This opinion will be unpublished and

may not be cited except as provided by

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






Stephen K. Berens,





Health Partners, Inc.,



Commissioner of Economic Security,



Filed March 27, 2001


Harten, Judge


Department of Economic Security

Agency File No. #357200


Debra L. Weiss, Dudley & Smith, P.A., 2602 Firstar Center, 101 East Fifth Street, St. Paul, MN 55101 (for relator)


Penelope J. Phillips, Marnie E. Polhamus, Felhaber, Larson, Fenlon & Vogt, P.A., 4200 First Bank Place, 601 Second Avenue South, Minneapolis, MN 55402-4302 (for respondent Health Partners)


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


            Considered and decided by Harten, Presiding Judge, Crippen, Judge, and Hanson, Judge.


U N P U B L I S H E D   O P I N I O N


Relator challenges the determination of the commissioner's representative that he was discharged due to employment misconduct.  Because we conclude that relator committed misconduct within the meaning of Minn. Stat. § 268.095, subd. 6 (1998), we affirm.


            Relator Stephen K. Berens worked full time as a member services representative for respondent Health Partners from September 15, 1998, through February 16, 2000.  Relator’s primary responsibilities included taking incoming phone calls, answering questions, resolving problems, and providing services to the caller.  Health Partners’ policies and procedures require representatives to document all incoming calls and contacts.  Health Partners maintains a complete and accurate record of telephone contacts to provide appropriate services to its members and to promote member satisfaction.  Health Partners also relies on this record to facilitate management decisions and resolve disputes.

During relator’s initial training and throughout his employment, Health Partners repeatedly informed him that he was required to document all calls and to record at least one service event (with the appropriate code or written description) for each call. Even hang-ups and wrong numbers were to be documented.  Relator testified at the hearing before the unemployment law judge that, in his judgment, some calls he received were “trivial” and that he felt it unnecessary to document or to record a service event for all calls. 

            In February 2000, relator’s supervisor, Ed Mowery, monitored several customer calls handled by relator.  On February 15, 2000, Mowery monitored a member’s call that relator documented he transferred to another call center when, in fact, he had not transferred the call as he should have done.  Mowery noted that, on this call, relator gave incorrect and curt answers to the caller and “then documented the call falsely.”  When Mowery questioned him about why he had falsely documented the call, relator indicated that he did so because he was embarrassed and did not want anyone to know that he had not handled the call properly. 

            On February 16, 2000, Health Partners discharged relator from his employment.  On March 15, 2000, relator applied for unemployment benefits.  An adjudicator for the Department of Economic Security determined that relator was not disqualified from receiving benefits.  Health Partners appealed the decision.  Following a hearing, an unemployment law judge affirmed the department’s decision and determined that relator was discharged for reasons other than employment misconduct and not disqualified from receiving benefits.  Health Partners appealed to the Commissioner of Economic Security.  The commissioner’s representative reversed the decision of the unemployment law judge, determined that relator was discharged due to employment misconduct, and ordered him to repay all benefits received.  Relator appeals by writ of certiorari.


            An employee discharged for misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4(1) (1998).  Appellate review of a misconduct determination by the commissioner’s representative presents a mixed question of fact and law.  Colburn v. Pine Portage Madden Bros., Inc., 346 N.W.2d 159, 161 (Minn. 1984). 

We review the factual findings of the commissioner’s representative in the light most favorable to the decision and determine whether there is evidence in the record that reasonably tends to sustain those findings.


Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996).  Whether those findings support a misconduct determination is a question of law subject to de novo review.  Cook v. Playworks, 541 N.W.2d 366, 368 (Minn. App. 1996).  “An employer has the burden of proving an employee’s disqualification for benefits due to misconduct.”  Sandstrom v. Douglas Mach. Corp., 372 N.W.2d 89, 91 (Minn. App. 1985).  Minn. Stat. § 268.095, subd. 6 (1998), provides:

(a)       Employment misconduct means:


(1)       any intentional conduct, on the job or off the job, that disregards the standards of behavior that an employer has the right to expect of the employee or disregards the employee’s duties and obligations to the employer; or

(2)       negligent or indifferent conduct, on the job or off the job, that demonstrates a substantial lack of concern for the employment.


(b)       Inefficiency, inadvertence, simple unsatisfactory conduct, poor performance because of inability or incapacity, or absence because of illness or injury with proper notice to the employer, are not employment misconduct.


Relator denies that he willfully or deliberately falsified documentation of member calls; he asserts that he was guilty only of poor judgment, not misconduct.  Relator testified that on February 15, 2000, after he completed the specific call at issue, he noticed that he should have transferred it to the other call center, and “to avoid embarrassment,” he documented that he had transferred the call, even though he had not.  He further testified that he “didn’t want to admit that [he] had missed the coding that it actually belonged in the other call center.”  He testified that he considered his action to be “nothing more than minutia.  It’s a non-issue.” 

“Dishonesty that is connected with employment may constitute misconduct.”  Baron v. Lens Crafters, Inc., 514 N.W.2d 305, 307-8 (Minn. App. 1994) (employee who falsely claimed to have trained all store managers was guilty of misconduct for unemployment compensation purposes).  An employee who intentionally falsifies reports commits disqualifying employment misconduct.  See Whorton v. Department of Health & Human Servs., 368 N.W.2d 750, 752 (Minn. App. 1985).  Relator contends that the instant case is like Morrison County Soil & Water Conservation Dist. v. Armstrong, 394 N.W.2d 184, 186 (Minn. App. 1986) (when an employee unintentionally misstates his hours on his time sheet, the error is not misconduct). However, in Morrison County, this court concluded that the record supported the departmental determination of no intentional deceit where the employee testified that he “honestly believed” that he was recording his time correctly.  Id.  Unlike Morrison County, relator could not testify that he “honestly believed” he was properly documenting the call; he knew that his documentation was false.  Relator deliberately chose to falsely document the call and testified that he did so to “avoid embarrassment” over his improper handling of the call.

Relator claims that his false documentation was “an isolated, innocuous incident in which [he] admittedly exercised poor judgment.”  However, because the “isolated instances” exception to misconduct is not included in Minn. Stat. § 268.095, subd. 6, “that exception is no longer Minnesota law.”  Isse v. Alamo Rent-A-Car, 590 N.W.2d 137, 140 (Minn. App. 1999), review denied (Minn. April 20, 1999).

The evidence supports the commissioner’s representative’s finding that relator “falsified [a] record.”  Relator’s conduct fell within the statutory definition of misconduct, i.e., disregard of the “standards of behavior that an employer has the right to expect of the employee.”   Because we conclude that relator’s false documentation of this call was adequate to support the commissioner’s representative’s finding of employment misconduct and disqualification for benefits, we do not address the other documentation issues.