This opinion will be unpublished and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

C0-02-1707

 

Diana B. Christian,
Relator,

vs.

Irresistible Ink, Inc.,
Respondent,

Commissioner of Economic Security,
Respondent.

 

 

 Filed May 20, 2003

Affirmed

Peterson, Judge

 

Department of Economic Security

File No. 369902

 

 

Diane B. Christian, 519 Seventh Street, Apt. 1, Two Harbors, MN  55616-1443 (pro se relator)

 

Irresistible Ink Inc., 320 Miners Drive East, Ely, MN  55731 (respondent)

 

M. Kate Chaffee, Lee B. Nelson, Minnesota Department of Economic Security, 390 North Robert Street, St. Paul, MN  55101 (for respondent commissioner)

 

 

            Considered and decided by Lansing, Presiding Judge, Peterson, Judge, and Wright, Judge.


U N P U B L I S H E D    O P I N I O N

PETERSON, Judge

            Relator Diana B. Christian challenges the decision by a representative of respondent Commissioner of Economic Security that she is disqualified from receiving unemployment compensation benefits because she was discharged from her employment with respondent Irresistible Ink, Inc. for misconduct.  We affirm.

FACTS

            Christian worked for Irresistible Ink as a hand writer.  Her job was to write personalized greeting cards.  Christian was paid an hourly wage, but Irresistible Ink had a quota for the number of cards each employee was to write each hour and required employees to record how many cards they wrote each day.  The production numbers were used for inventory purposes, client billing, and to determine pay raises and employee scheduling. 

Irresistible Ink’s employee handbook provides:

The following may result in immediate termination without warning:

            1.         Falsification of records.

2.         Deliberate or repeated negligence or misrepresentation in reporting hours worked, production quantities, and other reports.

 

Christian signed and returned an acknowledgment of her receipt of the employee handbook.

            On December 19, 2001, project leader Bobbie Ross and production manager Nancy Walker met with Christian to discuss a discrepancy between her reported production numbers and the number of cards that Christian actually wrote.  Christian was warned that her work would be monitored and that falsifying her numbers could result in immediate termination.  Following this warning, Christian’s work was audited from January 14, 2002, through January 23, 2002.  The audit revealed that each day that Christian worked, she reported that she had written more cards than she had actually written.

            On January 24, 2002, Christian’s employment at Irresistible Ink was terminated.  Walker testified that Christian was terminated because “[s]he continued to lie on her productivity sheets.”  Christian testified that she was told that she was terminated because she did not “fit into their criteria.”

D E C I S I O N

An employee discharged for employment misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4(1) (2002). 

                                    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.

 

Minn. Stat. § 268.095, subd. 6(a) (2002).  To be intentional, the conduct must be deliberate and not accidental.  Houston v. Int’l Data Transfer Corp., 645 N.W.2d 144, 149 (Minn. 2002).  Under Minn. Stat. § 268.095, subd. 6(a)(1), there must also be

a sufficient showing in the record that the employee not only engaged in intentional conduct, but also intended to, or engaged in conduct that evinced an intent to, ignore or pay no attention to his or her duties and obligations or the standards of behavior the employer has a right to expect.

 

 Id. at 150.  “A single incident can constitute misconduct when an employee deliberately chooses a course of conduct that is adverse to the employer.”  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 806 (Minn. 2002) (citations omitted).

Whether an employee has committed employment misconduct presents 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 the specific act or acts alleged to be misconduct is a question of fact.”  Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  “But whether the acts constitute misconduct is a question of law.”  Id. 

Issues of fact are determined by a preponderance of the evidence.  Minn. Stat. § 268.03, subd. 2 (2002).  The factual findings of the commissioner’s representative are “viewed 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) (citation omitted).  This court reviews de novo whether the employee’s actions constitute employment misconduct that disqualifies the employee from receiving unemployment benefits.  Ress v. Abbott N.W. Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).

Because Irresistible Ink used production numbers to bill clients, keep track of inventory, schedule employees, and review employee performance, it had a right to expect Christian to accurately record the number of cards that she wrote.

Christian acknowledges that she received a warning in December for submitting inaccurate production numbers, but she disputes that her numbers on the January production reports were inaccurate.  Walker testified that she verified that Christian’s numbers were inaccurate. 

When the parties have presented conflicting evidence on the record, this court must defer to the Commissioner’s ability to weigh the evidence; we may not weigh that evidence on review.

 

Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995) (citations omitted).  When conflicting testimony requires a credibility determination, we defer to the commissioner’s representative’s credibility determination.  Jenson v. Dep’t of Econ. Sec., 617 N.W.2d 627, 631 (Minn. App. 2000).

Viewing the evidence in the light most favorable to the commissioner’s representative’s decision, we conclude that the evidence reasonably tends to sustain the commissioner’s representative’s finding that “[o]n each day that [Christian] worked, she recorded that she had written more cards than she had actually written.”  Because this finding supports the commissioner’s representative’s determination that Christian’s “continued course of conduct after being warned evinced a disregard of the standards of behavior the employer had a right to expect of her,” we also conclude that Christian’s actions constitute employment misconduct.

Christian argued to the commissioner’s representative that her reporting errors were due to posttraumatic stress disorder and anxiety attacks.  But, as the commissioner’s representative found, Christian offered no medical documentation to support this claim.  Christian appended to her brief to this court (1) one page from a medical report prepared in 1996 that indicates that she suffers from major depression and (2) a letter written by a psychiatrist after the commissioner’s representative decided Christian’s appeal that indicates that Christian suffers from major depression and posttraumatic stress disorder.  But because these documents are not part of the record of the proceedings before the commissioner’s representative, this court cannot consider them on appeal.  See Deike v. Smelting, 413 N.W.2d 590, 592 (Minn. App. 1987) (pages of union contract appended to appellate brief could not be considered on appeal because not part of record).

Affirmed.