This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
Lynn M. Sabin,
Federal Reserve Bank,
Commissioner of Economic Security,
Filed May 6, 2003
Department of Economic Security
File No. 345102
Andrew E. Tanick, Paula Duggan Vraa, Rider, Bennett, Egan & Arundel, LLP, 333 South Seventh Street, Suite 2000, Minneapolis, MN 55402 (for relator)
Kristina Stierholz, Susan Rossbach, Federal Reserve Bank of Minneapolis, 90 Hennepin Avenue, Minneapolis, MN 55480 (for respondent Federal Reserve Bank)
M. Kate Chaffee, Lee B. Nelson, Lyndsay Larson (certified student attorney), Minnesota Department of Economic Security, 390 North Robert Street, St. Paul, MN 55101 (for respondent commissioner)
Considered and decided by Shumaker, Presiding Judge, Randall, Judge, and Wright, Judge.
GORDON W. SHUMAKER, Judge
Relator challenges the Department of Economic Security (DES) commissioner’s representative’s ruling that she was discharged from working at the Federal Reserve Bank for employment misconduct. Because the evidence shows that the commissioner’s representative properly found that Sabin was discharged for employment misconduct, we affirm.
Relator Lynn Sabin worked at the Federal Reserve Bank as a management analyst in the change-control unit, which develops software for the processing of automatic electronic payments. Each day, Sabin’s department processed 20 to 25 million electronic-payment transactions totaling about $16 billion and serving the entire nation.
During a routine investigation of recorded telephone calls regarding a customer issue, the bank discovered that two bank employees, Theresa Morgel and Becky Thompson, were possibly engaging in illegal drug transactions. Thompson admitted to the bank that she asked Morgel to obtain drugs for her husband. The bank terminated both, but before they left they told the bank that no other employees were involved in their illicit activities.
While reviewing Thompson’s and Morgel’s e-mails and recorded telephone calls, the bank discovered an e-mail and recorded telephone call between Morgel and Sabin that appeared to implicate Sabin in the drug activity. On November 8, 2001, Morgel sent Sabin an e-mail that stated:
I plan on stopping by tonight so I’ll talk to you then but of course I can’t leave you with just that til tonight so I’ll briefly explain. I don’t always tally things up as I take money out or make purchases for you. I keep the receipts and then after I have a few I do my calculating. When I see my friend I may use your card for cash to give to her but then I deposit checks back in for what I take for myself. I keep those receipts to tally as well. I gathered all the receipts tonight because I hadn’t calculated in a quite a while and figured I should do so. Here is what I came up with * * * . I have withdrawn approximately $436.00 more dollars using your card than I have deposited (on my behalf) or spent on you and your purchases. I have went over things several times and can not come up with anything that I may be missing so the bottom line is, as of tonight, without any further withdrawal’s, you have $436.00 available for me to purchase dinners, cigs, stuff, and other misc. items for yourself. I apologize, this was very irresponsible of me. I obviously have been seeing my friend for my stuff way too much!!! I have to go now it’s getting very late but I’ll talk to you tonight. I hope you aren’t too mad at me I am very sorry.
Sabin alleged that she had given Morgel her ATM card to purchase groceries for her when she was ill in late 1999 and 2000. When she read the e-mail, Sabin contends that she was angry with Morgel and simply deleted the message.
On December 14, 2001, while at home, Sabin called Morgel at work and left a message on Morgel’s bank voice-mail that stated: “Hey, Terr it’s me. Give us a call will you please? Bye.” Morgel returned Sabin’s telephone call from her work telephone, and their conversation was:
TM: I forgot to give you the stuff.
LS: Did you know that’s what I was calling about?
TM: No, no. I thought, God, I got right on the highway and I went “Ah shit!”
LS: That’s what I was callin’ about.
TM: Well, and I stood there and I walked around in a circle a couple times.
LS: And then I thought maybe you did it. And then I went and looked.
