This opinion will be unpublished and

may not be cited except as provided by

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







Shirley A. Herness,





City of Coon Rapids,



Commissioner of Economic Security,




Filed May 8, 2001


Halbrooks, Judge


Department of Economic Security

File No. 565700



Howard L. Bolter, Borkon, Ramstead, Mariani, Fishman & Carp, Ltd., 485 Northstar East, 608 Second Avenue South, Minneapolis, MN 55402 (for relator)


Scott M. Lepak, Barna, Guzy & Steffen, Ltd., 400 Northtown Financial Plaza, 200 Coon Rapids Boulevard, Minneapolis, MN 55433 (for respondent City of Coon Rapids)


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




            Considered and decided by Anderson, Presiding Judge, Lansing, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N


            The commissioner’s representative determined that relator Shirley A. Herness was discharged for aggravated employment misconduct after she altered her timecards to receive unearned wages of more than $1,000.  Relator challenges the decision, contending that, because of her severe depression, she did not intend to alter her timecards and had no recollection of doing so.  Because we find that the record supports the determination of the commissioner’s representative, we affirm.


            Relator Shirley A. Herness began working as an account clerk for the city of Coon Rapids in August 1973.  On April 4, 2000, a routine review of relator’s timecard revealed that she had altered her timecard.  After discovering at least six other occasions between February 1999 and April 2000 where relator had altered her timecards, her supervisor confronted her.  Relator claimed that she had been under extreme emotional stress after her sister’s death in August 1999 and her grandmother’s death in November 1999.  Relator later admitted she had a gambling problem.  Following a hearing, the city terminated relator.

            Relator applied for unemployment insurance benefits, but the Minnesota Department of Economic Security determined that she was disqualified from receiving benefits for aggravated employment misconduct.  Relator appealed the determination, and a hearing before an unemployment law judge was held.  At the hearing, relator’s employer presented evidence that relator seemed nervous when paychecks were distributed and took her paychecks right away so that the other accounting clerk would not see them.  The judge affirmed the department’s determination, and on September 21, 2000, the commissioner’s representative also affirmed the denial of benefits.  This appeal follows.


            On appeal, this court reviews the decision of the commissioner’s representative, not the decision of the unemployment law judge.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  We will sustain fact-findings of the commissioner’s representative if there is evidence reasonably supporting them.  Id. 

Whether an employee committed disqualifying misconduct is a mixed question of fact and law.  Colburn v. Pine Portage Madden Bros., 346 N.W.2d 159, 161 (Minn. 1984); see also Minn. Stat. § 268.095, subd. 4 (2000) (applicants discharged for committing misconduct are disqualified from receiving unemployment benefits).  Aggravated employment misconduct is substantially more serious than general misconduct and includes

the commission of any act, on the job or off the job, that would amount to a gross misdemeanor or felony if the act interfered with or adversely affected the employment * * * .


Minn. Stat. § 268.095, subd. 4a(1) (2000).  The determination of whether or not the employee committed a particular act or acts is a question of fact.  Scheunemann v. Radisson South Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  Whether the acts constitute misconduct is a question of law on which this court is “free to exercise its independent judgment.”  Ress v. Abbott NW Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989) (citations omitted).

            Here, the commissioner’s representative found that relator committed a theft of public funds, a felony in Minnesota.  See Minn. Stat. § 609.52, subd. 3(d)(iv) (2000); see also Minn. Stat. § 609.02, subd. 2 (2000).  Relator claims that the commissioner’s representative erred in finding she committed aggravated misconduct.  Relator alleges that she was unaware of the timecard alterations because of her severe depression and, therefore, she lacked the state of mind necessary to form intent, a requisite element of theft.

We believe that the commissioner’s representative has shown by a preponderance of the evidence that relator acted with intent.  See Minn. Stat. § 268.03, subd. 2 (2000) (the commissioner’s representative determines “[a]ll issues of fact * * * by a preponderance of the evidence”).  “Intent * * * may be proved by a person’s conduct in light of the surrounding circumstances.”  Manos v. First Bank Minnehaha, 357 N.W.2d 372, 375 (Minn. App. 1984) (citation omitted).  Here, the commissioner’s representative found that relator’s claim of depression was pretext because “the evidence reflects that several of the timecard alterations occurred months before [she] began to experience emotional problems.”  Further, the alterations are in her handwriting, and there is no evidence that relator’s alleged depression affected any of her other job duties.  Therefore, the record supports the decision of the commissioner’s representative.

            Relator also argues that she cannot have committed aggravated employment misconduct because she was terminated for altering her timecards, not for theft.  Cf. Hansen v. C.W. Mears, Inc., 486 N.W.2d 776, 780 (Minn. App. 1992) (holding a theft discovered after an employee was terminated cannot later be offered as a reason for denying unemployment benefits), review denied (Minn. July 16, 1992).  But the city explicitly stated in its April 24 and May 17 letters that relator had committed “theft of public funds.”  Even if the city had not been so explicit, relator is arguing a distinction without a difference, as the result of her actions was theft.  Cf. Manos, 357 N.W.2d at 375‑76 (employee committed gross misconduct when she failed to report large overpayments that employer had made on her paychecks).  Moreover, “[i]t is the commissioner’s role to make all determinations as to eligibility and disqualification, not the employer’s.”  Id. at 375.  Therefore, we find that relator was discharged for theft, which is a basis for aggravated employment misconduct.