This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-96-1488

Paula J. Rock,

Relator,

vs.

Nordstrom, Inc.,

Respondent,

Commissioner of Economic Security,

Respondent.

Filed January 7, 1997

Affirmed

Davies, Judge

Department of Economic Security

File No. 3334UC96

Paula J. Rock, 3449 Colfax Ave. S. #1, Minneapolis, MN 55408 (Pro Se Relator)

Nordstrom, Inc., c/o The Gibbens Company, Inc., P.O. Box 3930, Des Moines, IA 50322 (Respondent)

Kent E. Todd, Department of Economic Security, 390 N. Robert St., St. Paul, MN 55101 (for Respondent Commissioner of Economic Security)

Considered and decided by Randall, Presiding Judge, Toussaint, Chief Judge, and Davies, Judge.

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

DAVIES, Judge

Relator challenges her disqualification from reemployment insurance benefits, arguing that the Commissioner erroneously determined she was terminated for misconduct. We affirm.

FACTS

Relator Paula J. Rock worked as a sales associate for respondent Nordstrom, Inc., from May 1994 until her involuntary termination in February 1996. She then filed a claim with the Minnesota Department of Economic Security for reemployment benefits. The Commissioner's representative denied the claim, concluding that relator had been terminated for misconduct.

D E C I S I O N

Whether an employee committed misconduct is a mixed question of fact and law. Colburn v. Pine Portage Madden Bros., 346 N.W.2d 159, 161 (Minn. 1984). We will not disturb the Commissioner's factual findings if there is evidence reasonably tending to support them. White v. Metropolitan Med. Ctr., 332 N.W.2d 25, 26 (Minn. 1983). However, whether the established facts constitute misconduct is a question of law to be independently reviewed by this court. Ress v. Abbott Northwestern Hosp., 448 N.W.2d 519, 523 (Minn. 1989).

Under Minn. Stat. § 268.09, subd. 1(b) (1996), an employee who is discharged for misconduct is disqualified from reemployment insurance benefits. The Minnesota Supreme Court has defined "misconduct" to include

conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee * * * .

Tilseth v. Midwest Lumber Co., 295 Minn. 372, 374-75, 204 N.W.2d 644, 646 (1973) (quoting Boynton Cab Co. v. Neubeck, 296 N.W. 636, 640 (Wis. 1941)). The employer bears the burden of showing that it discharged the employee for misconduct. Lumpkin v. North Cent. Airlines, 296 Minn. 456, 459, 209 N.W.2d 397, 400 (1973).

The evidence reasonably sustains the Commissioner's findings that relator returned to Nordstrom's department store--for cash--a pair of shoes that she did not purchase there. When confronted by a loss prevention manager the next day, relator first falsely stated that she had bought the shoes a couple of months previously, then admitted that she had received them as a gift from a store supplier. The evidence shows that the employer terminated relator primarily on the basis of her false statements.

Relator had a duty to be truthful in responding to her employer's inquiry regarding the source of the shoes. See Cherveny v. 10,000 Auto Parts, 353 N.W.2d 685, 688 (Minn. App. 1984) (recognizing that once employee undertook to answer employer's questions, employee was under duty to answer honestly). In lying to the loss prevention manager, relator deliberately violated the standards of behavior the employer has a right to expect of its employees. See id. (finding misconduct where employee made false statements in response to employer's investigation into suspected theft); see also Blau v. Masters Restaurant Assocs., 345 N.W.2d 791, 794 (Minn. App. 1984) (affirming denial of benefits to employee who lied about leaving work early and refused to discuss his actions with employer).

We affirm the Commissioner's determination that relator was terminated for misconduct. Relator is disqualified from benefits.

Affirmed.