This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2012).
STATE OF MINNESOTA
IN COURT OF APPEALS
A13-2138
Pamela Jeanne Googe,
Relator,
vs.
Capstone Services, LLC,
Respondent,
Department of Employment and Economic Development,
Respondent.
Filed July 21, 2014
Affirmed
Hooten, Judge
Department of Employment and Economic Development
File No. 31021987-4
Pamela Jeanne Googe, South St. Paul, Minnesota (pro se relator)
Capstone Services, LLC, St. Louis, Missouri (respondent employer)
Lee B. Nelson, Department of Employment and Economic Development, St. Paul,
Minnesota (for respondent department)
Considered and decided by Reyes, Presiding Judge; Hooten, Judge; and Kirk,
Judge.
UNPUBLISHED OPINION
HOOTEN, Judge
Relator challenges the decision by an unemployment law judge (ULJ) that she was
discharged for misconduct and is ineligible for unemployment benefits, arguing that she
was unaware of the employer’s policy regarding the proper use of its credit card and that
her use of the credit card was condoned by her supervisor. Although relator is correct
that the ULJ erred by failing to set forth a reason for crediting the employer’s testimony
over her testimony regarding the use of the credit card, relator was discharged for other
acts of misconduct, which she does not dispute on certiorari review. Because these other
acts of misconduct justify the ULJ’s denial of unemployment benefits, we affirm.
FACTS
Capstone Services, LLC owns and manages group homes for mentally disabled
adults. Relator Pamela Googe worked for Capstone as a site coordinator. She provided
onsite management services, including overseeing Capstone residents’ finances;
coordinating the “prudent and safe receipt, handling, storage, disbursement, and
documentation” of resident funds; and managing “the prudent spending and
documentation of assigned financial resources within the limits set by the Program
Director, including staffing complements, program accounts, and petty cash accounts.”
Capstone terminated Googe’s employment effective February 12, 2013. Her
termination letter includes an attachment stating that Googe committed a “clear violation
of [Capstone’s] Policy and Procedure Management of Individual Funds” and setting forth
a number of alleged violations, including purchasing items for residents using the
2
company’s Sam’s Club credit card, failing to document residents’ financial transactions,
attaching incorrect receipts to residents’ monthly fund sheets, and signing checks on
behalf of residents without being an authorized signer.
Googe applied and was initially determined eligible for unemployment benefits.
Capstone appealed. Googe and Capstone representatives, including Frank Zallar, her
supervisor, participated in a telephonic hearing before a ULJ.
Zallar testified that on January 23, 2013, Googe told Zallar that she was concerned
that a resident at one of the group homes was missing clothes. Zallar asked Googe to
look for the clothes and to contact him if she could not find them. Instead, Googe
emailed Zallar’s supervisor and alleged that Zallar told her not to file an incident report.
This incident prompted Zallar to review Googe’s financial activity, including her
use of a company-issued Sam’s Club credit card. Zallar testified that Googe had a Sam’s
Club credit card to make bulk purchases for the company, but that it would be
“[a]bsolutely” inappropriate to make purchases for individual residents. Zallar noticed
that Googe had purchased items for the residents with the credit card. Zallar added, “I
was aware that there had been occasions in the past where [Googe] had used Capstone
funds to pay for consumer needs and she received retraining at that time. And as far as
all the Sam’s Club stuff I did not know until I saw the bills that I got from the finance
director.” In the past, Zallar retrained Googe on the relevant policies and procedures
relating to the use of Capstone funds.
Zallar also reviewed the residents’ bank statements and receipts. He testified that
Googe was writing checks for individual residents even though she was not an authorized
3
signer. He also determined that resident funds were not accounted for, and that one
resident was missing $287. Another Capstone employee testified that Googe violated
Capstone’s policy against commingling the residents’ funds by making smaller purchases
on single receipts for several residents at a time.
With the exception of the missing money from a resident’s account, Googe did not
dispute that she committed the alleged violations. She testified that she was not aware of
a policy that prohibited using the Sam’s Club credit card for purchases on behalf of
individual residents. She explained that she would reimburse Capstone with funds from
individual residents’ account. She acknowledged that she “[p]robably” attended trainings
on finances, but could not recall the content of those trainings. Googe testified
emphatically that Zallar had full knowledge of her use of the Sam’s Club credit card.
