This opinion will be unpublished and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

A03-1406

 

William W. Jodeit,

Relator,

 

vs.

 

Auto-Medics Service Center,

Respondent,

 

Commissioner of Employment and Economic Development,

Respondent.

 

Filed May 11, 2004

Affirmed

Harten, Judge

 

Department of Employment and Economic Development

Agency File No. 7138-03

 

Peter B. Knapp, Jason Krause, certified student attorney, William Mitchell Law Clinic, 875 Summit Avenue, St. Paul, MN 55105 (for relator)

 

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

 

Auto-Medics Service Center, Inc., 3760 Flowerfield Road Northeast, Blaine, MN 55014 (respondent Auto-Medics Service Center, Inc.)

 

            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

            Relator challenges the commissioner’s representative’s determination disqualifying him from receiving unemployment benefits, arguing that his actions do not meet the standard for employee misconduct.  Because the commissioner’s representative’s conclusion is supported by the record, we affirm.

FACTS

            Relator William Jodeit worked as a night shift tow truck driver at Auto-Medics Service Center from 9 October 2000 to 7 April 2003.  Arthur Smith, president of Auto-Medics, testified that relator was discharged because he failed to cover a vehicle with a tarp in April 2003, refused to reimburse the company for his physical card, and abused the attendance policy.

            An Auto-Medics policy required employees who towed newer vehicles with open windows that could not be closed to place a tarp over the vehicle to prevent interior weather damage.  Relator testified that the decision to place tarps on a vehicle was left to the driver’s “discretion” because insurance companies would not pay the costs associated with tarps for badly damaged vehicles.  In April 2003, relator towed a new vehicle with open windows to the Auto-Medics lot and did not place a tarp on it.  Smith later discovered the vehicle with open windows and no tarp; rain had damaged the interior.

            Relator’s employment required the renewal of a Department of Transportation (DOT) physical card.  Relator testified that Auto-Medics told him it would pay for renewals after he worked there for one full year.  Smith testified that the company never paid for any employees to renew their physical cards.  In November 2002, relator charged the renewal of the physical card to Auto-Medics and refused to reimburse the cost.

Relator was entitled to six days of paid leave each year; one vacation day accrued every two months.  In February 2003, Auto-Medics gave relator a summary of the days that he had taken off.  It is undisputed that relator’s days off exceeded his accrued vacation days.  Relator testified that he understood that any days off beyond the accrued vacation would be made up or deducted from his paycheck, but that he was unaware that excessive time off would result in his discharge.

            Following his discharge, relator applied for unemployment benefits, and the Department of Employment and Economic Development determined that relator was not disqualified from receiving benefits.  Auto-Medics appealed, and an unemployment law judge affirmed, finding that relator had been discharged for reasons other than employment misconduct.  Auto-Medics appealed again; the commissioner’s representative reversed, finding that relator was discharged for employment misconduct and thereby was disqualified from receiving benefits.  Relator challenges that determination.

D E C I S I O N

            On appeal, a reviewing court must examine the decision of the commissioner’s representative rather than that of the unemployment law judge.  Kalberg v. Park & Recreation Bd., 563 N.W.2d 275, 276 (Minn. App. 1997).  Decisions of the commissioner’s representative are afforded “particular deference.”  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  An employee who is discharged for misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4(1) (2002).  The 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 the commissioner’s representative’s determination of misconduct 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.

Under Minn. Stat. § 268.095, subd. 6(a) (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 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.

The commissioner’s representative found that relator’s conduct “evinced a substantial lack of concern for his employment.”[1]

            Relator claims that his failure to place a tarp on a vehicle with open windows was not misconduct.  He testified that the car battery was dead, he was unable to close the windows, the vehicle was part of a motor club that refused to pay the costs associated with tarps, and the weather was dry.  But Smith testified that he was able to close the vehicle’s windows the following morning, it had rained, and relator had been warned to place tarps on vehicles with open windows after he left windows uncovered on six earlier occasions.  Where the record contains conflicting evidence, appellate courts defer to the commissioner’s representative’s credibility determinations.  See, e.g., Jenson v. Dep’t of Econ. Sec., 617 N.W.2d 627, 631 (Minn. App. 2000), review denied (Minn. 20 Dec. 2000).  The record supports the commissioner’s representative’s finding that relator was negligent and indifferent in leaving the vehicle uncovered.

            Having concluded that relator’s failure to place a tarp was misconduct, we need not address the other reasons for his discharge.

            Affirmed.



[1] Although the commissioner’s representative applied the definition for misconduct found in Minn. Stat. § 268.095, subd. 6(a) (Supp. 2003), the parties agree that the representative’s conclusion falls within the definition of “negligent and indifferent conduct” under Minn. Stat. § 268.095, subd. 6(a)(2) (2002).