This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).





Vladamir Abramov,






Macy’s West, Inc. (OH),



Commissioner of Employment and Economic Development,



Filed May 25, 2004


Randall, Judge


Department of Employment and Economic Development

File No. 2333 03 


Richard I. Diamond, Jesse H. Kibort, Richard I. Diamond, P.A., 601 Carlson Parkway, Suite 1050, Minnetonka, MN 55305 (for relator)


Macy’s West Inc. (OH), UI UNIT box 27, P.O. Box 7888, San Francisco, CA 94120-7888 (pro se respondent)


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


            Considered and decided by, Randall, Presiding Judge, Harten, Judge, and Klaphake, Judge.


U N P U B L I S H E D   O P I N I O N



            Relator Vladimir Abramov challenges the decision of the commissioner’s representative that he was discharged for employment misconduct, disqualifying him from receiving unemployment benefits.  Because we find no support for the conclusion that relator intentionally misled his employer on his application form, we reverse.


            Relator began work with Macy’s West on June 2, 2003.  At the beginning of his employment, relator completed several forms, some of which contained questions about relator’s criminal history.  The application form asked, “[H]ave you ever been convicted of a crime (misdemeanor or felony) by a civilian or military court?”  Relator answered “no.”  Another form asked, “[H]ave you ever been convicted of a crime (excluding minor traffic violations)?”  Relator again answered “no,” and initialed and signed a form acknowledging that he understood the employer’s expectations and standards of conduct. 

            As part of routine procedure, Macy’s conducted a criminal background check on relator.  It was discovered that he had pleaded guilty to fifth-degree domestic assault (a misdemeanor) in April 1999.  Because relator had falsified information on his application and other paperwork, Macy’s terminated his employment.

            Relator applied for and was denied unemployment benefits.  He appealed that decision, and a hearing was held before an unemployment law judge.  At the hearing, relator testified (sometimes with the aid of an interpreter) that English is not his first language, and he did not understand that his domestic-assault conviction was a misdemeanor.  He introduced a release form from the criminal proceedings on which “misdemeanor” and “domestic assault” appeared separately, and both appeared to have been circled. 

            The unemployment law judge affirmed the denial of benefits, finding that relator was “sufficiently conversant with [English] that he understood the questions asked.”  Because relator did not fulfill the expectation that he answer the questions honestly, he committed employment misconduct.  The commissioner’s representative affirmed the denial, and this appeal follows.



            On appeal, the scope of this court’s review of factual questions in an unemployment benefits cases is limited to determining whether the record reasonably supports the commissioner’s representative’s decision.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  Findings of fact must be viewed in the light most favorable to the decision, and if there is evidence reasonably tending to sustain them they will not be disturbed.  Markel v. City of Circle Pines, 479 N.W.2d 382, 383-84 (Minn. 1992) (quotation omitted). 

An individual who is discharged for misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4(1) (2002).  The courts exercise independent judgment on issues of law.  Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).  The issue of whether an employee committed employment misconduct, and the commissioner’s representative’s determination of that issue, is a mixed question of fact and law.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  Whether the employee committed an act alleged to be employment misconduct is a fact question, but the interpretation of whether that act is employment misconduct is an issue of law.  Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997). 

Relator argues the commissioner’s representative erred by finding his actions constituted employment misconduct, disqualifying him from unemployment benefits.  We agree.  When determining whether an employee’s conduct constituted misconduct for the purposes of denying unemployment benefits, the court must find the conduct to “(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 v. Int’l Data Transfer Corp., 645 N.W.2d 144, 149 (Minn. 2002).[1]

Relator argues that his mistake when filling out his employment application was not done intentionally, knowingly, or negligently to mislead respondent or misrepresent the facts, but was a good faith error.  For the conduct to be intentional, it must be deliberate, Ress, 448 N.W.2d at 524, and not accidental, Am. Family Ins. Co. v. Walser, 628 N.W.2d 605, 611 (Minn. 2001).    Relator states he genuinely believed that he was answering the job application question honestly and in good faith.

We conclude that even with deference given to the commissioner’s representative’s decision, the record does not support a finding of employment misconduct.  Relator is from Russia and his use of the English language is limited.  The unemployment judge noted, “clearly [relator’s] first language is not English.”  During the hearing with the unemployment judge, relator was assisted by an interpreter.  Although relator was able to answer some questions on his own, he relied on the interpreter to help him converse.  It is logical that relator’s lack of fluency in the English language was a factor when he filled out the job application.    

Not only is relator’s use of the English language limited, the record shows that he does not understand the difference between a felony, misdemeanor, or “domestic assault.”  Indeed, some of relator’s confusion can be explained based upon the Release Order issued by the district court.  On that order, a domestic assault is distinguished as a separate option other than a felony, gross misdemeanor, or misdemeanor.  Relator testified at the hearing that because domestic assault was listed as a separate option, he believed that a domestic assault was neither a felony nor a misdemeanor.  For someone unfamiliar with the American court system, it is reasonable to believe relator credible when he stated he honestly did not know that his “fifth-degree domestic assault” was a misdemeanor.  Relator’s belief that his domestic assault was neither a felony nor misdemeanor is understandable based upon the fact that he is not fluent in English and because of the separate listing of domestic assault on the Release Order.  

Relator did not intentionally or deliberately mislead Macy’s.  Based on respondent’s knowledge of the American court system, the Release Order, and respondent’s inability to speak English, relator answered questions on the job application in good faith.  The record does not support the conclusion that relator intentionally misled Macy’s.  Repondent is entitled to unemployment compensation benefits.   


[1]  In its brief, respondent argues that this court should apply the new 2003 definition of employment misconduct.  It argues the new statute applies because the commissioner’s representative’s decision was after the effective date of the new statute.  However, this court has consistently applied the law in effect at the time of the employment misconduct.  See also Baron v. Lens Crafters, Inc. 514 N.W.2d 305, 307 (Minn. App. 1994) (holding that without a clear indication of the legislature’s intent, the statute should only be applied prospectively, and appolying the law in effect at the time of the employment misconduct).