Googe also admitted that she signed residents’ checks without being authorized to do so,
but claimed that Zallar was also aware of this practice. And Googe admitted that she was
aware of the policy against commingling residents’ funds for smaller purchases,
conceding, “I guess I would say I probably was guilty of that.”
On two occasions, Googe raised the missing-clothes issue involving Zallar. She
claimed that Zallar directed her not to file an incident report and that she e-mailed
Zallar’s supervisor because she wanted to know whether to file an incident report.
Toward the end of the hearing, Googe claimed that Capstone retaliated against her for
contacting Zallar’s supervisor regarding the missing clothes.
The record contains Capstone documentation on Googe’s financial trainings.
Googe did not object to the admission of these documents into evidence.
4
The ULJ found that Googe used the Sam’s Club credit card for purchases made on
behalf of individual residents, rather than for business purposes; that Googe failed to
document residents’ transactions; that Googe attached incorrect receipts to residents’
monthly fund sheets; that a resident was missing nearly $300 due to Googe’s oversight;
that Googe knowingly signed residents’ checks even though she was not an authorized
signer; and that Googe commingled residents’ funds by making combined purchases for
multiple residents. The ULJ determined that Googe was discharged for employment
misconduct, was ineligible for benefits, and had been overpaid $6,749. Googe requested
reconsideration, but the ULJ affirmed its decision, adding that it found the employer’s
witnesses more credible than Googe on the disputed issue of whether Zallar was aware of
and condoned Googe’s conduct. Googe appeals by writ of certiorari.
DECISION
This court may affirm or remand the ULJ’s decision, or it may reverse or modify
the decision if the substantial rights of the petitioner may have been prejudiced because
the findings, inferences, conclusion, or decision are, among other things, made upon
unlawful procedure or are unsupported by substantial evidence in view of the entire
record. Minn. Stat. § 268.105, subd. 7(d) (2012). Substantial evidence is defined as: “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; and 5. Evidence considered in its entirety.” Cable Commc’ns Bd. v.
Nor-West Cable Commc’ns P’ship, 356 N.W.2d 658, 668 (Minn. 1984).
5
An applicant discharged from employment for employment misconduct is
ineligible for unemployment benefits. Minn. Stat. § 268.095, subd. 4(1) (2012).
Whether an employee committed employment misconduct is
a mixed question of fact and law. Whether the employee
committed a particular act is a question of fact. We view the
ULJ’s factual findings in the light most favorable to the
decision, giving deference to the credibility determinations
made by the ULJ. In doing so, we will not disturb the ULJ’s
factual findings when the evidence substantially sustains
them. But whether the act committed by the employee
constitutes employment misconduct is a question of law,
which we review de novo.
Skarhus v. Davanni’s Inc., 721 N.W.2d 340, 344 (Minn. App. 2006) (citations omitted).
The ULJ found that Googe “used the Capstone Sam’s Club credit card . . . on
various occasions to make purchases of items needed for clients.” Googe does not
dispute this finding, and the finding is supported by substantial evidence. Both Googe
and Zallar testified that Googe made purchases for residents using the credit card.
Googe contends that there is no documentation regarding a policy for the use of
the credit card and, therefore, no training could have taken place prohibiting the
commingling of the residents’ funds with Capstone’s funds. The ULJ found that “Googe
had received training [on the] policies” relating to the credit card. This finding is
supported by substantial evidence. Zallar testified that Googe was trained and retrained
on credit card policies due to her previous infractions. Googe did not dispute that she had
been trained on the correct use of the credit card. Googe testified that she “[p]robably”
attended the trainings documented in the record. She acknowledged that the trainings
involved finances, but could not specifically recall if they addressed the use of the Sam’s
6
Club credit card. Moreover, Googe later explained, “My point is that [Zallar] had full
knowledge of when I made expenditures at Sam’s,” indicating that her contention did not
involve whether she was trained, but whether her supervisor knew what she was doing.
Googe contends that her supervisors knew about and authorized her use of the
credit card to make purchases on behalf of individual residents. The ULJ acknowledged
that there is a dispute as to whether Zallar was aware of or condoned Googe’s use of the
Sam’s Club credit card. Thus, credibility is central to the finding on this disputed issue.
“When the credibility of a witness testifying in a hearing has a significant effect on the
outcome of a decision, the [ULJ] must set out the reason for crediting or discrediting that
testimony.” 2014 Minn. Laws ch. 251, art. 2, § 15, at 21 (to be codified at Minn. Stat.
