This opinion will be unpublished and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

C5-01-672

 

James A. Haywood,

Relator,

 

vs.

 

Qwest Corporation,

Respondent,

 

Commissioner of Economic Security,

Respondent.

 

Filed ­­­October 30, 2001

Affirmed

Forsberg, Judge*

 

Department of Economic Security

Agency File No. 5401

 

James A. Haywood, 121 Washington Avenue South, #1101, Minneapolis, MN 55401 (relator pro se)

 

Jeanette M. Bazis, Greene Espel, P.L.L.P., 333 South Seventh Street, Suite 1700, Minneapolis, MN 55402 (for respondent Qwest Corporation)

 

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

 

            Considered and decided by Willis, Presiding Judge, Lansing, Judge, and Forsberg, Judge.


U N P U B L I S H E D   O P I N I O N

 

FORSBERG, Judge

The commissioner’s representative found that relator had violated his employer’s policy by repeatedly using the employer’s equipment to access the Internet for personal reasons and concluded that this was misconduct.  Because the finding is supported by the record and the conclusion is not contrary to the statutory mandate, we affirm.

FACTS

            When respondent Qwest Corporation employed relator James Haywood in November 1999, it provided him with a copy of its Code of Business Ethics and Conduct.  The code provided in relevant part that:

[e]mployees may not use [Qwest]-owned or leased equipment for personal use without their supervisor’s prior approval including, for example, motor vehicles, tools and computers. [Qwest] may inspect and exercise control over any and all of its documents, equipment, facilities and other property at any time, with or without notice.

 

Relator signed a statement saying that he had read and taken the required training on the Qwest code. 

            Qwest learned that relator was in the habit of accessing the Internet for personal use from his work station during his work hours. Qwest conducted an investigation during which relator was presented with documentary evidence showing that, between June 19, 2000, and July 14, 2000, he accessed the Internet on 11 days; on one day he had spent 2 hours 35 minutes, on another 1 hour 41 minutes, and on a third 1 hour 7 minutes.  Relator agreed that this evidence was accurate and explained that he had accessed various sites as he looked for a shotgun and a telescope, checked on Hawaiian vacation spots, found information on bonsai trees, visited cartoon and movie websites, looked up recipes for his wife, and discussed a custody issue between his wife and her ex-husband with an attorney in Nevada.

Qwest terminated relator in August 2000, contending that he had committed misconduct by repeatedly using its equipment to access the Internet.  Relator applied for unemployment benefits on the ground that that his accessing of the Internet on Qwest equipment was not misconduct because he had been given permission. The Department of Economic Security (DES) found that relator was entitled to benefits because he did not commit misconduct, and Qwest appealed. Following a hearing during which relator testified he was aware that he could be discharged for using the Internet without a supervisor’s permission, an unemployment law judge nevertheless found that relator had not been aware that his Internet use could lead to a discharge and affirmed.  Qwest again appealed, and the commissioner’s representative reversed, finding that relator was not entitled to benefits because he had been guilty of misconduct.  Relator challenges that determination.

D E C I S I O N

 

            On appeal, a reviewing court must examine the decision of the commissioner’s representative, rather than that of the reemployment insurance judge.  Kalberg v. Park & Recreation Bd., 563 N.W.2d 275, 276 (Minn. App. 1997).  The determination that an employee is disqualified from receiving benefits 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).  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.”  Id.

            Relator concedes that he frequently used Qwest’s computer for personal Internet access in violation of Qwest’s policy, but contends that his supervisors authorized that use.  Relator’s immediate supervisor, however, testified that he had never given relator authorization to go on to the Internet and that relator had never requested authorization; relator’s testimony confirmed that he had never asked his immediate supervisor for authorization.  The supervisor testified that only two other people had authority to permit relator to access the Internet for personal use.  One of them testified that he did not recall giving relator permission to go on the Internet, and relator did not testify that he had ever asked the other for permission.  Relator did testify that he had asked a fellow employee for permission, but that employee testified that he was not relator’s supervisor and had no authority to permit his personal use of the Internet.  The finding that relator committed misconduct by accessing the Internet on company equipment for personal reasons was not without support in the evidence and the conclusion of law that relator committed misconduct is not contrary to the statutory mandate. [1]         

            Affirmed.

           



* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] Relator’s argument that other employees did the same thing is irrelevant. See Sivertson v. Sims Sec., Inc., 390 N.W.2d 868, 871 (Minn. App. 1986) (affirming denial of benefits following a discharge based on misconduct and holding that “[w]hether or not other employees violated those same rules and were disciplined or discharged is not relevant here.”).