This opinion will be unpublished and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

A03-517

 

Andrea L. Theisen,
Relator,

vs.

Fond du Lac Management, Inc.,
Respondent,


Commissioner of Employment and Economic Development,
Respondent.

 

Filed October 21, 2003

Affirmed

Stoneburner, Judge

 

Department of Employment and Economic Development

File No. 19197 02

 

Andrea L. Theisen, 209 North 27thAvenue West, Duluth, MN 55806 (pro se relator)

 

Lee B. Nelson, M. Kate Chaffee, 390 North Robert Street, St. Paul, MN 55101 (for respondent Employment and Economic Development)

 

            Considered and decided by Stoneburner, Presiding Judge, Toussaint, Chief Judge, and Shumaker, Judge.

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

             Relator challenges the determination that she was terminated for misconduct and is therefore required to repay $3,914 in benefits.  At a minimum, she seeks a remand for another hearing.  Because relator is not entitled to another hearing and the record supports the determination that she is not entitled to unemployment benefits, we affirm.

FACTS[1]

 

            Relator was terminated from her job as a “slot attendant,” which requires possession of a gaming license, at the Black Bear Casino and Hotel for Fond Du Lac Management, Inc., after suspension of her gaming license.  Relator’s gaming license was suspended because she was arrested and charged with a felony for giving false information to police about whether a certain individual was in her home. 

            Relator initially received unemployment benefits, but her employer appealed the determination that she was entitled to receive benefits.  A hearing was scheduled, and department records show that notice of the hearing was mailed to relator at the address she provided to the department.  Neither relator nor her employer appeared at the hearing.  The unemployment law judge (ULJ) proceeded with the hearing based on documents submitted and concluded that relator was terminated for aggravated employment misconduct.

            Relator appealed, arguing that she did not receive notice of the hearing and was therefore entitled to another opportunity to be heard, and asserting that she was wrongfully terminated and should be entitled to benefits.  The commissioner’s representative rejected relator’s claim that she was entitled to another hearing, noting that the notice was mailed to the address she provided and that she had filed her appeal within two days of mailing of the ULJ’s decision, which was mailed to the same address.

            Because the record did not establish that relator was charged with a felony, the commissioner’s representative found that there was insufficient evidence to establish aggravated employment misconduct.  But without a gaming license, relator was no longer qualified to be employed as a slot attendant and her employment had to be terminated.  Based on the record, the commissioner’s representative concluded that relator’s gaming license was suspended as a result of conduct that led to her arrest and relator knew that her arrest could result in the loss of her gaming license.  The commissioner’s representative found that the conduct that led to relator’s arrest was negligent or indifferent, demonstrating a substantial lack of concern for her employment.  The commissioner’s representative affirmed the ULJ’s determination, modified to reflect misconduct.  This certiorari appeal followed.

D E C I S I O N

 

            “The Commissioner is accorded deference when exercising discretion to decide remand requests, and this court has declined to overrule the Commissioner when the refusal to remand was based on a party’s failure to submit testimony at the referee hearing.”  Goodwin v. BPS Guard Servs., Inc., 524 N.W.2d 28, 30 (Minn. App. 1994) (citing Turnquist v. Amoco Oil Co., 397 N.W.2d 442, 444-45 (Minn. App. 1986) (affirming commissioner’s refusal to remand for additional testimony even though party was not represented by counsel at the hearing); Wicker Enters., Inc. v. Dahler, 347 N.W.2d 543, 544 (Minn. App. 1984) (affirming commissioner’s refusal to remand when one party failed to attend the hearing because of a conflict and never requested a continuance).  Further, the commissioner’s representative’s findings are reviewed in the light “most favorable to the decision and [the court] will not disturb them as long as there is evidence that reasonably tends to sustain those findings.”  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002). 

            Relator argues that she is entitled to a new hearing before the ULJ because she did not receive notice of the hearing.  According to Minn. R. 3310.2910 (2001), notice of the hearing is mailed to each party “at the last known address at least ten days before” the date of the hearing.  The commissioner’s representative properly relied on department records showing that relator contacted the department to change her mailing address more than a month before notice of hearing was mailed.  See Minn. Stat. § 268.105, subd. 1(b) (2002) (“report of any employee of the department . . . made in the regular course of the employee’s duties, shall be competent evidence of the facts contained in it”).  The commissioner’s representative drew a logical inference that notice of the hearing was mailed to the correct address based on the date that the correct address was provided and on the fact that relator appealed the ULJ’s decision within two days of the date it was mailed to the same address.  Because there is evidence reasonably tending to sustain the findings of the commissioner’s representative regarding whether relator received notice of the hearing, we affirm the determination that relator was not entitled to a new hearing.

            Whether an employee engaged in disqualifying misconduct is a mixed question of fact and law.  Schmidgall, 644 N.W.2d at 804.  Findings of fact will be reviewed in the light most favorable to the decision.  Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996).  These findings will not be disturbed as long as the evidence in the record reasonably tends to sustain them.  Schmidgall, 644 N.W.2d at 804.  But whether the particular act at issue constitutes disqualifying misconduct will be reviewed de novo as a question of law.  Id.

            An employee who is discharged for misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4(1) (2002).  Employment misconduct is defined in relevant part as “negligent or indifferent conduct, on the job or off the job, that demonstrates a substantial lack of concern for the employment.”  Id., subd. 6(a)(2) (2002).

            The commissioner’s representative determined that relator engaged in employment misconduct because she was negligent or indifferent to the substantial interest her employer had in employing only licensed gaming officers as slot attendants.  The limited record supports the decision of the commissioner’s representative.

            According to a department exhibit, a representative of Fond Du Lac Management, Inc., stated that, under the tribe’s compact with the state, only licensed gaming officials are allowed to work as slot attendants.  And department exhibits relied on by the commissioner’s representative demonstrate that relator was aware that she could be discharged for losing her gaming license.  Question six on the department questionnaire asks, “Did you know you could be discharged [for the final incident that caused you to be discharged]?”  In response, relator wrote “yes.”  The questionnaire also asked what could have been done to avoid being discharged.  Relator responded, “By being aware of the laws.”  Relator’s answers on the questionnaire support the commissioner’s representative’s determination that she was negligent or indifferent to the fact that her conduct would lead to arrest and suspension of her gaming license, which disqualified her from employment as a slot attendant.  Fond Du Lac Management, Inc., had the right to reasonably expect relator to maintain her status as a licensed gaming official, and relator violated that expectation when the gaming commission suspended her license.  The record supports the commissioner’s representative’s determination that relator was not entitled to unemployment benefits.

            Affirmed. 

 



[1] Both parties filed documents on appeal that were not submitted during the administrative process and are therefore not properly before this court.  The opinion is based only on the record reviewed by the commissioner’s representative.  See Minn. Stat. § 268.105, subd. 2(c) (2002) (decision of commissioner’s representative made “on the basis of that evidence submitted at the hearing” before the unemployment law judge).