§ 268.105, subd. 1(d) (2014)).1
Here, the ULJ credited Zallar’s testimony, explaining,
The more plausible scenario suggests that much of the
behavior that Googe engaged in, in violation of policy and
procedure, was done for convenience reasons. . . . It is
concluded that the employer’s testimony supporting a finding
that Googe engaged in this behavior, violating the cash
handling and accounting procedures, on her own and with an
understanding that her actions were not in line with required
procedures . . . [and] policy is more persuasive than testimony
given by Googe that any violation of policy was with the
knowledge and condonation of management.
But this credibility finding fails to set forth a reason to believe the employer’s testimony
over Googe’s as required by the statute. Merely stating that testimony is more plausible
1
This law went into effect June 8, 2014. 2014 Minn. Laws ch. 251, art. 2, §§ 15
(amending section 268.015, subdivision 1), 26 (providing effective date). Because the
amendment “merely clarifies preexisting law, the amended statute applies to all future or
pending litigation.” Braylock v. Jesson, 819 N.W.2d 585, 588 (Minn. 2012).
7
or more persuasive is simply a different way to say that a witness is credible. The ULJ
must discuss factors bearing on credibility. See Ywswf v. Teleplan Wireless Serv., Inc.,
726 N.W.2d 525, 532–33 (Minn. App. 2007) (listing relevant factors).
Without appropriate credibility findings, we cannot determine whether the ULJ
erred by finding the employer’s witnesses more credible, which is the reason that the ULJ
rejected Googe’s claim that she was authorized to use the credit card and supported the
ULJ’s determination that Googe engaged in employment misconduct. Typically, we
would remand for the ULJ to make such findings. See Wichmann v. Travalia & U.S.
Directives, Inc., 729 N.W.2d 23, 29 (Minn. App. 2007) (remanding “for additional
findings that satisfy the statute”). But we need not do so here because we conclude that
Googe engaged in employment misconduct based on the ULJ’s unchallenged findings.
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 reasonably expect of the employee; or (2) a
substantial lack of concern for the employment.” Minn. Stat. § 268.095, subd. 6(a)
(2012). Googe does not challenge the ULJ’s finding that she failed to document the
financial transactions of individual residents; attached incorrect receipts to residents’
monthly fund sheets; caused a resident to be missing nearly $300; knowingly signed
residents’ checks without authorization; and commingled residents’ funds for smaller
purchases. Any challenge to these findings is waived. See Melina v. Chaplin, 327
N.W.2d 19, 20 (Minn. 1982) (stating that issues not briefed on appeal are waived).
8
In McDonald v. PDQ, we upheld the denial of unemployment benefits based on
the relator’s termination from employment “for violating a company policy requiring
cashiers to ring up purchases immediately.” 341 N.W.2d 892, 893 (Minn. App. 1984).
We explained that “[t]he policy involved here was important to ensure that money was
not misplaced or stolen” and that “[t]he employer has the right to expect scrupulous
adherence to procedure by employees handling the employer’s money.” Id. The
principle applies here. Capstone’s residents are mentally disabled adults and, because of
their inability to independently handle their finances, Capstone employs people like
Googe to manage their accounts. Googe’s actions are serious violations of Capstone’s
standards of behavior and demonstrate a substantial lack of concern for the employment.
Googe contends that her employment was terminated because of retaliation.
When the reason for discharge is disputed, “the hearing process must allow evidence on
the competing reasons and provide factual findings on the cause of discharge.”
Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997). “The
factfinder is then obligated to weigh the evidence, determine credibility, and make a
determination on the reasons for the discharge.” Id.
Googe contends that the ULJ refused to hear testimony on retaliation. Her
argument is without merit. The ULJ allowed Googe to testify on her retaliation theory at
least twice and without interruption. The hearing process afforded Googe an opportunity
to present evidence on her argument. Moreover, there was no reason to determine
credibility on the issue of retaliation because it is undisputed that Googe was discharged
following the incident related to a resident’s missing clothes. By determining that Googe
9
was discharged for mishandling finances, the ULJ implicitly rejected Googe’s claim that
she was retaliated against for contacting Zallar’s supervisor.
In sum, the ULJ did not err by determining that Googe was discharged for
employment misconduct. We have reviewed Googe’s other arguments and determine
that they are without merit.
Affirmed.
10