This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
Mary L. Carruthers,
City of Minneapolis,
Commissioner of Economic Security,
Filed June 5, 2001
Minnesota Department of Economic Security
Agency File No. 604600
Mary L. Carruthers, 3933-27th Avenue South, Minneapolis, MN 55406-3043 (relator-pro se)
Kent E. Todd, Minnesota Department of Economic Security, 390 North Robert Street, St. Paul, MN 55101 (for respondent)
Considered and decided by Lansing, Presiding Judge, Amundson, Judge, and Shumaker, Judge.
On certiorari appeal from the commissioner’s representative’s decision that relator was disqualified from receiving unemployment benefits because she had been discharged for misconduct, relator raises issues as to the sufficiency of the evidence of misconduct, and the timeliness of the employer’s protest of the initial determination. We affirm.
In the late morning hours of May 25, 2000, a woman entered the Wee Care Daycare Center located in Edgewater Baptist Church (the daycare) and asked to use the bathroom. After the woman had been in the bathroom for approximately ten minutes, the employee who had showed her the bathroom knocked on the door and tried to open it but could not because the door had been jammed. She then asked a second daycare employee for help; together they were able to push open the door and observe the woman rubbing water on the floor. Soap had also been rubbed on the walls. The woman walked out of the bathroom and wandered to another bathroom, where she began to wipe the floor around a toilet. The employees then asked Claudia Elsham, the director of the daycare center, to handle the situation. Elsham observed the woman smearing soap on the walls, and after asking if she was all right, escorted her out of the building. In so doing, Elsham noted that the woman smelled of stale alcohol and mumbled incoherent sounds. Elsham observed her stumble toward a marked vehicle and drive away. Elsham then called the police department, informed the police of the incident, and gave them the vehicle’s identifying numbers (the license plate number and an additional number on the back of the vehicle).
The police identified the vehicle as belonging to the city inspector’s office; then contacted Gary Berger, the manager of City of Minneapolis inspections administration. Berger determined the vehicle was assigned to Mary Carruthers, who had been employed by the city as a housing inspector since April 11, 1998. Berger called Elsham for more information about the incident and asked her to prepare a written summary. That afternoon, when Carruthers returned to the office, Berger asked her if anything unusual had happened that day and informed her of the details of the report. Carruthers denied any knowledge of the incident beyond the fact that she had been to the daycare center, used the bathroom, and left. Because of the report of bizarre behavior, Carruthers was asked to take a drug test. About half an hour later, a drug test was administered, which eventually came back as “dilute.”
On June 6, 2000, the city conducted an investigative interview in which Carruthers answered several written questions. In her answers, Carruthers continued to deny anything other than that she had been to the daycare center and used the bathroom. On June 15, 2000, Berger, other supervisors, and a human resource professional met with Carruthers and informed her of their predetermination of behavior constituting misconduct (including her dishonesty in denying specifics of the incident). On June 20, 2000, the director of housing discharged Carruthers from employment.
Carruthers did not grieve the discharge with her union, but instead, on June 21, 2000, established a benefit account with the Minnesota Department of Economic Security (the department). On June 24, 2000, the department mailed its notice to the city; the city responded on June 30, 2000. On July 14, 2000, the department disqualified Carruthers from receiving benefits because it determined that her discharge was for employment misconduct. Carruthers appealed this decision. The department unemployment law judge conducted an evidentiary hearing where Elsham and Berger testified about their respective observations and actions. At this hearing, Carruthers denied that she had behaved oddly or had been intoxicated. Rowena Hicks, a crime prevention specialist with the city, testified that she had seen Carruthers in the afternoon after the incident and did not notice anything unusual about her or smell alcohol. The unemployment law judge affirmed the department’s determination. Carruthers appealed to the commissioner. On appeal, the commissioner’s representative disqualified Carruthers from receiving unemployment benefits because, she concluded, Carruthers had been discharged for employment misconduct, namely deception and dishonesty in the investigation of the incident. This appeal followed by writ of certiorari.
D E C I S I O N
Carruthers argues that there was insufficient evidence of misconduct. On appeal, we examine the decision of the commissioner’s representative. Kalberg v. Park & Recreation Bd., 563 N.W.2d 275, 276 (Minn. App. 1997). That decision is accorded particular deference. Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995). This court reviews the commissioner's representative’s factual findings in the light most favorable to the decision and determines if evidence in the record reasonably tends to support them. Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996). The commissioner’s determination that an employee is disqualified for reasons of misconduct is a mixed question of fact and law. Colburn v. Pine Portage Madden Bros., 346 N.W.2d 159, 161 (Minn. 1984). Whether an employee committed certain acts is a question of fact, but whether those acts constitute misconduct is a question of law. Scheunemann v. Radisson South Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).
There is ample evidence in the record to support each of the commissioner’s findings of fact. The commissioner believed the testimony of Elsham and Berger, and found that Carruthers had lied to the department. The commissioner’s representative was unable to find a motive for these witnesses to have lied. Carruthers points to contrary evidence and argues that the facts do not show dishonesty. But there was ample evidence offered at the hearing to support the commissioner’s representative’s findings of fact and, on appeal, this court does not have the liberty to weigh credibility. Blau v. Masters Rest. Assocs., Inc., 345 N.W.2d 791, 793 (Minn. App. 1984).
The question of whether such dishonesty disqualifies Carruthers from unemployment benefits is also clear. Unemployment benefits shall be paid to an applicant who has established a benefit account, has met the eligibility requirements, and has no outstanding overpayment of benefits, unless the applicant is subject to disqualification from benefits. Minn. Stat. §268.069, subd. 1 (2000). An employee is disqualified if the employee is discharged from work because of employment misconduct. Minn. Stat. §268.095, subd. 4(1) (2000). Employment misconduct means
(1) any intentional conduct, on 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 for 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.
Id., subd. 6 (2000).
An employee’s dishonesty during the course of an employer’s investigation into possible misconduct is a “deliberate violation of standards of behavior which the employer has the right to expect of his employee.” Cherveny v. 10,000 Auto Parts, 353 N.W.2d 685, 688 (Minn. App. 1984). See also Blau v. Masters Rest. Assocs., Inc. 345 N.W.2d 791, 793 (Minn. App. 1984) (misconduct determination upheld where employee dishonestly answered questions about having permission to leave the workplace). Here, the city’s civil service rules specifically prohibit employee dishonesty or making false statements during an investigation into employee-related misconduct. Accordingly, the commissioner’s representative’s findings appear to support a finding of misconduct.
Carruthers next argues that the city did not raise an issue of disqualification within the time allotted. An employer has ten calendar days after the sending of the notice of the establishment of a benefit account to raise any issue of disqualification or any issue of eligibility. Minn. Stat. §268.101 subd. 1(b) (2000). An issue raised more than ten calendar days after sending of the notice shall be considered untimely. Id. Here, the department sent its notice to the employer on June 24, 2000. On June 30, 2000, the employer’s agent faxed its response, noting that “the claimant was discharged for violation of [city] policy, unbecoming behavior of a Public Official, Code of Conduct.” This raised an issue of disqualification.
Regardless, Minnesota law provides that
[t]he commissioner shall determine any issue of disqualification raised by information required from an applicant * * * even if a notified employer has not raised the issue of disqualification.
Minn. Stat. §268.101, subd. 2(b) (2000). In her application for benefits, Carruthers indicated that she was “falsely accused of drug abuse and in-appropriate behavior while on duty.” This statement was also sufficient to raise the issue of disqualification.
 A dilute result means a conclusion could not be made based on the sample because it was diluted—this can result from the consumption of a large quantity of water before the test is administered.