TM: ‘Cause I felt like I was missing or forgetting something.
LS: We tried to catch you but you were outside already.
LS: So we ran out there but I wasn’t runnin’ down no steps.
LS: Yeah, I looked and thought maybe you just stuck it in there but you didn’t.
LS: So I figured I’d give you a call.
TM: But, um, I can stop by and drop it off if you want me to.
LS: That’s cool, that’d be nice.
TM: Are you gonna be home?
LS: All right, that’s cool.
LS: Um, or else you can drop it off when you get him or whatever.
TM: Well are you out?
LS: I got a little bit, I don’t got enough for two days though.
TM: Yeah, well . . .
LS: I don’t know how long he’s stayin’.
TM: It shouldn’t be a big deal I can drop some off somehow.
When bank officials questioned Sabin about this telephone call, she first claimed that she did not recall what it was about, but later stated that it was about buying Christmas gifts for Morgel’s son, and Sabin’s godchild, on their annual shopping trip. Sabin also said that she did not know what the e-mail was about. The bank terminated Sabin for employment misconduct for using the bank’s e-mail and recorded telephone lines to organize the exchange, distribution, or receipt of drugs. The bank did not find Sabin’s explanations credible and could not trust her to remain in her very sensitive employment position.
After terminating Morgel and Sabin, the bank discovered Morgel’s desk calendar on which she recorded calculations of deposits and purchases that she made for Sabin with her ATM card. One page of the calendar shows that Morgel owed Sabin $436 as referred to in the November 8, 2001 e-mail. Morgel itemized purchases, such as: $6 for dinners, $2 for milk, $4 for oven cleaner, $3 for garbage bags, $50 or “$100 for stuff,” and miscellaneous. Sabin denied knowing what “stuff” referred to in the calendar.
The DES granted Sabin’s application for unemployment compensation because it did not find that she was terminated for employment misconduct. An unemployment law judge affirmed the DES’s determination finding that even if Sabin was purchasing illegal drugs, she did not use the bank’s equipment to engage in illicit activities.
On appeal the commissioner’s representative concluded that Sabin’s explanation that “stuff” meant money for Christmas gift shopping with Morgel’s son was not credible, considering the wide rein that Morgel had with Sabin’s money. The commissioner’s representative found that Sabin’s explanation that she did not know what Morgel meant by “stuff” in the e-mail was not credible because the e-mail was addressed only to Sabin, Morgel’s good friend, and Morgel would not have used the word “stuff” if she did not believe that Sabin knew what it referred to. The commissioner’s representative also believed that Sabin was not angry when she read the e-mail because she acted as if everything was fine when she talked to Morgel on December 14, 2001, and she did not restrict Morgel’s use of her ATM card. In addition, the commissioner’s representative believed that “stuff” was not a catchall term because it was one of several separately itemized entries. The commissioner’s representative ruled that Sabin used bank equipment for illicit drug activities when she opened the e-mail and when she initiated contact with Morgel by leaving a voice message on the bank’s voice-mail system asking Morgel to call her back. Sabin appeals the commissioner’s representative’s decision.
D E C I S I O N
When reviewing the DES’s determination about an employee’s qualifications for unemployment-compensation benefits, we review the commissioner’s representative findings rather than the unemployment law judge’s findings. Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995). The current law places no burden of proof on either party. See Minn. Stat. § 268.105, subd. 1(b) (2002). We review the commissioner’s representative’s findings in the “light most favorable to the decision, and if there is evidence reasonably tending to sustain them, they will not be disturbed.” White v. Metro. Med. Ctr., 332 N.W.2d 25, 26 (Minn. 1983).
