This opinion will be unpublished and

may not be cited except as provided by

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






Debra K. Minnich,





Austin Packaging Company (Corp),



Commissioner of Employment

and Economic Development,



Filed November 23, 2004

Klaphake, Judge


Department of Employment and Economic Development

File No. 12856 03


Debra K. Minnich, P.O. Box 446, Grand Meadow, MN  55936-0446 (pro se relator)


Austin Packaging Company (Corp), 1118 North Main Street, Austin, MN  55912-3359 (respondent employer)


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


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

U N P U B L I S H E D   O P I N I O N


            Pro se relator Debra K. Minnich challenges a decision by a representative of respondent Commissioner of Employment and Economic Development disqualifying her from receiving unemployment benefits for committing employment misconduct.  Relator argues that her conduct in punching out her boyfriend’s time card did not show an intentional disregard for her employer’s interests because it was a single incident, she was given no warning and had no prior violations of any kind, and other employees commonly engaged in this practice.  Because the evidence reasonably supports the decision of the commissioner’s representative that relator’s conduct was intentional and in violation of her employer’s policy, we affirm.


            Our standard of review in unemployment insurance cases is very narrow and is limited to determining whether the evidence reasonably sustains the decision of the commissioner’s representative.  Markel v. City of Circle Pines, 479 N.W.2d 382, 383-84 (Minn. 1992); Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).

            An employee who is discharged for employment misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4(1) (2002).  For purposes of this case, employment misconduct is defined as “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[.]”  Minn. Stat. § 268.095, subd. 6(a)(1) (2002).

            To determine whether an employee’s actions constitute intentional employment misconduct, we apply a two-prong test.  Houston v. Int’l Data Transfer Corp., 645 N.W.2d 144, 149 (Minn. 2002).  Under the first prong, the conduct must be “deliberate” and “not accidental.”  Id.           Here, relator admitted at the hearing that she punched out her boyfriend’s time card.  Thus, the first prong of Houston is met.

            The second prong of Houston requires an analysis of the employee’s intent that is “separate and distinct” from the intentional conduct required in the first prong.  Houston, 645 N.W.2d at 150.  This second prong requires that the employee’s intentional conduct demonstrated an intent to ignore or pay no attention to her duties and obligations or to the standards of behavior the employer had a right to expect.  Id.

            Here, relator claimed that she did not intend to harm the employer and that she was not aware that she would be discharged if she punched her boyfriend’s time card in or out.  However, the evidence showed that relator had received an employee handbook in 1998 that warned her to “not scan anyone else in or out and do not allow anyone to do so for you.”  The evidence also showed that when a new time clock was installed in 2001, employees received training, which included a reiteration of the handbook policy.  Finally, in 2002, a notice was posted by the time clock prohibiting employees from punching other employees’ time cards; relator admitted that she had read this notice.

            Employers clearly have a legitimate right to expect that employees have worked the time claimed on their time cards.  Here, a written report from the third-shift supervisor indicated that he observed relator punch out two time cards on two occasions.  When the supervisor later examined the time cards, he discovered that relator had punched out her own and her boyfriend’s cards, even though her boyfriend had already left the premises.

            Relator further claims that this policy was basically ignored, that it was common practice for employees to punch each other’s cards in and out, and that this practice was well known and condoned by the employer.  Two witnesses called by the employer, however, disagreed.  These witnesses testified that they were not aware that employees were punching each other’s time cards, and both confirmed that such conduct was against policy.  Both stated that this type of conduct was akin to falsifying time records and was analogous to stealing from the employer.  We must defer to the ability of the commissioner’s representative to weigh conflicting evidence and make credibility determinations.  Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995).

            Even if relator had successfully shown that other employees engaged in this practice, violation of rules by other employees is not necessarily a defense to a finding of misconduct.  Dean v. Allied Aviation Fueling Co., 381 N.W.2d 80, 83-84 (Minn. App. 1986) (stating that violation of employer’s rules by other employees is not valid defense to claim of misconduct).  Nor is the employer’s failure to discharge every offending employee of any consequence to finding that misconduct was committed by the employee challenging a denial of unemployment benefits.  Sivertson v. Sims Sec., Inc., 390 N.W.2d 868, 871 (Minn. App. 1986) (stating that whether or not other employees violated same rules and were disciplined is not relevant to issue of whether relator’s violation of employer’s rules constituted misconduct), review denied (Minn. Aug. 20, 1986).

            Relator further argues that she did not commit misconduct because this was a single incident and she received no warning.  While a warning might have been appropriate in this case, relator admits that she had read the notice posted by the time clock prohibiting her conduct.  While only one violation might not have amounted to misconduct, the commissioner’s representative was entitled to infer that relator punched her boyfriend’s time card several times during a two-week period, given the identical times stated on the two time cards.

            Relator finally argues that the commissioner’s representative clearly erred in finding that she had “punched out two other employee’s time cards,” when the evidence showed that she had only punched out her own and her boyfriend’s time cards.  Any misstatement by the commissioner’s representative on this point appears harmless.  From the evidence, it still can be inferred that on several dates relator punched out another employee’s time card in violation of her employer’s stated policy.

            We therefore affirm the decision of the commissioner’s representative determining that relator committed disqualifying employment misconduct.