This opinion will be unpublished and

may not be cited except as provided by

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







Tanya M. Scott,





Municipal Parking, Inc.,



Commissioner of Employment and

Economic Development,




Filed December 16, 2003


Hudson, Judge


Department of Employment and

Economic Development

File No. 14665 02


Peter B. Knapp, Krista L. Durrwachter (certified student attorney), William Mitchell Law Clinic, 875 Summit Avenue, St. Paul, Minnesota 55105 (for relator)


Robert J. Foster, Foster, Wentzell, Hedback, Brever, Arendt & Carlson PLLC, 2855 Anthony Lane South, Suite 201, St. Anthony, Minnesota 55418 (for respondent Municipal Parking, Inc.)


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


            Considered and decided by Harten, Presiding Judge; Hudson, Judge; and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N


In this certiorari appeal from the commissioner’s representative’s finding of employment misconduct, relator contends that she did not intentionally ignore her employment duties or violate the standards of conduct expected by her employer.  Because we are required to take the findings of the commissioner’s representative in the light most favorable to its decision, we affirm.


Municipal Parking, Inc., employed relator Tanya Scott from June 1992 until August 7, 2002.  Relator was employed as a full-time supervisor and bookkeeper.  Relator had an excellent work history until the last year and a half of her employment. 

            During the year prior to relator’s termination, she was late for work 93 times.  The commissioner’s representative found that relator failed to call in and notify her supervisors that she would be late for work.  On July 29, 2002, relator received a written warning for her excessive tardiness, and was suspended for five days for both her tardiness and insubordination. 

            Relator claims that she was chronically late for work because of her diabetes.  She claims that her doctor informed her that if her temperature or blood sugar was high she should remain at home until she recovered.  In addition, relator applied for, and was approved for, intermittent Family and Medical Leave Act (FMLA) leave in 2001 and 2002.  Relator claims she believed that attending work late was covered by her FMLA leave. 

            On August 5, 2002, after returning from her five-day suspension for tardiness, relator changed the parking ramp to “event mode” parking on the day of a Minnesota Twins baseball game, against company policy, and without authorization from her employer.[1]  The commissioner’s representative found that when relator was confronted about this incident, she became upset and called her supervisor a “bitch.”  Relator contests this finding, and states her supervisor did not clearly hear what she said and could not accurately remember the sequence of events.  Relator was terminated on August 7, 2002, and later claimed that what she actually said was:  “ain’t this a bitch . . . I’m getting fired for doing my job.” 

            On August 8, 2002, relator applied for unemployment benefits.  On August 23, 2002, the department determined relator was disqualified for benefits because she was terminated for employment misconduct.  Relator appealed this decision, and on appeal the unemployment law judge found relator was discharged for misconduct.  Relator again appealed this decision and the commissioner’s representative found relator was discharged for misconduct.  This certiorari appeal follows. 


When reviewing the Minnesota Department of Employment and Economic Development’s determination about an employee’s qualifications for unemployment benefits, we review the commissioner’s representative’s findings rather than the unemployment law judge’s findings.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  We have a narrow standard of review that requires us to view the commissioner’s representative’s findings in the light most favorable to the decision.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  We will not disturb the commissioner’s representative’s findings if there is evidence that reasonably tends to sustain them.  Id.  And we defer to the commissioner’s representative’s ability to weigh conflicting evidence.  Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995).

The commissioner’s representative’s findings are a mixed question of law and facts.  Colburn v. Pine Portage Madden Bros., Inc., 346 N.W.2d 159, 161 (Minn. 1984).  The commissioner’s representative determines the fact question, which is whether the employee commited the alleged acts of misconduct.  Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  We review de novo whether the employee’s actions constituted employment misconduct and disqualified the employee from receiving unemployment benefits under Minn. Stat. § 268.095, subds. 4, 6 (2002).  Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989). 

Here, relator contends that she did not commit misconduct pursuant to Minn. Stat. § 268.095, subd. 6(a) (2002), and interpreted by Houston v. Int’l Data Transfer Corp., 645 N.W.2d 144, 149-50 (Minn. 2002).[2]

Minn. Stat. §  268.095, subd. 6(a), defines employment misconduct as:

(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.


In Houston, the Minnesota Supreme Court determined that “to constitute employment misconduct, [the employee’s] conduct must (1) be intentional and (2) disregard 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.  Thus, the Houston analysis for employment misconduct requires 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.

            In this case, the commissioner’s representative found that relator committed employment misconduct by:  (1) continually arriving to work late without notifying her supervisor; (2) hanging up on a company auditor; (3) placing the parking ramp into “event mode” contrary to company policy; and (4) calling her supervisor a derogatory name.  The evidence supporting the commissioner’s representative’s findings is thin, but because our standard of review requires that we view the commissioner’s representative’s findings in the light most favorable to the decision, we affirm the commissioner’s representative’s decision.

We note that at the time of relator’s hearing before the unemployment law judge, there was conflicting evidence about many of the facts surrounding the alleged incidents of misconduct.  For example, relator’s supervisor claims she discussed the policy against switching the garage into “event mode” for daytime Twins games with relator.  But relator claimed that she was never told about the policy.  It is well settled, however, that when witness credibility and conflicting evidence are at issue, this court defers to the commissioner’s ability to weigh the evidence and make those determinations, and it does not weigh the evidence on review.  Whitehead, 529 N.W.2d at 352.  Accordingly, our narrow standard of review compels us to affirm the commissioner’s representative’s decision.



* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] “Event mode” parking allows patrons to park for a flat rate.

[2] Because this incident occurred prior to the revisions to the unemployment law statute, we will use the definition in the 2002 version of the statue as defined in Houston.