This opinion will be unpublished and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

A04-85

 

 

Daniela Sanderson,

Relator,

 

vs.

 

Northern Lights Truck & Trailer,

Respondent,

 

Commissioner of Employment and Economic Development,

Respondent.

 

 

Filed July 27, 2004

Affirmed

Robert H. Schumacher, Judge

 

Department of Employment and Economic Development

File No. 12897 03

 

 

Daniela Sanderson, 4488 Mornes Road, Grand Rapids, MN 55744 (pro se relator)

 

Northern Lights Truck & Trailer, 1005 Highway 2 West, Post Office Box 275, Cohasset, MN 55721 (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 Stoneburner, Presiding Judge; Schumacher, Judge; and Klaphake, Judge.

U N P U B L I S H E D O P I N I O N

ROBERT H. SCHUMACHER, Judge

Relator Daniela Sanderson challenges the decision of respondent Commissioner of Employment and Economic Development that she was disqualified from receiving unemployment benefits. She argues that she was discharged for inadvertent conduct and the commissioner's representative erred in finding she was discharged for employment misconduct. We affirm.

FACTS

In December 2002 Sanderson began working for respondent Northern Lights Truck & Trailer as the company's office manager. Sanderson was in charge of the company finances, which frequently involved handling Northern Lights's money.

On July 8, 2003, Sanderson went to the post office with a company check in the amount of $222 to purchase six rolls of stamps. It is uncontested that Sanderson only received five rolls of stamps and was given $37.50 in change. Sanderson put the money in her purse and did not immediately return the money to Northern Lights. Sanderson testified that when she returned to work she was "sidetracked by an employee, [and] forgot the money in [her] purse."

On the morning of July 9, 2003, Guy Klegstad, president of Northern Lights, questioned Sanderson about the change she received from the post office. Sanderson testified that when Klegstad questioned her about the money, she remembered at that time she had it in her purse and handed Klegstad the money. Klegstad testified when he questioned Sanderson about the money, she responded, "You mean you would fire me over $37?" Klegstad further testified Sanderson responded, "I'll give . . . the money back to you then." She gave him $37, and he told her "you're 25 cents short." Klegstad testified Sanderson's response was, "I bought a pop with it yesterday." Klegstad discharged Sanderson the next morning.

Following her discharge on July 10, 2003, Sanderson filed for unemployment benefits. The unemployment law judge determined that Sanderson was discharged for employment misconduct, concluding: "The preponderance of the evidence demonstrates that the applicant engaged in either intentional or indifferent conduct that evinces a serious violation of the standard of behavior the employer reasonably has the right to expect." Sanderson appealed, and the commissioner's representative, applying the 2003 definition of employment misconduct, determined that Sanderson was discharged for employment misconduct.

D E C I S I O N

On appeal, this court reviews the decision of the commissioner's representative, not the decision of the unemployment law judge, even when the findings involve determination of witness credibility, and the commissioner's representative's decision is afforded "particular deference." Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995). The commissioner's representative's determination of whether an employee is disqualified for reasons of misconduct is a mixed question of fact and law. Schmidgall v. Filmtec Corp., 644 N.W.2d 801, 804 (Minn. 2002). "A Commissioner's representative's determination regarding the reason for an employee's separation is a factual determination." Embaby v. Dep't of Jobs & Training, 397 N.W.2d 609, 611 (Minn. App. 1986). "Whether a particular act constitutes disqualifying misconduct is a question of law, which this court reviews de novo." Schmidgall, 644 N.W.2d at 804.

The commissioner's representative's factual findings are reviewed in the light most favorable to the commissioner's representative's decision and will not be disturbed "as long as there is evidence that reasonably tends to sustain those findings." Id. This court must defer to the credibility determinations of the commissioner's representative. Vargas v. Northwest Area Foundation, 673 N.W.2d 200, 205 (Minn. App. 2004), review denied (Minn. Mar. 30, 2004).

Here, the commissioner's representative found Sanderson was discharged because she put the money she received from the post office in her purse and did not return it to Northern Lights until confronted on July 9. It is undisputed that this is the reason Northern Lights discharged Sanderson. Sanderson maintains that she made a mistake and thus did not commit employment misconduct. But the commissioner's representative also concluded that Sanderson's testimony was not credible, and we are bound by that determination. See id.

We next turn to the legal question of whether Sanderson's handling of Northern Lights's money was employment misconduct. At the time Sanderson was discharged, employment misconduct was 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.

 

Minn. Stat. 268.095, subd. 6(a) (2002).

As an office manager, Sanderson was entrusted with Northern Lights's finances and frequently handled its money. The commissioner's representative found Sanderson's failure to return Northern Lights' money was not an inadvertent mistake and her conduct was intentional or indifferent, both of which demonstrate a substantial lack of concern for her employment and disregard of the standards Northern Lights has a right to expect from its employees. Reviewing these findings in the light most favorable to the commissioner's representative's decision, we conclude that Sanderson committed employment misconduct as defined at the time of her discharge. Schmidgall, 644 N.W.2d at 804 (stating findings reviewed in most favorable light, but final determination of whether facts constitute employment misconduct is question of law reviewed de novo).

The commissioner's representative determined that Sanderson committed employment misconduct under the amended definition of that term effective August 1, 2003. See Minn. Stat. 645.02 (2002) (providing laws become effective August 1 of the year enacted unless otherwise specified). The commissioner's representative erred in applying the amended definition. See Bray v. Dogs & Cats Ltd., 679 N.W.2d 182, 186 (Minn. App. 2004) (stating employment misconduct must be determined under definition in effect at time of discharge). Because we conclude as a matter of law that Sanderson committed employment misconduct as that term was defined on July 10, 2003, the error was harmless.

Affirmed.