This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).








Rachel Marie Kimber,





Lohse Transfer, Inc.,



Commissioner of Employment and Economic Development,



Filed July 27, 2004


Randall, Judge


Department of Employment and Economic Development

File No. 10150 03



Rachel Marie Kimber, 1314 Griffing Park Road, Buffalo, MN  55313-1955 (pro se relator)


Lohse Transfer, P.O. Box 97, Annandale, MN  55302-0097 (respondent)


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


            Considered and decided by Kalitowski, Presiding Judge; Randall, Judge; and Wright, Judge.

U N P U B L I S H E D   O P I N I O N


            In this certiorari appeal, relator Rachel Marie Kimber challenges the decision by the commissioner’s representative that she was disqualified from receiving unemployment benefits because she had been discharged for misconduct.  She argues that (1) because the employer failed to respond to the initial notice of her application for benefits, it is precluded from further appeal; and (2) the findings that she engaged in misconduct are not correct.  We affirm.


            Kimber worked as a delivery driver for respondent Lohse Transfer from March 2002 through April 18, 2003, when she was fired.  Timothy Lohse, the owner, testified that in June 2002, he received a letter from a customer complaining that Kimber had gotten into a disagreement with him and had sworn at him, and informing Lohse that he would not accept her as a driver ever again.  Kimber was placed on probation for 60 days as a result of this incident.  Kimber testified that she did not use bad language to this customer and denied being told that she had been placed on probation.

            In the next incident, which occurred in September 2002, Kimber had another disagreement during a delivery and misstated Lohse’s policy regarding moving the freight on the truck.  The customer called to complain.  Again, Kimber testified that she had not gotten into an argument with this customer and asserted that she had cooperated.

            Lohse then received two complaints reporting that Kimber had been tailgating while driving the company truck, including one from an employee of one of Lohse’s customers.  Kimber denied tailgating.

            Finally, on April 18, 2003, Kimber had arrived early for a pick up and was “verbal” with the customer and swore at shipping personnel.  The customer called Lohse and said that if Kimber ever came back, they would hire another company.  Kimber denied making these remarks to the customer.

            Lohse testified that when he told Kimber of this last complaint, she denied any problems and told him that if he was not happy with how she did her job, he would have to fire her.  He did so.  Lohse testified that Kimber then became verbally abusive, swearing and throwing things out of her truck.  Kimber denied swearing at Lohse when she was fired.

            Kimber applied for unemployment benefits and was initially deemed qualified.  The employer appealed, and, after a hearing, the ULJ also determined that she was qualified.  The employer then appealed to the commissioner’s representative, who reversed, determining that Kimber had been discharged for employment misconduct and was disqualified from receiving benefits.  This certiorari appeal followed.



            Kimber first contends that the department made an initial decision in her favor because the employer did not timely respond to notice of her initial application and that it is unfair to allow the employer to then appeal the decisions in her favor.

            A discharged employee must first apply for unemployment benefits from the department, giving, in relevant part, the name of the employer and the reason that the applicant is no longer working for that employer.  Minn. Stat. § 268.101, subd. 1(a) (2002).  If the reason is other than a layoff, an issue of disqualification arises.  Id.  The department then notifies the employer of the application to “provide the employer an opportunity to raise, in a manner prescribed by the commissioner, any issue of disqualification or any issue of eligibility.”  Id., subd. 1(b).  Regardless of whether the employer raises any issue of disqualification, the commissioner shall determine the issue.  Id., subd. 2(a).  This determination is final unless an appeal is filed by the applicant or employer within 30 days.  Id., subd. 2(e).

            Therefore, the department must decide the issue of disqualification on the merits, rather than as a default based on the employer’s failure to respond.  Id., subd. 2(a).  Further, under the statute, the department’s decision on the application is the final decision, subject to appeal.  Id., subd. 2(e).  There is no indication that the employer’s failure to object to the employee’s initial application precludes the right to further appeal.  Instead, even if a notified employer does not raise the issue of disqualification, the commissioner must decide any issue of disqualification based on the information received from the applicant.  Id., subd. 2(a).  Therefore, even if the employer did not respond to the initial notice of Kimber’s application for benefits, it may bring a timely appeal from the final decision by the department.

            Kimber also asserts that allowing review by the commissioner’s representative gave the employer time to gather more inaccurate evidence of facts regarding her firing.  The commissioner, however, conducts a de novo review of the decision by the ULJ and does not take new evidence.  Minn. Stat. § 268.105, subd. 2(d) (2002).


            An appellate court will “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).  “Whether a particular act constitutes disqualifying misconduct is a question of law,” which an appellate court will review de novo.  Id.  “Whether an employee engaged in conduct that disqualifies the employee from unemployment benefits is a mixed question of fact and law.”  Id.  An appellate court reviews and defers to the decision of the commissioner rather than the unemployment law judge.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).

            An employee who is discharged from employment for misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4 (2002).  Employment misconduct is defined to include “any intentional conduct . . . 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.”  Id., subd. 6(a)(1) (2002).[1]  Houston v. Int’l Data Transfer Corp., 645 N.W.2d 144, 149 (Minn. 2002).

            Kimber challenges the findings by the commissioner’s representative.  As discussed above, Kimber and the employer presented different versions of events.  The commissioner’s representative credited the employer’s version of events, finding that although Kimber was repeatedly told that her poor attitude and disrespectful behavior with customers were unacceptable, she again engaged in this conduct with a customer on April 18, 2003.  When the employer brought the complaint to Kimber’s attention, she challenged him to fire her.  The representative noted that although Kimber denied acting inappropriately, she did not give a sufficient explanation for the numerous complaints the about her behavior that her employer received from both its customers and members of the public.

            The record clearly supports the commissioner’s findings that Kimber engaged in misconduct.  The decision of the commissioner’s representative is affirmed.



[1]  The legislature amended this definition of misconduct effective August 1, 2003.  2003 Minn. Laws 1st Spec. Sess. ch. 3, art. 2, § 13; see also Minn. Stat. § 645.02 (2002) (providing that unless otherwise specified, laws are effective August 1 of the year enacted).  Because relator was discharged on April 18, 2003, the 2002 version of the law applies.  Bray v. Dogs & Cats Ltd., 679 N.W.2d 182, 186 (Minn. App. 2004).