This opinion will be unpublished and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

CX-96-1817

Dairyland Electric Co-op., Inc.,

Relator,

vs.

Darla M. Nubson,

Respondent,

Commissioner of Economic Security,

Respondent.

Filed February 4, 1997

Affirmed

Parker, Judge

Department of Economic Security

File No. 1367UC96

David J. Goldstein, Samuel Rosenstein, Faegre & Benson, L.L.P., 2200 Norwest Center, 90 South Seventh Street, Minneapolis, MN 55402 (for relator)

Suzanne Wolbeck Kvas, Stringer & Rohleder, Ltd., 1200 Norwest Center Tower, 55 East Fifth Street, St. Paul, MN 55101-1788 (for respondent Nubson)

Kent E. Todd, Minnesota Department of Economic Security, 390 North Robert Street, St. Paul, MN 55101 (for respondent Commissioner)

Considered and decided by Parker, Presiding Judge, Huspeni, Judge, and Schumacher, Judge.

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

PARKER, Judge

Relator-employer Dairyland Electric Co-op, Inc., appeals the determination of the Commissioner's representative that respondent Darla Nubson was involuntarily separated from her employment for reasons other than misconduct. We affirm.

D E C I S I O N

This court reviews the findings of the Commissioner's representative, not those of the reemployment judge, even when those findings involve witness credibility. Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995). Reviewing courts are not bound by the Commissioner's representative's conclusions of law. Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989). However, the findings of the Commissioner's representative must "be viewed in the light most favorable to the decision, and if there is evidence reasonably tending to sustain them, they will not be disturbed." White v. Metropolitan Med. Ctr., 332 N.W.2d 25, 26 (Minn. 1983).

1. Nubson's Alleged Misconduct

Dairyland argues that the Commissioner's representative erred in concluding that Nubson was not terminated for misconduct. Dairyland contends that, as a matter of law, Nubson was discharged for misconduct under the "last straw" doctrine. Dairyland claims that the Commissioner's representative improperly focused on whether Nubson's alleged "errors" constituted deliberate misconduct and considered Nubson's numerous incidents of misconduct in isolation, rather than collectively.

An individual who is discharged for misconduct is disqualified from receiving reemployment insurance benefits. Minn. Stat. § 268.09, subd. 1(b) (1994). The Minnesota Supreme Court has adopted the following definition of "misconduct:"

[T]he intended meaning of the term 'misconduct' * * * is limited to conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations of disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer. On the other hand, mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed 'misconduct' * * *.

Tilseth v. Midwest Lumber Co., 295 Minn. 372, 374-75, 204 N.W.2d 644, 646 (1973) (quoting Boynton Cab Co. v. Neubeck, 237 Wis. 249, 259, 296 N.W. 636, 640 (1941)). The issue, therefore, is not whether an employer was "justified" in discharging an employee, but whether the employee's actions constituted "misconduct" for reemployment insurance purposes. McCourtney v. Imprimis Technology, Inc., 465 N.W.2d 721, 724 (Minn. App. 1991). Furthermore, the reemployment insurance statutes are remedial in nature and are to be liberally construed in favor of awarding benefits. Ress, 448 N.W.2d at 523. The employer has the burden of proving, by a preponderance of the evidence, that an employee has committed disqualifying misconduct. Id.

Citing to Minn. Stat. § 268.09, subd. 1, and Tilseth, the Commissioner's representative concluded that Dairyland failed to show that Nubson had shown a wilful or wanton disregard of her employer's interests as required by law. Noting that Dairyland's general manager did not acknowledge that Nubson's termination resulted from misconduct as described in Tilseth, the Commissioner's representative determined that Nubson had not committed disqualifying misconduct.

Both parties agree the facts are not in dispute; therefore, the decision of the Commissioner's representative is reviewed independently by this court as a question of law. See Ress, 448 N.W.2d at 523. As a matter of law, we believe the determination of the Commissioner's representative is supported by the evidence.

Despite Dairyland's argument regarding the "last straw" doctrine, the Commissioner's representative concluded that it was inapplicable here:

[T]he incidents set forth by the employer as a basis for the claimant's discharge when taken individually or collectively do not show a willful or wanton disregard of the employer's interest or a lack of concern by the claimant for her job.

(Emphasis added.)

When quoting Tilseth in its brief, we note that Dairyland omits a most pertinent part of the quote defining what does not constitute misconduct:

On the other hand, mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed 'misconduct' * * *.

Tilseth, 295 Minn at 374-75, 204 N.W.2d at 646 (quoting Boynton Cab Co., 237 Wis. at 259, 296 N.W. at 640). Dairyland's general manager testified that Nubson was discharged because she "had used poor judgment, displayed poor performance and lack of concentration in performing her duties."

On review of this record, we cannot say that the employer has met its burden of proof, as required by Ress, to show that Nubson committed disqualifying misconduct. We conclude, therefore, that the determination of the Commissioner's representative is not an error of law and is justified by the facts.

2. Credibility

Dairyland also argues that the Commissioner's representative abused discretion in failing to discuss the rationale of his credibility determinations, in view of the contrary findings and conclusion made by the reemployment insurance judge.

The Commissioner or the Commissioner's representative may "affirm, modify or set aside any finding of fact or decision, or both, of the referee on the basis of the evidence previously submitted * * *." Tuff, 526 N.W.2d at 51. Particular deference is given to the determination of the Commissioner, rather than that of the referee. See White, 332 N.W.2d at 25-26.

We conclude that Dairyland's argument is misplaced. Furthermore, this court is limited to review of the findings made by the Commissioner's representative and not the reemployment judge. See Tuff, 526 N.W.2d at 51. Viewing the findings, as we must, in a light most favorable to the decision, we cannot say that the Commissioner's representative erred in concluding as he did. The decision of the Commissioner's representative is supported by evidence which reasonably tends to support the findings; therefore, we are shown no authority which requires us to disturb that determination.

Affirmed.