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Bushman v. K Mart Corporation

Court of Appeals of Minnesota

September 9, 2013

Albert L. Bushman, Relator,
v.
K Mart Corporation, Respondent, Department of Employment and Economic Development, Respondent.

UNPUBLISHED OPINION

Department of Employment and Economic Development File No. 30069953-3

Albert L. Bushman, Grand Rapids, Minnesota (pro se relator)

K Mart Corporation, c/o TALX UCM Services, Inc., St. Louis, Missouri (respondent employer)

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

Considered and decided by Peterson, Presiding Judge; Stoneburner, Judge; and Bjorkman, Judge.

STONEBURNER, JUDGE

Relator challenges the decision of an unemployment-law judge (ULJ) that his employment was terminated for employment misconduct, making him ineligible for unemployment benefits. Because we conclude that relator's conduct did not constitute employment misconduct as defined in Minn. Stat. § 268.095, subd. 6 (2012), we reverse.

FACTS

Relator Albert Bushman was employed as general manager of a K Mart Corporation store. In 2011, Bushman's store earned an award of about $1, 200 from an award program that had been in effect for approximately two years. In late December 2011 or early January 2012, Bushman's district manager reminded all general managers that award funds not used by the end of the fiscal year (January 28) had to be returned to the corporation. At that time, Bushman's store had remaining award funds in the amount of $380.

On January 1, 2012, K Mart issued updated guidelines applicable to 2012 award funds. The record does not include a copy of prior guidelines or any evidence of what, if any, changes were made in the 2012 guidelines. The 2012 guidelines state, in relevant part, that store managers should "make every effort to spend [the funds] for the equal benefit of all/most team members"; that store managers must get prior approval for the expenditures from a district manager; that "misuse, non-use or fraudulent use [of the funds] will result in disciplinary action, up to and including termination"; and that funds "cannot be used to give cash awards [] including [K Mart] gift cards to team members"[1]

Before the end of the fiscal year, Bushman, without the knowledge or permission of his district manager, directed a subordinate to put the balance of the award funds on a K Mart gift card (also referred to as a cash card) and to put the card under the tray in the office safe. At Bushman's direction, the card was later used on several occasions to help the store meet daily donation goals established for each store in K Mart's participation in a fundraising program for the March of Dimes charity. K Mart's witnesses testified that K Mart expected that money for the charity would be solicited only from customers.

K Mart's loss-prevention manager investigated and concluded that Bushman's use of the award funds violated K Mart's ethics policy.[2] K Mart terminated Bushman's employment for this violation.

Bushman applied for unemployment benefits with the Minnesota Department of Employment and Economic Development (DEED). DEED initially found him eligible for benefits, and K Mart appealed. After a de novo hearing, the ULJ concluded that Bushman was discharged for employment misconduct and was therefore ineligible for benefits. Bushman ...


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