This opinion will be unpublished and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

A03-662

 

 

Lisa J. Hieronimus,

Relator,

 

vs.

 

Johnson & Johnson, Ptnr.,

Respondent,

 

Commissioner of Employment and

Economic Development,

Respondent.

 

 

Filed  February 3, 2004

Affirmed

Toussaint, Chief Judge

 

Department of Employment and

Economic Development

File No. 14122-02

 

 

Lisa J. Hieronimus, P.O. Box 155, Adrian, MN 56110-1114 (pro se relator)

 

Johnson & Johnson Ptnr., P.O. Box 183, Fulda, MN 56131-0183 (respondent)

 

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

 

 

            Considered and decided by Schumacher, 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

 

TOUSSAINT, Chief Judge

 

            Relator Lisa J. Hieronimus challenges the decision by the commissioner’s representative that she was discharged for employment misconduct because she stole money from her employer, claimed unearned commissions, and falsified her time sheets and was therefore disqualified from receiving unemployment benefits.  Because evidence in the record reasonably supports the findings of the commissioner’s representative, and the findings support a conclusion that relator was discharged for employee misconduct, we affirm.

D E C I S I O N

 

Decisions of the commissioner’s representative are accorded particular deference.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  Whether an employee has engaged in conduct that disqualifies him from unemployment benefits is a mixed question of fact and law.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  A determination of the commissioner’s representative regarding the reasons for an employee’s separation is a factual determination that is to be reviewed in the light most favorable to the decision and may not be disturbed if there is evidence reasonably tending to sustain the finding.  See Markel v. City of Circle Pines, 479 N.W.2d 382, 383-34 (Minn. 1992).  The determination of whether those acts are misconduct is a question of law, on which this court is free to exercise independent judgment.  Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).

The Minnesota Supreme Court has articulated a two-prong test to determine whether an employee’s actions constitute employment misconduct within the meaning of Minn. Stat. § 268.095, subd. 6(a)(1) (2002).  Houston v. Int’l Data Transfer Corp., 645 N.W.2d 144, 149 (Minn. 2002).  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.”  Id.  The first prong requires that the intent to engage in the conduct in question be “deliberate” and “not accidental.”  Id.  The second prong requires that the employee’s intent be “separate and distinct from the intent to engage in the conduct in question.”  Id. at 150.  Therefore, to meet both prongs of the test, the employee must not only have engaged in intentional conduct, but must also have intended to disregard the employer’s standards.  Id.

A.         Unearned Commissions

            First, relator challenges the commissioner’s finding that she took unearned commissions, arguing that there is no evidence in the record to support this finding.  The evidence in the record, however, reasonably supports the finding.  Witness Kathy Burzlaff testified that relator claimed unearned commissions in June 2002 that belonged to herself and two other sales people, one of whom corroborated Burzlaff’s testimony.  Burzlaff testified that (1) the number of ads relator claimed to have sold was too high in relation to the ads sold by all sales people and compared to all ads in the issue; and (2) when asked for a list of all the ads she had sold, relator failed to provide the list.  The record also shows that while relator was entitled to only $575.53 in commissions in June, she claimed $756.71, and in July relator claimed $295.21 in commissions, even though she was entitled to only $161.24.

            Relator testified that she worked on all the ads for which she claimed commissions and that she provided Burzlaff with a list of the ads she sold.  However, when parties present conflicting testimony, we must defer to the commissioner’s ability to weigh the evidence.  Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995).  The commissioner’s representative found the testimony given by Burzlaff and co-workers more credible than relator’s testimony, and their testimony reasonably supports the representative’s finding that relator claimed unearned commissions. 

The record also shows that relator’s act of claiming unearned commissions was employee misconduct as a matter of law.  Burzlaff testified that upon hiring, relator was specifically informed of accounts belonging to others.  Gerald Johnson, relator’s employer, also testified that when he noticed relator was claiming unearned commissions, he conducted a meeting to clarify who could take commissions for each account. According to Johnson and Burzlaff, relator was present at that meeting.  While relator denies that this meeting took place, the commissioner’s representative determined the other witnesses were more credible, relator knew her employer’s expectations, and she continued to claim unearned commissions.  This demonstrates relator’s intent to claim unearned commissions and intent to disregard her employer’s policies.  

B.                 Falsified Time Sheets

            Next, relator argues that the record does not support the commissioner’s representative’s finding that she falsified her time sheets.  Burzlaff, who was responsible for payroll, testified that relator’s time sheets indicated that she was working when she was actually absent from the office.  On at least six days during June and July, Burzlaff adjusted relator’s time sheet to reflect the correct hours worked.  Relator rejected Burzlaff’s explanation for the adjustments and testified that her absences were typical of a sales job.  Nevertheless, relator provided no evidence that she worked during the hours contested.  Therefore, the record reasonably supports the representative’s finding that relator falsified her time sheets and because relator continued to falsify her time sheets in July after her time sheets were adjusted in June, the evidence demonstrates that relator intended to falsify her time sheets and to disregard her employer’s policies. 

C.        Stolen Money

            Finally, relator argues that there is no evidence in the record to support the commissioner’s representative’s finding that she stole money from her employer’s offices.  Relator claims that other employees could have stolen the money and that she was the least likely culprit because she was rarely in the Heron Lake office, and she did not have a key to that office.  However, Carol Schreiber, editor of the Tri County News, who officed at the Heron Lake office, testified that relator was the only one there on several occasions on which money was stolen.  Both Schreiber and relator’s employer testified that relator would sometimes stop by the Heron Lake office on her way to other locations and that she had a key to that office on those days.  Other employees also placed relator alone in the Heron Lake office doing paper work when they returned from lunch.  We conclude that circumstantial evidence supports the commissioner’s representative’s decision that relator stole money from her employer.

            Furthermore, because the commissioner’s representative did not believe relator’s claim that she did not take the money, and relator provided no reasons for why she took the money, the commissioner’s representative did not err in concluding that relator’s act of stealing was employee misconduct. 

Affirmed.