This opinion will be unpublished and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

A03-933

 

Gregory A. Kvidera,
Relator,

vs.

Rotation Engineering & Manufacturing Co.,
Respondent,
Commissioner of Employment and Economic Development,
Respondent.

 

Filed March 30, 2004

Affirmed

Stoneburner, Judge

 

Department of Employment and Economic Development

File No. 17778 02

 

Chad McKenney, Brad Hendrikson, Donohue, McKenney, Thacher & Bergquist, Ltd., 810 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN 55402 (for realtor)

 

John Thompson, Rider, Bennet, Egan & Arundel, Suite 2000, 333 South Seventh Street, Minneapolis, MN 55402 (for respondent employer)

 

Lee B. Nelson, Katrina I. Smith, Department of Employment and Economic Development, 390 North Robert Street, St. Paul, MN 55101 (for respondent Commissioner)

 

            Considered and decided by Stoneburner, 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

 

STONEBURNER, Judge

 

            Relator Gregory A. Kvidera challenges the decision of the commissioner’s representative that he was discharged for employment misconduct and therefore disqualified from receiving unemployment benefits.  Because the evidence in the record reasonably sustains the findings of the commissioner’s representative, and the conclusion based on those facts is not contrary to the statutory mandate, we affirm.

FACTS

            Relator was the president and chief executive officer of Rotation Engineering Manufacturing Co. (Rotation).  Rotation is owned by James Lorence, whose daughter, Debbie Cooper, became president of the company two weeks after relator was terminated from that position.  Cooper was the company’s comptroller while relator was CEO.  Cooper and relator had some disagreements.  Cooper initiated an investigation of relator, including his submission of expense receipts.  She discovered that two receipts, totaling approximately $140 had been submitted in duplicate.  Relator, whose salary was $95,000 per year, and who had voluntarily deferred taking a $16,000+ bonus he was entitled to because of concerns over the company’s cash flow, testified that submission of the duplicate receipts was a mistake and not intentional.

            Cooper also questioned relator’s expense reimbursement for a new laptop computer and related computer equipment.  One of the duplicate receipts was for $106 for “computer memory purchase.”  When Cooper asked relator’s son, who worked in Rotation’s IT department, to return the memory card allegedly purchased because it was for an old laptop that was being sold for Rotation by relator’s son, he replied that a memory card could be purchased for $12.  Cooper became concerned that relator’s old laptop computer was listed for sale on e-Bay and advertised as in “great working condition,” after relator had received funds for a replacement computer based on his claim that the hard drive on the old laptop had “crashed.”  Relator returned the old computer to Rotation when requested to do so.  The old computer had a smashed screen and damaged keyboard when it was returned, but the hard drive was not damaged.

            Relator was terminated by Lorence without notice and without explanation.  When he asked for an explanation, he received a letter from an attorney stating that “[t]he company had a number of concerns, leading it to lose confidence in your ability to perform your duties successfully . . . [including] a number of irregularities and deficiencies concerning the company’s computer equipment as well as lack of proper document on expense reimbursement submissions.” 

            Relator was initially granted unemployment benefits and Rotation appealed.    At the hearing, Cooper testified about the duplicate expense reimbursement requests and the laptop incident.  Lorence testified that he had requested that relator, on company time, help one of Lorence’s friends (McCall) locate, interview, and pick out someone to run McCall’s business.  Lorence testified that he told McCall, in front of relator, that there would be no charge for this assistance.  Lorence testified that he later learned from McCall that relator had told McCall that $5,000 was his usual fee for the services rendered, and accepted payment from McCall in that amount made out to relator personally, without notifying Lorence.  Lorence terminated relator’s employment on the first workday after he learned of the payment from McCall, and testified that the payment played a role in the termination “[b]ecause, one, it isn’t ethical. Two, he embarrassed me greatly in front of an old friend.  Three, if there was any payment, because it was done on Rotation time, it should have come into Rotation, which I would have refused because I had already told him that it was no charge for this.”

            The unemployment law judge, without mentioning the payment from McCall, found that relator was discharged for misconduct, concluding that relator’s explanation for the duplicate expense reimbursement submission was not credible and that relator had purposely damaged the laptop computer screen to justify his son’s attempt to sell it on the Internet and his own attempts to get a replacement computer.

            Relator appealed.  The commissioner’s representative affirmed. Without mentioning the concern about the laptop, the commissioner’s representative concluded that relator committed misconduct by knowingly seeking expense reimbursement to which he was not entitled and accepting payment for work that was done, at least in part, during business hours, without disclosing the payment to Lorence, who had specifically stated that relator was not to accept payment for such work.  This appeal by writ of certiorari followed.    

 

D E C I S I O N

 

            On appeal, the decisions of the commissioner’s representative are accorded “particular deference.”  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  Therefore, “[w]e review the commissioner’s factual findings in the light most favorable to the commissioner’s decision and 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).   The commissioner’s “conclusions are not binding upon this court if they do not have reasonable support in the findings.”  Marty v. Digital Equip. Corp., 345 N.W.2d 773, 775 (Minn. 1984). 

            Here, the commissioner’s representative determined that relator was discharged from employment for misconduct.  The commissioner’s determination that an employee is disqualified for reasons of misconduct is a mixed question of fact and law.  Colburn v. Pine Portage Madden Bros., 346 N.W.2d 159, 161 (Minn. 1984).  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 the statutory mandate.”  Id. 

            Pursuant to Minn. Stat. § 268.095, subd. 6(a) and (b) (2002), 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; or

(2)       negligent or indifferent conduct, on the job or off the job, that demonstrates a substantial lack of concern for the employment.

 

Inefficiency, inadvertence, simple unsatisfactory conduct . . . are not employment misconduct.

 

            Relator does not dispute that he submitted duplicate receipts for expense reimbursement.  He claims, however, that the submission of those receipts was mere inadvertence and does not rise to the level of employment misconduct.  He argues that given his salary level and the fact that he voluntarily deferred receiving a large bonus out of concern for the company’s cash flow problems, the commissioner’s representative should have found credible his explanation for the duplicate expense submissions, involving only a small amount of money.  But 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.  Whitehead v. Moonlight Nursing Care, Inc.  529 N.W.2d 350, 352 (Minn. App. 1995).  Therefore, viewing the evidence in the light most favorable to the decision of the commissioner’s representative, and deferring to the commissioner’s representative’s credibility determinations, we conclude that the finding that relator intentionally submitted duplicate receipts is reasonably supported by the evidence in the record.

            Relator also argues that the evidence does not support the determination of the commissioner’s representative that relator disregarded Rotation’s reasonable expectations in accepting payment from McCall.  And relator asserts that Rotation was unaware of the payment until after he was fired, so the payment did not play a part in his termination.  But according to the testimony of Lorence and McCall, McCall informed Lorence of the $5,000 payment during the weekend before Lorence fired relator, and Lorence testified that the payment played a part in the determination to fire relator.  Again, we must defer to the commissioner’s representative’s credibility determination.

            The record supports the finding that relator knew that Lorence did not want McCall to pay for the assistance provided by relator and the conclusion that relator intentionally disregarded those reasonable expectations by accepting the payment.

            Relator argues that his discharge from employment was actually the result of the fact that Cooper did not like him.  But the commissioner’s representative did not find relator’s argument credible.  In light of the limited standard of review, and because the record supports the commissioner’s representative’s decision that relator’s falsified expense reports and undisclosed acceptance of payment from McCall against Lorence’s wishes constitute employment misconduct, disqualifying relator from receiving unemployment benefits, we affirm.

            Affirmed. 

 



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