This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






Lindsey M. Asmus,


U.S. Postal Service,
Commissioner of Economic Security,


Filed January 16, 2001


Stoneburner, Judge


Economic Security

File No. 44300



Peter B. Knapp, Beau McGraw, certified student attorney, William Mitchell Law Clinic, 875 Summit Avenue, St. Paul, MN 55105 (for relator)


Lindsey Asmus, 3820 Macalester Drive, Minneapolis, MN 55421 (relator)


U.S. Postal Service, Supervisor of Accounting, Accounting Service Center, 2825 Lone Oak Parkway, Eagan, MN 55121 (respondent employer)


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



            Considered and decided by Peterson, Presiding Judge, Lansing, Judge, and Stoneburner, Judge.


U N P U B L I S H E D  O P I N I O N




            Relator Lindsey M. Asmus challenges the determination by respondent Commissioner of Economic Security (commissioner) that she was discharged for misconduct and is therefore disqualified from receiving reemployment benefits.  Because the evidence reasonably supports the commissioner’s findings of fact, and the factual findings support the commissioner’s conclusion, we affirm.



In October 1998, Asmus applied for a position as a casual clerk with the United States Postal Service (USPS) in St. Paul.  The position of casual clerk requires heavy lifting of up to 70 pounds.  Asmus noted on the application that she could not do heavy lifting and that she had pain in her back and neck, and stiffness and swelling in her joints.  Asmus disclosed a back injury from a 1990 automobile accident.  Asmus noted that she had an MRI in 1998 related to her back injury.  When a USPS nurse requested Asmus’s medical records, Asmus asked if her records would be discarded if she withdrew her application.  Asmus also stated, “I’ll just come back later and lie next time.  My back doesn’t bother me now.  I should have never told you.  That’s what I get for telling the truth.”  Asmus then withdrew her application for the casual-clerk position.

On November 16, 1998, Asmus applied for a position as a mail processor at USPS’s Minneapolis branch.  This position also requires heavy lifting of up to 70 pounds and heavy carrying of 45 pounds or more.  As part of the application process, Asmus completed a medical questionnaire on which she denied having any problems that would interfere with full performance of the duties of a mail processor.  Asmus indicated that she had been treated for a medical condition and had a CAT scan due to an automobile accident in 1990, but answered “No” to the question of whether she had any back injury or abnormality, or painful or swollen joints.  Based on this application, USPS hired Asmus in December 1998 as a mail processor.

            A year later, when Asmus inquired about a change in schedule due to a sleep disorder, USPS discovered the inconsistent responses on Asmus’s employment applications from October and November 1998.  USPS suspended Asmus until she could clarify the discrepancies.  Asmus provided some medical information concerning injuries to her spine following the 1990 automobile accident, as well as documentation of MRI tests performed in 1995 and 1998.  USPS requested additional medical information, but Asmus refused to provide it.  In November 1999, Asmus was examined by Dr. Thomas C. Jetzer, a USPS physician, who cleared Asmus to return to work without restrictions.  USPS discharged Asmus on January 25, 2000, for falsification of her employment application.  

Asmus’s subsequent request for reemployment benefits was denied.  On Asmus’s appeal, a reemployment law judge held that Asmus was not disqualified from benefits.  On review requested by USPS, the commissioner’s representative reversed the reemployment law judge’s decision and disqualified Asmus from benefits based on the finding that Asmus was discharged because of employment misconduct.  Asmus appeals.



In Minnesota, an employee discharged for misconduct is disqualified from receiving reemployment benefits.  Minn. Stat. § 268.095, subd. 4 (1) (Supp. 1999).  Whether an employee committed misconduct is a mixed question of fact and law.  Colburn v. Pine Portage Madden Bros., 346 N.W.2d 159, 161 (Minn. 1984).  This court views the commissioner’s representative’s factual findings in the light most favorable to the decision and sustains those findings when the evidence in the record reasonably tends to support them.  Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996).  But whether the facts satisfy the statutory standard for disqualification from reemployment benefits is a question of law, which allows this court to exercise its independent judgment.  Id.; see Ress v. Abbot Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989) (recognizing the ultimate determination whether a person is ineligible for reemployment benefits presents a question of law subject to de novo review).

1.      Factual Findings

Asmus challenges the commissioner’s representative’s factual findings that she falsified information on her employment applications.  The record shows, however, that Asmus provided inconsistent and conflicting medical information on her October and November employment applications to USPS.  According to Asmus’s medical records, she had suffered a back and neck injury in 1990 in an automobile accident.  Asmus continued to complain of symptoms related to that injury through October 1998.  In her November application, however, Asmus stated that she had never had a back injury, or painful, swollen joints, or a stiff neck.

