This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Valerie K. Vaughn,
Cynthia Ruth Low,
Commissioner of Employment and Economic Development,
Filed May 17, 2005
Gordon W. Shumaker, Judge
Department of Employment and Economic Development
File No. 20530 03
Lee B. Nelson, Linda A. Holmes, Minnesota Department of Employment and Economic Development, First National Bank Building, 332 Minnesota Street, Suite E200, St. Paul, MN 55101 (for respondent commissioner)
Considered and decided by Shumaker, Presiding Judge; Toussaint, Chief Judge; and Crippen, Judge.*
GORDON W. SHUMAKER, Judge
Relator challenges the commissioner’s representative’s finding that she discharged respondent for reasons other than employee misconduct. Relator argues that the record establishes she discharged respondent for tardiness, dishonesty, payroll discrepancies, and insubordination. Because respondent’s conduct in relator’s personal matters fails to satisfy the statutory definition of employment misconduct, we affirm.
On February 25, 2002, relator Cynthia Low, owner and president of a financial planning business, hired respondent Valerie Vaughn as an administrative assistant. During Vaughn’s employment, Low was involved in a custody dispute for her grandson with the boy’s mother, Erin Holst. When Low filed for custody of her grandson, she asked Vaughn to serve Holst court documents outside of business hours. When Holst received service of the documents at Vaughn’s home, she became upset and threatened to run away with her son. Vaughn warned Holst not to do “anything rash” because “[Low] was being careful to record any threats against her for use in court.” Two days later, on the day of the custody hearing, Holst entered Low’s office demanding Low’s records on her misbehavior.
After the incident with Holst at the office, Low obtained a court order requiring Holst to provide 24 hours notice before arriving at the office. Later, as a result of Vaughn’s perceived inability to keep Holst away from the office, Low asked another employee to take away Vaughn’s office keys.
Low repeatedly asked Vaughn to draft an affidavit describing Holst’s misbehavior. Vaughn refused. On October 29, 2003, Low asked Vaughn about a phone call from Holst noted in the company phone log. Apparently unsatisfied with her explanation, Low discharged Vaughn ten to fifteen minutes later.
Vaughn established a benefits account with the Minnesota Department of Employment and Economic Development. A department adjudicator initially determined Vaughn was entitled to receive unemployment benefits. Low appealed. After hearing testimony from Vaughn, Low, and two of Low’s employees, Ruth Spitzer and Donna DeGolier, an unemployment law judge determined Vaughn was discharged for employment misconduct and was disqualified from receiving benefits. Vaughn appealed.
On May 11, 2004, Low sent a letter to the commissioner’s representative restating her position on appeal and introducing new facts. Basing his decision solely on the evidence before the unemployment law judge, the commissioner’s representative reversed the decision and concluded that Vaughn was entitled to receive unemployment benefits. Low filed a writ of certiorari to this court.
D E C I S I O N
1. Vaughn’s discharge
On certiorari appeal, this
court reviews the decision of the commissioner’s representative, not the
decision of the unemployment law judge, even when the findings involve a
determination of witness credibility. Tuff v. Knitcraft Corp., 526 N.W.2d 50,
“A [c]ommissioner’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 (
[t]his discharge came about in large part due to a conflict which had nothing to do with Vaughn’s employment. The employer appears to have dangerously intermingled personal and business matters. . . . Low may have had a good personal reason to discharge Vaughn, but Vaughn was not discharged due to employment misconduct.
After reviewing the record, we hold that sufficient evidence supports the commissioner’s representative’s findings. Low discharged Vaughn ten to fifteen minutes after receiving an unsatisfactory explanation about Vaughn’s phone conversation with Holst. Low felt that Vaughn committed a “serious breach of confidential information” when Vaughn warned Holst not to do “anything rash” because “[Low] was being careful to record any threats against her for use in court.” Low also repeatedly accused Vaughn of encouraging conversation with Holst and testified that Vaughn “allowed” Holst to come to the office.
Spitzer testified that Low asked her to take Vaughn’s office keys because “[Vaughn] didn’t have the intestinal fortitude to stand up to [Holst].” Vaughn testified that Low expressed concern that she “didn’t have the strength of will to refuse [Holst] should she ask me for my keys.” Low asked Vaughn to draft an affidavit describing Holst’s misbehavior. After Vaughn refused, Vaughn testified that Low “brought it up in every staff meeting as proof that I wasn’t loyal to her.” The record sufficiently supports the commissioner’s representative’s finding that Vaughn’s “discharge came about in large part due to a conflict which had nothing to do with Vaughn’s employment.”
Low challenges the commissioner’s representative’s finding that she discharged Vaughn for reasons other than employee misconduct. Low does not challenge the validity of the commissioner’s representative’s findings; she instead argues that the record established that she discharged Vaughn for tardiness, dishonesty, payroll discrepancies, and insubordination. Even if the record does show that Vaughn was consistently tardy, dishonest, or insubordinate, the commissioner’s representative did not find Vaughn was discharged because of any of these reasons. In light of the court’s limited review, Low inappropriately asks this court to make factual determinations. See Schmidgall, 644 N.W.2d at 804 (factual determinations will not be disturbed unless unsupported by the record); Embaby, 397 N.W.2d at 611 (reason for separation is factual determination).
2. Employment Misconduct
Although the court defers to
the commissioner’s representative’s findings of fact, it makes an independent
determination of whether the alleged conduct satisfies the statutory definition
of employment misconduct. Ress v.
Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (
A person discharged for employment misconduct is disqualified from receiving unemployment benefits. Minn. Stat. § 268.095, subd. 4(1) (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.
Minn. Stat. § 268.095, subd. 6(a) (Supp. 2003). Employment misconduct, however, does not encompass:
[i]nefficiency, inadvertence, simple unsatisfactory conduct, a single incident that does not have a significant adverse impact on the employer, conduct an average reasonable employee would have engaged in under the circumstances, poor performance because of inability or incapacity, good faith errors in judgment if judgment was required, or absence because of illness or injury with proper notice to the
employer . . . .
Minn. Stat. § 268.095, subd. 6 (Supp. 2003).
In view of Low’s unreasonable expectations of Vaughn, Vaughn’s involvement in Low’s personal conflict fails to satisfy the statutory definition of employment misconduct. Low unreasonably expected Vaughn not to mention or discuss information pertaining to her personal custody dispute. Although Holst was a former client, the information had nothing to do with business. Furthermore, Low unreasonably expected Vaughn to keep Holst out of the office despite a court order. The order is not in evidence, and it is not clear that the order would prohibit Holst from visiting the office while Low was absent. Low apparently allowed Holst in the office to pick up or drop off her son or her son’s belongings. Low’s expectation of Vaughn to literally prevent Holst from stepping onto the property was patently unreasonable.
Vaughn did not intentionally disregard her duties to her employer or the standards of behavior her employer rightfully or reasonably expects of an employee. Vaughn’s involvement in Low’s personal conflict fails to satisfy the statutory definition of “employment misconduct.” See Minn. Stat. § 268.095, subd. 6(a).
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 Low discharged Vaughn on October 29, 2004. Technically, Vaughn’s last day of employment was October 31, 2004.
 The revisor’s office 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).
 This definition applies to cases where the
employee was discharged after August 1, 2003.
See Brown v. Nat’l Amer. Univ., 686 N.W.2d 329 (