This opinion will be unpublished and

may not be cited except as provided by

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







Phyllis J. Swenson,





Wal-Mart Associates, Inc.,


Commissioner of Employment and Economic Development,




Filed October 28, 2003


Anderson, Judge


Department of Employment and Economic Development

File No. 13050 02


Phyllis J. Swenson, 35916 State Highway 78, Ottertail, MN  56571 (relator)


Wal-Mart Associates, Inc., Owatonna LOC, c/o Talx UCM Services, Inc., UC Express, P.O. Box 283, St. Louis, MO  63166-0283 (respondent); and


Lee B. Nelson, Philip B. Byrne, Minnesota Department of Employment and Economic Development, 390 Robert Street North, St. Paul, MN  55101 (for respondent commissioner)


            Considered and decided by Wright, Presiding Judge; Harten, Judge; and Anderson, Judge.

U N P U B L I S H E D  O P I N I O N




            Relator challenges the decision of the representative of the Commissioner of Employment and Economic Development that relator had committed employment misconduct that disqualified her from receipt of unemployment-insurance benefits.  Because we conclude that the commissioner’s representative’s findings of fact have reasonable evidentiary support, we affirm the disqualification.



            Respondent Wal-Mart (“Wal-Mart”) hired relator Swenson (“Swenson”) as a deli manager on February 14, 2001.  As a qualified employee of Wal-Mart, Swenson received the benefit of a 10% employee discount on most personal purchases made at Wal-Mart stores.  To receive the discount, Swenson used a discount card provided by Wal-Mart when she purchased goods from Wal-Mart stores. 

            Wal-Mart’s employee handbook sets forth the rules for eligibility for use of the employee discount card.  According to these rules, the employee, the employee’s husband, and the eligible dependents of the employee are entitled to use the card.  Swenson signed an acknowledgement form attesting to the fact that she both received and read a copy of the employee’s handbook. 

            On June 11, 2002, after Swenson’s work shift ended, she made personal purchases at the Wal-Mart store using her discount card.  Both Swenson’s daughter and a third person stood behind Swenson in the checkout line at the store.  This third person, a friend of Swenson’s daughter, was not eligible to use the discount card. 

            After Swenson made her purchases, the third person made purchases at the same cash register.  Swenson allowed the third person to use Swenson’s discount card to receive a 10% discount on her purchase.  Swenson’s daughter made purchases after the third person, and Swenson allowed her daughter to use the discount card as well.[1]   

            Swenson argues she inadvertently used her discount card for the third person, thinking that the purchases were her daughter’s.  The commissioner’s representative, however, credited the testimony of Robert Beck (“Beck”), store manager at Wal-Mart, who testified that Swenson knowingly handed her card to the third person and allowed the card to be swiped by the third person.  Beck testified that Wal-Mart retained a surveillance videotape of the incident.     

            Both Swenson and her daughter testified that they were unaware that the third person had received the discount until after they left the store.  But even after learning of the undercharge to the third person, Swenson never attempted to correct it; there is no evidence in the record that Swenson ever brought the transaction to the attention of Wal-Mart. 

            On June 18, 2002, Wal-Mart representatives questioned Swenson about the June 11 incident.  On June 19, 2002, Swenson was fired by Wal-Mart for discount card abuse.

            Swenson testified that she has never knowingly allowed a person outside her family to use her discount card, that she had never been shown any proof of other incidences of abuse, that she had never been reprimanded for other abuses, and that she had not received any warnings about discount card abuse.  Swenson also argued that despite the fact that other employees had committed discount card abuse, she was the only employee terminated for the indiscretion.  Further, Swenson argues Wal-Mart did not follow its own employee handbook procedures when it terminated Swenson without coaching her for improvement or informing her that discount card abuse would be punishable by termination. 



The commissioner’s representative found that Swenson had committed employment misconduct that disqualified her from receipt of unemployment-insurance benefits.  Before this determination, both the department adjudicator and the unemployment law judge decided in Swenson’s favor.  On appeal, a reviewing court examines the decision of the commissioner’s representative, not the decision of the unemployment law judge.  Kalberg v. Park & Recreation Bd., 563 N.W.2d 275, 276 (Minn. App. 1997).  Because the commissioner’s representative decided against Swenson, it is irrelevant that earlier determinations on Swenson’s unemployment eligibility by the department adjudicator and unemployment law judge were decided in her favor; this court will only review the decision of the commissioner’s representative.

