Department of Employment and Economic Development File No. 2949303-3
Charles M. Goldstein, Goldstein Law Office, P.A., Golden Valley, Minnesota (for relator) Marlene Typpo, St. Louis Park, Minnesota (respondent)
Lee B. Nelson, Amy R. Lawler, Minnesota Department of Employment and Economic Development, St. Paul, Minnesota (for respondent department)
Considered and decided by Smith, Presiding Judge; Cleary, Judge; and Huspeni, Judge. [*]
In violation of relator's mail policy, respondent attempted to retrieve a magazine from the incoming mail prior to its distribution. In doing so, respondent engaged in a brief struggle with a co-worker. After respondent's employment was terminated, the Minnesota Department of Employment and Economic Development concluded that respondent's actions constituted misconduct, and thus denied her unemployment benefits. On appeal, the unemployment law judge (ULJ) concluded that respondent's conduct was merely unsatisfactory, ruling that she is eligible for unemployment benefits. Because respondent's physical behavior in struggling for the mail does not establish misconduct, we affirm.
Relator Goldstein Law Office (GLO) employed respondent Marlene Typpo as a paralegal. In January 2012, GLO instituted a new mail policy because employees, including Typpo, had occasionally taken pieces of just-delivered mail before attorney Charles Goldstein (Goldstein) was able to review it. This was problematic because GLO's mail often contained confidential and time-sensitive information. A memorandum regarding the new mail policy was e-mailed to GLO employees, including Typpo, and provided:
Per [Goldstein], we are going to begin following a new procedure for all mail that the office receives. As soon as the mail comes in each day, the person working at or covering the front desk is to bring all mail to [Goldstein] right away. He will then direct where it is to go next. This will ensure that he sees everything that comes in each day as soon as it arrives.
The new mail procedure was also posted on a sign at the front desk: "New Mail Procedure: As soon as mail comes in, bring to [Goldstein] for review—he will direct where it goes next. This will ensure that he sees everything that comes in each day as soon as it arrives." Typpo admitted that she was aware of the mail policy.
On March 9, 2012, law clerk C.A. and a fellow law clerk were at the front desk when the mail was delivered. After C.A. retrieved the mail in order to carry it to Goldstein's office, Typpo entered the front desk area and grabbed hold of the mail by "lung[ing] forward" over the desk so that the top portion of her body was on the desk. However, C.A. held fast to the mail and a "struggle . . . ensued" for approximately 15 seconds. During the struggle, Typpo rifled through the mail while attempting to pull the mail from C.A.'s grip. C.A. held on to the mail and continually repeated that she was required to follow the mail policy and bring the mail to Goldstein. Typpo did not raise her voice when pulling the mail, but the witnessing law clerk described her manner as "very threatening." Eventually Typpo relented, returned to her office, and shut the door.
After the incident, C.A. was "extremely anxious and tense, " and felt "assaulted." Typpo, challenging the testimony of C.A. and the witnessing law clerk, asserted that she was holding the mail when C.A. grabbed it from her. She also estimated that the struggle lasted only 5-8 seconds.
When Goldstein returned to GLO from an outside appointment, C.A. immediately reported the incident to him. After discussing what happened with C.A., and later the witnessing law clerk, Goldstein spoke with GLO's human resources manager. Based on the human resources manager's advice, Goldstein decided to terminate Typpo's employment with GLO. Goldstein made the decision because Typpo's conduct "rose above the level of violating an office policy[, ] which is important enough, but rose to a level of basically a physical altercation which [GLO] can't have occur . . . especially when it's causing great fear ...