This opinion will be unpublished and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

A03-1263

 

Carrie E. Boyd,

Relator,

 

vs.

 

Corporate Commission of Mille Lacs Band

of Ojibwe Indians,

Respondent,

 

Commissioner of Employment and Economic Development,

Respondent.

 

Filed May 18, 2004

Affirmed

Harten, Judge

 

Department of Employment and Economic Development

Agency File No. 4296-03

 

Carrie Ellen Boyd, 2468 380th Street, Onamia, MN 56359 (pro se relator)

 

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

 

Stacey A. Thunder, 700 Grand Avenue, Onamia, MN 56359 (for respondent Corporate Commission of Mille Lacs Band of Ojibwe Indians)

 

            Considered and decided by Harten, Presiding Judge, Halbrooks, Judge, and Minge, Judge.

 

U N P U B L I S H E D   O P I N I O N

 

HARTEN, Judge

 

            On appeal by writ of certiorari, relator Carrie Boyd challenges the commissioner’s representative’s decision that she is disqualified from receiving unemployment benefits because she was discharged due to misconduct.  We affirm.

FACTS

The Corporate Commission of Mille Lacs Band of Ojibwe Indians employed relator Carrie Boyd as an administrative assistant at Grand Casino Mille Lacs.  The employer has an alcohol policy that prohibits employees from being under the influence of an intoxicant while on or off duty on company property.  The employer also has a code of conduct requiring employees to represent the company in a positive and ethical manner while on or off duty, to not engage in any conduct that reflects poorly on or is damaging to the company while on or off duty, and to conduct themselves in a professional and ethical fashion while on company property, in accordance with all company policies.  Employees can be terminated for violating these policies.  Boyd signed documents acknowledging that she received training on the employer’s policies and procedures, including the employer’s policy governing alcohol consumption by employees.

On the evening of 2 February 2003, Boyd and some coworkers went out for drinks at the Blue Goose Bar and Restaurant.  When the bar closed, Boyd and her coworkers decided to go swimming at Eddy’s Resort, which is an enterprise owned by the employer.  Eddy’s Resort had been rented to the Minnesota Vikings that weekend for a private party.   Although Boyd and her coworkers did not have an official invitation to attend the private party, they entered the resort and swam in the pool in their underwear.  Specifically, Boyd wore her bra, underpants, and t-shirt while swimming in the employer’s pool.

The employer learned that Boyd and her coworkers were at Eddy’s Resort during the Minnesota Vikings’ private party and investigated their conduct at the resort.  The employer terminated Boyd and her coworkers, because they violated company policies by (1) being under the influence of alcohol when they entered Eddy’s Resort; (2) conducting themselves in an unethical manner by entering a private party without invitation; and (3) exhibiting poor behavior, such as swimming in their underwear in the presence of private party guests, which negatively reflected upon the employer. 

Boyd applied for unemployment benefits.  A Department of Economic Security adjudicator determined that she was disqualified from receiving benefits because she was terminated due to misconduct for violating the employer’s policies.  An unemployment law judge (ULJ) affirmed this determination.  The commissioner’s representative affirmed the ULJ, concluding that Boyd disregarded the standards of behavior the employer had the right to expect and that her behavior evinced an intent to disregard the employer’s policies regarding appropriate behavior.  Boyd now appeals.

D E C I S I O N

An employee who is discharged from employment due to misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4 (2002).  Employment misconduct is defined 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 . . . ; or (2) negligent or indifferent conduct, on the job or off the job, that demonstrates a substantial lack of concern for the employment.”  Minn. Stat. § 269.095, subd. 6 (2002).  Failing to abide by an employer’s reasonable policies constitutes misconduct.  Schmidgall v. Filmtec Corp., 644 N.W.2d 801, 804 (Minn. 2002).

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).  “We 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, 644 N.W.2d at 804.  Whether an employee’s acts constitute misconduct is a question of law upon which reviewing courts remain free to exercise their independent judgment.  Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).

Boyd argues that the commissioner’s representative erred by concluding that she is disqualified from receiving unemployment benefits because she committed misconduct.  But Boyd admits she consumed alcohol prior to entering Eddy’s Resort, although she claimed that she was not “overly intoxicated.”  Being intoxicated to any degree is a direct violation of the employer’s alcohol policy, which states that off-duty employees are not to be on company property while under the influence of an intoxicant. 

In addition, Boyd further violated the employer’s policies by intentionally attending the private party at Eddy’s Resort without an official invitation and swimming in her underwear in the presence of resort guests.  Although Boyd asserts that the security manager at Eddy’s Resort gave her permission to enter the resort, the employer maintains that she never received such permission.  The commissioner’s representative specifically found that Boyd was not invited to enter the resort and that she “talked her way” into entering.  We must defer to this credibility determination.  See Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995) (when parties present conflicting evidence, this court must defer to the commissioner’s ability to weigh the evidence).  By intentionally entering the resort without the employer’s permission and swimming in her underwear, Boyd violated the employer’s reasonable policies, which require employees to represent the company in a positive and ethical manner while on or off duty, to refrain from any conduct that reflects poorly on or is damaging to the company while on or off duty, to conduct themselves in a professional and ethical fashion while on company property, and to refrain from being under the influence of alcohol on company property.

We conclude that the commissioner’s representative did not err by concluding that Boyd is disqualified from receiving unemployment benefits due to misconduct.

Affirmed.