This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







Laura A. Kerber,





Dairy Queen Operators Assn., Inc.,



Commissioner of Employment and

Economic Development,



Filed July 22, 2003


Hudson, Judge


Department of Employment and Economic Development



Warren M. Horner, 8149 Westwood Hills Drive, Minneapolis, Minnesota 55426 (for respondent Kerber)


Tamika R. Nordstrom, Briggs and Morgan, P.A., 2400 IDS Center, 80 South Eighth Street, Minneapolis, Minnesota 55402 (for relator)


M. Kate Chaffee, Lee B. Nelson, 390 North Robert Street, St. Paul, Minnesota 55101 (for respondent Commissioner)


            Considered and decided by Klaphake, Presiding Judge, Willis, Judge, and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N


Relator Dairy Queen filed this certiorari appeal, claiming that the evidence does not support the commissioner’s representative’s determination that Kerber was terminated for reasons other than misconduct.  Because we find reasonable support in the record for the commissioner’s representative’s decision, we affirm.


            Laura Kerber worked for Dairy Queen Operators Association (Dairy Queen) as an administrative assistant from October 23, 2000, until March 15, 2002.  Prior to distribution of an employee handbook prohibiting use of Dairy Queen computers for “personal use,” Kerber frequently used her computer to transmit e-mail messages, via instant messaging, to a coworker.  But Kerber was not notified until a March 6, 2002, staff meeting that such use was prohibited.  Although Kerber’s supervisor, Darcy Dilly, testified that Dairy Queen employees knew prior to the March 6, 2002, meeting that office computers were for office use only, the record reflects that Kerber did not know she was prohibited from using the computer for personal reasons and was never reprimanded for doing so.

At a March 6, 2002, staff meeting, management distributed a written personnel handbook and briefly explained the policies it contained.  Specifically, the handbook prohibited an employee’s “personal use” of the computers.  The handbook also provided an e-mail policy and that the e-mail system is designed to “assist in the conduct of business within” Dairy Queen.  “The use of the [e-mail] system is reserved solely for the conduct of business at [Dairy Queen].  It may not be used for personal business.”  Finally, “[a]ny employee who violates this policy or uses the [e-mail] system for improper purposes shall be subject to discipline, up to and including discharge.”  The handbook did not explicitly prohibit instant messaging.[1]

The day before Kerber’s termination, Dairy Queen sent its employees home early due to a snowstorm, while Dilly and another manager stayed to finish a newsletter.  When Dilly turned on Kerber’s computer, instant messaging between Kerber and another employee appeared on the screen.  The context of the instant messaging predominately related to whether, consistent with Dairy Queen's past practice, Good Friday was considered a paid holiday, given a provision in the new handbook that suggested it was not.  The next day, Dilly terminated Kerber for violating the computer policy.  But Dilly also testified that, had Kerber spoken the words out loud to her coworker, she probably would not have been discharged. 

Kerber applied for unemployment benefits, and the department denied her application.  An unemployment-law judge affirmed that denial on the basis that she was terminated for employment misconduct.  The commissioner’s representative reversed, deciding that, while her conduct may have been inadvertent or negligent, it did not rise to the level of employment misconduct.  The commissioner’s representative found that, after the March 6, 2002, staff meeting, Kerber understood that she was prohibited from using e-mail for personal reasons, but believed she could still use e-mail for business purposes.  Therefore, Kerber did not know that she was violating company policy when using instant messaging to discuss whether Good Friday was a paid company holiday.  This certiorari appeal by Dairy Queen followed.


            The scope of review in an economic-security case is narrow:  where there is evidence reasonably tending to support the findings of a commissioner’s representative, this court will not disturb them.  Kalberg v. Park & Recreation Bd. of Minneapolis, 563 N.W.2d 275, 276 (Minn. App. 1997).  We review the factual findings of the commissioner’s representative in a light most favorable to the decision.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  This court reviews only the commissioner’s representative’s findings, not those of the unemployment-law judge, even in cases involving credibility determinations.  Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996).  This court defers to the commissioner’s representative’s “ability to weigh the evidence” where the parties have set forth conflicting evidence.  Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995).

            Dairy Queen contends that the record does not support the commissioner’s representative’s conclusion that Kerber’s conduct was negligent or inadvertent and did not constitute misconduct.  We disagree.

            The commissioner’s representative found that Kerber’s belief concerning her use of instant messaging was reasonable given the circumstances.  The record supports this factual finding.  The handbook clearly states that office computers should not be used for personal reasons.  The handbook also states that e-mail should not be used for personal reasons.  But the general language in the handbook does not make clear that “personal use” is meant to encompass, as Dairy Queen now argues, anything other than communications necessary to the performance of an employee’s job.  More importantly, the handbook does not put employees on notice that instant messaging or e-mail is prohibited among co-workers concerning work-related topics.  The subject of the communication at issue—whether Good Friday is a paid holiday—is clearly work-related.  Although several lines of the message were not work-related, the overwhelming majority of the message is devoted to whether Good Friday is a paid holiday in light of the apparent discrepancy between the new handbook and a prior office memorandum.

            In its reply brief, Dairy Queen asserts that the commissioner’s representative “implicitly found that Kerber’s conduct was a violation of [Dairy Queen’s] policies.”  This position is not supported by the record.  The commissioner’s representative stated that “[t]he evidence does not show that [Kerber] deliberately violated [Dairy Queen’s] policy after [Kerber] received a copy of [Dairy Queen’s] handbook and after [Kerber] attended a meeting to explain the handbook.”  The commissioner concluded that “a preponderance of the evidence shows that [Kerber] was discharged for reasons other than misconduct.” 

Because the evidence in the record reasonably supports the commissioner’s representative’s decision, we will not disturb it.


[1] Instant messaging is a form of e-mail, but unlike e-mail, instant messaging allows users to immediately send and receive messages in “real time.”