The commissioner’s representative’s decision is accorded “particular deference” by a reviewing court.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  The commissioner’s representative’s factual findings are viewed in the light most favorable to the commissioner’s representative’s decision; the decision is not disturbed if the evidence reasonably tends to sustain the commissioner’s representative’s findings.  Schmidgall v. Filmtec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  Further, this court defers to the commissioner’s representative’s ability both to weigh conflicting evidence, Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995), and to make credibility determinations about proffered testimony.  See Jenson v. Dept. of Econ. Sec., 617 N.W.2d 627, 631 (Minn. App. 2000), review denied (Dec. 20, 2000); Youa True Vang v. A-1 Maint. Serv., 376 N.W.2d 479, 482 (Minn. App. 1985).  These credibility determinations should not be disturbed unless a reviewing court finds that they are without reasonable support in the record.  See Jenson, 617 N.W.2d at 631.

Here, after listening to the testimony of both Swenson and Beck, the commissioner’s representative found Swenson’s testimony unbelievable and Beck’s testimony persuasive.  Although the testimony conflicted in this case, it was not unreasonable for the commissioner’s representative to rely on Beck’s testimony that he had personally viewed a surveillance video of Swenson’s discount card abuse on June 11, 2002.  Because of the high level of deference for the commissioner’s representative’s determinations, including decisions weighing conflicting evidence, making credibility determinations, and determining the presence of reasonable testimonial evidence supporting the commissioner’s representative’s findings of fact, we affirm the findings of fact of the commissioner’s representative.

Although a reviewing court generally defers to the commissioner’s representative’s factual findings, the court exercises independent judgment with respect to questions of law.  Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).  In cases of employee misconduct, “[w]hether an employee engaged in conduct that disqualifies the employee from unemployment benefits is a mixed question of fact and law.”  Schmidgall, 644 N.W.2d at 804.  In these cases, 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 statutory mandate.”  Colburn v. Pine Portage Madden Bros., 346 N.W.2d 159, 161 (Minn. 1984).  

Here, the evidence in the record reasonably supports the commissioner’s factual findings.  The commissioner’s representative found that Swenson knowingly allowed her card to be used by a person who was not eligible to use the card under Wal-Mart policy.   Because the commissioner’s representative’s findings of fact are reasonably supported by the evidence, this court must merely determine whether Swenson’s acts did indeed constituted “misconduct” rising to the level of unemployment-insurance benefit disqualification under Minn. Stat. § 268.095, subd. 6(a) (2002).

In Minnesota, an employee may be disqualified from unemployment benefits for acts of employment misconduct.  Minn. Stat. § 268.095, subd. 6(a)(1).  According to statute:

(a)   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.



            According to Houston v. Int’l Data Transfer Corp., a two-prong analysis determines whether an employee’s actions constitute “employment misconduct” under Minn. Stat. § 268.095, subd. 6(a).  645 N.W.2d 144, 149-50 (Minn. 2002).  The employee’s misconduct must “(1) be intentional and (2) disregard [either] standards of behavior the employer has a right to expect or the employee’s duties and obligations to the employer.”  Houston, 645 N.W.2d at 149.

            Swenson argues that she accidentally used her employee discount card, inadvertently allowing the third person to receive a 10% discount on her purchases.  Wal-Mart argues that Swenson deliberately passed her card back to be used.  The commissioner’s representative found that Swenson knowingly allowed an ineligible person to use her employee discount card.  It appears the commissioner’s representative made a credibility determination between the testimony of Swenson and Beck, and the commissioner’s representative credited Beck’s version of events.  Therefore, because Swenson intentionally handed her discount card back for use by an ineligible individual, her conduct satisfied the first prong of the Houston test.

            Swenson’s conduct also satisfied the second prong of the Houston test.  Swenson signed a written acknowledgement that she received and read an employment handbook from Wal-Mart, and Swenson testified that she was aware of the eligibility restrictions on her discount card.  Because Swenson allowed an ineligible individual to use her discount card when she was aware of Wal-Mart’s reasonable regulations regarding use of the discount card, Swenson committed employment misconduct.  See Schmidgall, 644 N.W.2d at 806 (finding an employee who refuses to comply with an employer’s reasonable policies and requests engages in employee misconduct).    We decline to reach Swenson’s remaining claims because those claims are unrelated to Swenson’s application for unemployment benefits.

Swenson was aware of her employer’s discount card policies, and she violated the standards of behavior that her employer had a right to expect when she allowed an ineligible person to use her discount card.  The commissioner’s representative, therefore, properly determined that Swenson was terminated for employment misconduct and Swenson is disqualified from receiving unemployment-insurance benefits.


[1] In respondent’s brief, Wal-Mart raises, for the first time, the issue of Swenson’s daughter’s eligibility to use the employee discount card.  Because this court concludes that Swenson committed misconduct by allowing a third person to use her card, we need not discuss the merits of this new argument.