Asmus argues that while her responses on the October and November applications are inconsistent, they are truthful.  Asmus asserts that in October she believed she was still suffering from a back injury from her 1990 automobile accident, but by November she had accepted the fact that she had fully recovered.  Asmus supports this claim with documentation from one of her physicians, who concluded in June 1998 that despite Asmus’s continuing complaints, she no longer showed signs of injury.  Nonetheless, Asmus documented her continuing complaints on the October application.  Nothing in the record supports Asmus’s claim that one month later she was suddenly willing to concede that she did not have continuing problems related to her 1990 automobile accident.

Because the record contains evidence that reasonably tends to support the commissioner’s factual finding that Asmus provided false information on her employment applications, we sustain the commissioner’s findings of fact.  See Lolling, 545 N.W.2d at 377 (sustaining findings when evidence reasonably tends to support them).

2.      Misconduct

Whether the factual findings support the commissioner’s conclusion that Asmus engaged in misconduct is a question of law, which this court reviews de novo.  See Monyoro v. Marriott Corp., 403 N.W.2d 325, 328 (Minn. App. 1987) (“Once the facts are established, the question whether or not the employee’s behavior constituted misconduct is one of law, to be independently determined by this court.”).  The employer bears the burden of proving an employee’s misconduct, Ress, 448 N.W.2d at 523, and because economic security laws are remedial in nature, we narrowly construe the disqualification provisions.  McGowan v. Executive Express Transp. Enters., Inc., 420 N.W.2d 592, 595 (Minn. 1988).

The legislature defines ‘misconduct’ as any intentional conduct that demonstrates disregard for the employer’s reasonable standards of behavior, or disregard for the employee’s duties and obligations to the employer.  Minn. Stat. § 268.095, subd. 6(a)(1) (Supp. 1999).  In Heitman v. Cronstroms Mfg., Inc., 401 N.W.2d 425 (Minn. App. 1987), we considered whether giving false information on an employment application constituted disqualifying misconduct.  Heitman involved a welder who was discharged for misconduct after the employer discovered that he had failed to disclose a prior back injury on his employment application.  401 N.W.2dat 426.  In Heitman, we drew a distinction between misconduct that provided good cause for termination and misconduct that deprived an employee of reemployment benefits.  Id. at 428; see St. Williams Nursing Home v. Koep, 369 N.W.2d 33, 34 (Minn. App. 1985) (indicating the issue is not whether employee’s termination was justified, but rather whether employee is entitled to receive reemployment benefits).  In order to constitute misconduct that disqualifies an employee from reemployment benefits, the employee’s misrepresentation or falsification must be “material” to the position applied for.  Heitman, 401 N.W.2d at 428.

Asmus argues that her misrepresentation or falsification was not material to her position as a mail processor.  Asmus cites Heitman in support of her argument, claiming this court held that the welder’s misrepresentation concerning his back injury was not material to his position as a welder.  Asmus misunderstands the result in Heitman.  In Heitman, we observed that the commissioner’s representative failed to determine whether the welder’s misrepresentation was material to his position as a welder, and we remanded to the commissioner’s representative for such a determination.  401 N.W.2d at 428.

            In the case before us, the commissioner’s representative concluded that Asmus’s falsification on her employment application was material to her position as a mail processor.  We agree.  The record shows that Asmus applied for two positions with the USPS: casual clerk and mail processor.  Both positions require employees to lift up to 70 pounds, and the mail-processor position has an additional requirement that employees be able to carry at least 45 pounds.  The job description for mail processor also lists bending, twisting, stooping, and reaching as potential activity.  Information concerning previous back and neck injury is material to the position of either mail processor or casual clerk, given the physical requirements for the positions.  Cf. Independent Sch. Dist. No. 709 v. Hansen, 412 N.W.2d 320, 323 (Minn. App. 1987) (holding employee’s falsification of his job application did not constitute misconduct for reemployment compensation purposes because employee’s misrepresentation regarding his alcoholism was not material to his position as school chef).  Asmus’s falsification regarding her medical condition and past injuries constitutes a material misrepresentation.[1]  The commissioner’s determination that Asmus was disqualified from receiving reemployment benefits was proper.



[1] At oral argument, neither party could determine which application contained the falsified information.  Asmus argues that if one of the applications contains falsified information, it is the application for the casual-clerk position – the position that she did not receive – and therefore there is no falsification with respect to her position as a mail processor.  We find this distinction unimportant because even if we accept Asmus’s contention that her mail-processor application contains accurate information, she still falsified information to USPS on the casual-clerk application.