment misconduct as follows:

During [Dourney’s] employment she did receive training from the employer as to the manner of seeking identification to purchase alcohol. No issues arose with her performance in that regard until January of 2010....
... In the case at hand we have no evidence of any continuing neglect, intentional wrongdoing, or inappropriate behavior. We have a single incident in which the applicant recognized an individual known to be old enough to drink, and forgot to card the companion until prompted. We have no evidence that the individual was actually too young, and no indication that Dourney actually put the employer’s business at any risk.

The ULJ’s finding that Dourney simply forgot to card the customer is supported by substantial evidence, including Dour-ney’s testimony that she always cards people and did not know why she had not done so in this instance and her testimony that getting the customer’s order correct required more concentration than normal due to a new menu. The finding is also supported by Dourney’s testimony that she had never previously been written up or reprimanded for serving underage customers or failing to request identification.

Because Dourney’s forgetting to card the customer was conduct marked by unintentional lack of care, the conduct was inadvertence. Consequently, even if Dour-ney’s conduct otherwise met the definition of employment misconduct under Minn. Stat. § 268.095, subd. 6(a), it is still not employment misconduct because the plain statutory language in subdivision 6(b) provides that, regardless of subdivision 6(a), inadvertence is not employment misconduct. See Minn.Stat. § 645.16 (2008) (“When the words of a law in their application to an existing situation are clear and free from all ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the spirit.”).

*541DECISION

Because Dourney’s failure to card the customer was inadvertence, Dourney did not commit employment misconduct, and she is eligible to receive unemployment benefits.

Affirmed.

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