This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
World Around Us Child Development Center, Inc.,
Commissioner of Employment and Economic Development,
Filed March 22, 2005
Department of Employment and Economic Development
Agency File No. 3896-04
Deanna Giller, 3683 White Bear Avenue North, White Bear Lake, MN 55110 (pro se relator)
Lee B. Nelson, Linda A. Holmes, Department of Employment and Economic Development, E200 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101 (for respondent Commissioner of Employment and Economic Development)
World Around Us Child Development Center, Inc., 2290 11th Avenue East, St. Paul, MN 55109 (respondent)
Considered and decided by Chief Judge Toussaint, Presiding Judge; Shumaker, Judge; and Dietzen, Judge.
Relator challenges the decision by the commissioner’s representative that she was discharged from her employment for misconduct. Because the evidence reasonably tends to sustain the commissioner’s representative’s decision that relator was discharged for misconduct, we affirm.
In 2001, relator Deanna Giller began working as a teacher with respondent World Around Us Child Development Center, Inc. (WAU), a daycare facility. WAU is subject to a state licensing regulation that mandates a classroom ratio of one teacher to every ten students. Although an aide may count as a teacher for purposes of this ratio, volunteers may not. To maintain the proper teacher to student ratio of 1:10, respondent WAU has a written policy requiring employees to remain on duty until another staff member relieves them, even if the replacement is late. Relator acknowledged this policy when she signed a receipt of the employee handbook.
Over the course of her employment, relator received several warnings for violating WAU’s policies. For example, she received a warning on January 13, 2004, for violating policies regarding curriculum and cleaning. Prior to that, she received three other warnings for failing to follow various WAU rules and policies.
On January 27, 2004, relator was scheduled to work until 3:00 p.m., but she departed prior to the arrival of her replacement. After she punched out, relator delivered her ten students to another teacher, Rita Linn, who also had ten students. Although a volunteer was in the room with Linn when relator left her students, relator knew that, for licensing purposes, the volunteer did not count toward the teacher/student ratio. Based on these actions, relator’s employment was terminated on January 27, 2004.
Thereafter, relator applied for unemployment benefits. An unemployment law judge (ULJ) found that relator was discharged from her employment because of misconduct and thereby disqualified from receiving unemployment benefits. Relator appealed the ULJ’s decision to a representative of the Commissioner of Employment and Economic Development, and the ULJ’s decision was affirmed. This certiorari appeal follows.
An employee discharged for employment misconduct is disqualified from receiving unemployment benefits. Minn. Stat. § 268.095, subd. 4(1) (Supp. 2003). Whether an employee has committed employment misconduct is a mixed question of fact and law. Colburn v. Pine Portage Madden Bros., Inc., 346 N.W.2d 159, 161 (Minn. 1984). The commissioner’s representative determines the fact question of whether an employee committed the alleged acts of misconduct, Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997), and those findings will be afforded “particular deference.” Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995). “We 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). This court will not be bound by the commissioner’s representative’s conclusions however, if they do not have reasonable support. Marty v. Digital Equip. Corp., 345 N.W.2d 773, 775 (Minn. 1984).
Here, our review is limited to whether the record supports the commissioner’s representative’s determination that relator was discharged for employment misconduct. “An applicant who was discharged from employment by an employer shall not be [disqualified from] any unemployment benefits except when: (1) the applicant was discharged because of employment misconduct[.]” Minn. Stat. § 268.095, subd. 4 (Supp. 2003). Employment misconduct includes “any intentional, negligent, or indifferent conduct, on the job or off the job (1) that evinces a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee, or (2) that demonstrates a substantial lack of concern for the employment.” Id., subd. 6 (Supp. 2003). To be intentional, the conduct must be deliberate and not accidental. Houston v. Int’l Data Transfer Corp., 645 N.W.2d 144, 149 (Minn. 2002). There must also be a showing that the employee intended to violate the standards of behavior the employer has a right to expect. Id. at 150. “A single incident can constitute misconduct when an employee deliberately chooses a course of conduct that is adverse to the employer.” Schmidgall, 644 N.W.2d at 806.
The commissioner’s representative found that relator violated two basic rules that WAU had communicated to her. First, relator failed to stay until her relief arrived. Relator counters that the employee handbook does not clearly require that she remain until relief arrives, and, in any event, that she worked until the end of her shift. But relator’s supervisor testified, and another teacher confirmed, that WAU’s policy requires that teachers remain until the next teacher arrives to take over, even if they have to stay over a few minutes. On this testimony, the commissioner’s representative credited the testimony of relator’s supervisor and another teacher over that of relator. It is undisputed that relator did not wait for the next teacher to arrive and did not contact her supervisor to ask what to do.
Second, the commissioner’s representative found that relator’s action violated the policy regarding teacher/student ratio, which was contrary to WAU’s interests. Relator contends that the volunteer qualified as an aide in computing the teacher/student ratio and that the policy was not uniformly enforced by WAU. Relator’s supervisor testified that she told the entire staff, including relator, that the volunteer in question did not qualify as an aide who would count for purposes of the ratio. And this testimony was confirmed through the testimony of Dawn Ratajczak, a WAU teacher.
on the evidence in the record, the commissioner’s representative concluded that
relator’s actions constituted employment misconduct because WAU had a right to
expect that relator knew it was a violation of state regulations to leave
with a single teacher. See Minn. Stat. § 268.095, subd. 6 (stating employment misconduct includes “serious violation[s] of the standards of behavior the employer has the right to reasonably expect of the employee”). Because the evidence reasonably tends to sustain the commissioner’s representative’s decision that relator was discharged for misconduct, we affirm.
 The revisor of statutes inadvertently substituted the term “ineligible for” for the term “disqualified from” in Minn. Stat. § 268.095, subds. 1, 4, 7, 8(a) (Supp. 2003). See Minn. Stat. § 268.095, subds. 1, 4, 7, 8(a) (2002) (using term “disqualified from”); 2003 Minn. Laws 1st Spec. Sess. ch. 3, art. 2, § 11 (making other changes to Minn. Stat. § 268.095, subd. 1, but retaining term “disqualified from”); 2003 Minn. Laws 1st Spec. Sess. ch. 3, art. 2, § 20(j), (k) (directing revisor to change the term “disqualified from” to “ineligible for” only in Minn. Stat. § 268.095, subd. 12, and then to renumber to Minn. Stat. § 268.085, subd. 13b).