This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).


Martin J. Wagner,


Northern States Power,

Commissioner of Economic Security,

Filed February 8, 2000
Harten, Judge

Department of Economic Security
File No. 1349UC99

Martin J. Wagner, 725 County 5 Northwest, Hackensack, MN 56456 (relator pro se)

Kent E. Todd, Department of Economic Security, 390 North Robert Street, St. Paul, MN 55101 (for respondent commissioner)

Jack F. Sjoholm, Jr., NSP – Law Department, 414 Nicollet Mall, Minneapolis, MN 55401 (for respondent employer)

Considered and decided by Lansing, Presiding Judge, Davies, Judge, and Harten, Judge.


U N P U B L I S H E D   O P I N I O N


Relator challenges the conclusion of the commissioner’s representative that relator was discharged for misconduct. Because the facts on which the conclusion rests are supported by the record and the conclusion is not contrary to law, we affirm.


In 1984, relator Martin Wagner began to work for respondent Northern States Power (NSP). In 1997, NSP became dissatisfied with relator’s performance. In April, relator’s manager notified him of his unsatisfactory performance and gave specific directions for improvement, including that relator remain at work until 4 p.m. and meet his project completion deadlines. In July, after relator had again left work early and missed another project deadline, he was given a day’s suspension, with pay, "to commit to improving" his performance. NSP told him then that both the timeliness and the quality of his work must improve within a year. The day following the suspension, relator again left work early; a customer complained that relator had failed to provide information he said he would provide. In October, NSP discharged relator because his performance had not improved.

Relator filed a claim for reemployment insurance benefits. The Department of Economic Security determined that relator was not disqualified for benefits and notified relator and NSP of this determination. NSP appealed. Relator challenged the timeliness of the appeal; a reemployment insurance judge determined that the appeal was timely.

After a hearing on the merits, another reemployment insurance judge found that relator was discharged for misconduct and was not entitled to benefits. Relator appealed, and a commissioner’s representative affirmed the decision of the reemployment insurance judge. Relator challenges this affirmance, arguing that he was not lawfully discharged for misconduct and that NSP’s appeal was not timely.


1. Misconduct

The commissioner’s determination that an employee committed misconduct is a mixed question of fact and law. A reviewing court will affirm if the findings of fact "are not without support in the evidence" and if "the conclusion on those facts is not contrary to the statutory mandate." Colburn v. Pine Portage Madden Bros., Inc., 346 N.W.2d 159, 161 (Minn. 1984).

Minn. Stat. § 268.09, subd. 12 (Supp. 1997), defines misconduct.

Misconduct is intentional conduct showing a disregard of:
(1) the employer’s interest;
(2) the standards of behavior that an employer has the right to expect of the employee; or
(3) the employee’s duties and obligations to the employer. Misconduct also includes negligent conduct by an employee demonstrating a substantial lack of concern for the employment. Inefficiency, inadvertence, simple unsatisfactory conduct, or poor performance as a result of inability or incapacity are not misconduct.

Testimony of relator’s supervisor showed that after relator had been warned about his attendance, he continued to leave work early, and that after he had been warned about the need to complete his projects on time, he continued to spend work time on nonessential or personal matters and did not complete projects on time. The findings that relator "failed to meet the employer’s performance expectations," "did not work his assigned hours," "would give false and misleading information to the employer and to internal customers concerning the status of various work assignments," and "did not complete his regular job assignments, but he continued [despite warnings] to work on personal projects during working hours" are supported by the evidence.

Relator argues that he submitted statements from some customers who were satisfied with his work, and that this evidence was ignored. But he presents no support for his implied view that a charge of misconduct can be defeated by the fact that some customers are satisfied.

Evidence supports the conclusion that relator was fired for misconduct.

2. Timeliness [1]

On November 25, 1997, NSP heard of the initial departmental determination of nondisqualification and on December 9, 1997, it faxed the department a letter objecting to that determination. Minn. Stat. § 268.101, subd. 2 (e) (Supp. 1997), then in effect, states that a determination is final "unless an appeal is filed * * * within 15 calendar days." Relator construed this to mean "unless an appeal is heard * * * within 15 calendar days" and argues that because the appeal was not heard until March 2, 1999, it was untimely. We conclude that NSP’s appeal was timely filed.


[1] This issue was decided by a reemployment insurance judge on March 6, 1999, was never appealed to the commissioner, and was not appealed to this court until August 10, 1999. Despite the procedural defects, we address it on the merits in the interests of completeness. See Minn. R. Civ. App. P. 103.04 (in reviewing a judgment, this court may review any order affecting the judgment).