The commissioner’s representative’s findings are a mixed question of law and fact. Colburn v. Pine Portage Madden Bros., Inc., 346 N.W.2d 159, 161 (Minn. 1984). The commissioner’s representative determines “[w]hether an employee committed the specific act or acts alleged to be misconduct,” which is a fact question. Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997). We have de novo review to determine whether the relator’s actions constitute employment misconduct, thus disqualifying the relator from receiving unemployment compensation. Ress v. Abbott N.W. Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989). We do not address whether the relator should have been terminated, but we address whether the relator qualifies for unemployment compensation benefits. See Hansen v. C. W. Mears, Inc., 486 N.W.2d 776, 780 (Minn. App. 1992), review denied (Minn. July 16, 1992).
1. Support for factual findings in the record
The commissioner’s representative did not believe Sabin’s explanations that Morgel was buying groceries and gifts with Sabin’s ATM card and that Sabin did not know for sure the meaning of “stuff.” The representative noted:
It does not make sense that [Sabin] would ask for cash from [Morgel] to cover the expenses of taking [the son] shopping, but would at the same time allow [Morgel] free access to [Sabin’s] bank account to remove cash for herself.
As a general rule, we leave credibility assessments to the commissioner’s representative. Jenson v. Dep’t of Econ. Security, 617 N.W.2d 627, 631 (Minn. App. 2000), review denied (Dec. 20, 2000).
Circumstantial evidence can support the commissioner’s representative’s ruling regarding an employee’s misconduct. Cokley v. City of Ostego, 623 N.W.2d 625, 633 (Minn. App. 2001), review denied (Minn. May 15, 2001). The circumstantial evidence substantially supports the commissioner’s representative’s conclusion that Sabin was involved in illicit drug activity with Morgel. Morgel admitted that she was a source for obtaining drugs for another employee. Morgel’s open-ended use of Sabin’s ATM card to buy items that included “stuff”; Morgel’s apology for overdrawing the card and her acknowledgment that she had been seeing her “friend for my stuff way too much”; Sabin’s telephone call about Morgel’s failure to deliver “the stuff”; and Morgel’s question of whether Sabin had run out of it and Sabin’s reply that, “I got a little bit, I don’t got enough for two days though,” provide a compelling inference that “stuff” was the word the employees used for drugs and that they were using bank equipment to transact sales and purchases of drugs.
2. Application of Minn. Stat. § 268.095 (2002)
The second issue is whether Sabin’s acts constituted “use” of bank equipment for the exchange of drugs and, therefore, employment misconduct under Minn. Stat. § 268.095, subd. 6(a)(1). Under Minn. Stat. § 268.095, subd. 4(1), an employee is disqualified from eligibility for unemployment compensation if discharged for employment misconduct. Minn. Stat. § 268.095, subd. 6(a)(1), defines employment misconduct as
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.
But employment misconduct does not include “[i]nefficiency, inadvertence, simple unsatisfactory conduct, poor performance because of inability or incapacity * * * .” Id., subd. 6(2)(b).
The supreme court has defined intentional conduct as “deliberate” and “not accidental.” Houston v. Int’l Data Transfer Corp., 645 N.W.2d 144, 149 (Minn. 2002). We focus on Sabin’s intentional act of leaving a message on the bank’s voice-mail system asking Morgel to return her call and the purpose of the call to Morgel being to set up a drug exchange. These facts demonstrate that Sabin’s actions to set up a drug exchange were deliberate.
The second prong of the Houston test for employment misconduct is that Sabin
engaged in conduct that evinced an intent to ignore or pay no attention to * * * her duties and obligations or the standards of behavior the employer has a right to expect.
Houston, 645 N.W.2d at 150.
Although Sabin was off-duty when she used the bank’s voice-mail and recorded telephone lines for a drug exchange, she showed total disregard for jeopardizing the bank’s integrity and reputation by using bank equipment to engage in illegal drug sales. Thus, we uphold the decision by the commissioner’s representative that Sabin was discharged for employment misconduct under Minn. Stat. § 268.095, subd. 6(a)(1), and is disqualified from receiving unemployment-compensation benefits.