This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






Linda C. Raiber,





Stearns County Law Library Board of Trustees,



Department of Employment and Economic Development,



Filed December 20, 2005


Gordon W. Shumaker, Judge


Department of Employment and Economic Development

File No. 17930 04




Michael K. O’Tool, 18073 Bernard Trail, Brainerd, MN 56401 (for relator)


Jeff M. Zalasky, Iverson Reuvers LLC, 9321 Ensign Avenue South, Bloomington, MN 55438 (for respondent employer)


Linda A. Holmes, Department of Employment and Economic Development, 332 Minnesota Street, Suite E200, St. Paul, MN 55101-1351 (for respondent department)




            Considered and decided by Lansing, Presiding Judge; Shumaker, Judge; and Hudson, Judge.


U N P U B L I S H E D   O P I N I O N


On certiorari appeal, relator challenges the determination of the Department of Employment and Economic Development (DEED) that relator committed employment misconduct and is, therefore, disqualified from receiving unemployment benefits.  Because the record supports that determination, we affirm.


Relator Linda C. Raiber worked as a law librarian for the Stearns County law library from September 1987 until October 13, 2004, when the Stearns County Library Board of Trustees discharged her for employment misconduct. 

In May 2004, the board noted problems with Raiber’s job performance.  Of particular concern were her frequent absences from the law library during posted hours and the use of county time to do work for the county bar association and the local Inns of Court chapter, private organizations for which Raiber served as secretary. 

At a meeting on September 9, 2004, a board member emphasized to Raiber the importance of being present in the law library, and he asked her whether she had any obligations that would take her away from the library between that date and the date of the next board meeting on October 13, 2004.  Raiber indicated that she wanted to attend her son’s wedding and the annual meeting of law librarians.  The board apparently approved those absences.  Raiber failed to tell the board that the law librarians’ meeting would not take place until late October. 

The minutes of the board’s October 13 meeting, which were made part of the record, show that Raiber admitted that she had attended a CLE meeting rather than the law librarians’ meeting.  The board determined that the CLE matter related to her bar association work and that she had improperly engaged in bar association business on county time, thereby committing employment misconduct.  Raiber disputes the authenticity of the board minutes, contends that she had requested time off to attend both meetings, that the CLE meeting benefited the law library, and that she and the board had an established understanding that she could attend these types of meetings as long as she made up the lost time. 

The senior unemployment review judge (SURJ) determined that Raiber was disqualified from receiving unemployment benefits, and she brought this certiorari appeal.


On certiorari appeal, a reviewing court must examine the decision of the SURJ[1] rather than that of the unemployment law judge.  Kalberg v. Park & Recreation Bd., 563 N.W.2d 275, 276 (Minn. App. 1997).  This court accords “particular deference” to the decisions of the SURJ.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  “Although a reviewing court might reach a contrary conclusion to that arrived at by an administrative body, the court cannot substitute its judgment for that of the administrative body when the finding is properly supported by the evidence.”  Vicker v. Starkey, 265 Minn. 464, 470, 122 N.W. 2d 169, 173 (1963).  When parties present conflicting evidence, this court will defer to the SURJ’s findings and ability to weigh the evidence and will not consider that evidence de novo.  Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995). 

“Whether an employee engaged in conduct that disqualifies the employee from unemployment benefits is a mixed question of fact and law.”  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 this court reviews de novo.”  Id.  A reviewing court will affirm the SURJ’s determination if the findings are supported by the evidence and the conclusion based on those facts is consistent with the statutory mandate.  Colburn v. Pine Portage Madden Bros. Inc., 346 N.W.2d 159, 161 (Minn. 1984).

An employee who is discharged for employment misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4(1) (2004).  Employment misconduct is defined as “any intentional, negligent, or indifferent conduct, on the job or off the job, (1) that displays clearly a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee, or (2) that displays clearly a substantial lack of concern for the employment.”  Minn. Stat. § 268.095, subd. 6(a) (2004).  On the other hand, employment misconduct is not

inefficiency, 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[.] 



1.         Determinations of witness credibility

Raiber contends that the SURJ who heard her case abused his discretion by believing the board’s contention that she lied to the board about attending the law librarians’ meeting, as she argues she had no motive to lie.  She argues that the minutes of the October 13 meeting were a “he-said-she-said” factual dispute between Raiber and the board chair.  When witness credibility is at issue, the reviewing court defers to the SURJ’s determinations and does not weigh the evidence.  Whitehead, 529 N.W.2d at 352.  The record shows the very dispute Raiber notes and thereby raises a credibility issue.  We defer to the SURJ’s credibility determinations.

2.         Qualifying misconduct

Raiber next argues that she did not engage in employment misconduct because her attendance at the bar association CLE benefited the law library.  But she ignores the fact that the library board specifically requested that she refrain from working on bar association projects during law library time and that she be present during her regularly scheduled hours.  At the September 2004 meeting, the board approved Raiber’s leave only to go to a law librarians’ meeting, not to go to a bar association function.  Raiber disputes the notes from the board meeting and claims that there was a misunderstanding because she wanted to be off for both the law librarian’s meeting and the bar association CLE.  Raiber’s dispute raises a credibility issue that the SURJ resolved against her.  The record supports this determination.

            Raiber committed employment misconduct when she attended the bar association CLE and continued to work on bar association matters during the time she was supposed to be working for the law library.  The board had warned her not to engage in non-county functions during her work time.  Despite the warning, she attended the bar association CLE during law library hours.  Raiber’s attendance at the bar association CLE illustrates a substantial lack of concern for her employment at the law library and meets the definition of employment misconduct.  Minn. Stat. § 268.095, subd. 6(a) (2004)

Thus, the evidence reasonably supports the SURJ’s determination that Raiber was terminated for employment misconduct.  This court will affirm the SURJ’s determination if the findings are supported by the evidence and the conclusion based on those facts is consistent with the statutory mandate.  Colburn, 346 N.W.2d at 161. 

3.         Limiting witness testimony

            In her appeal, Raiber also argues that she was precluded from testifying about the harassment on her job.  At the hearing, Raiber’s own attorney agreed this excluded testimony was not relevant, but now she raises the issue on appeal.  We conclude that “[b]ecause the issue was not before the [SURJ], we will not address it on appeal.”  Imprint Techs., Inc. v. Comm’r of Econ. Sec., 535 N.W.2d 372, 378 (Minn. App. 1995); see also Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).  Furthermore, we are aware of nothing about this claim that would alter the finding of employment misconduct.


[1]  Under a recent change by the legislature, the decision is now made by the senior unemployment review judge rather than the commissioner’s representative.  There is no indication that our standard of review of the decision has changed.  2004 Minn. Laws ch. 183, § 71.