This opinion will be unpublished and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

C1-98-57

Mary K. Podobinski,

Relator,

vs.

Minnesota Mining & Mfg. Co.,

Respondent,

Commissioner of Economic Security,

Respondent.

Filed July 7, 1998

Affirmed

Klaphake, Judge

Department of Economic Security

File No. 7575 UC 97

Ann M.I. Mozey, 1211 Yale Ave. S.E., Minneapolis, MN 55414-3122 (for relator)

Kathleen M. Mahoney, David M. Wilk, Oppenheimer Wolff & Donnelly, 1700 First National Bank Bldg., St. Paul, MN 55101 (for respondent 3M)

Kent E. Todd, 390 North Robert Street, St. Paul, MN 55101 (for respondent commissioner)

Considered and decided by Klaphake, Presiding Judge, Forsberg, Judge,* and Holtan, Judge.**

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, 10.

** Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, 10.

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

KLAPHAKE, Judge

Relator Mary K. Podobinski was terminated from her job with respondent Minnesota, Mining & Manufacturing Co. (3M) for unauthorized taking of company property. She challenges a decision by the respondent Commissioner of Economic Security disqualifying her from receiving reemployment insurance benefits for gross misconduct under Minn. Stat. 268.09, subd. 10(2)(i) (Supp. 1997). Because we defer to credibility findings made by the commissioner, and because the evidence reasonably supports the commissioner's findings and decision, we affirm.

D E C I S I O N

An employee is disqualified if discharged from employment for gross misconduct, which is defined as "the commission of an act that amounts to a gross misdemeanor or felony." Minn. Stat. 268.09, subd. 10(2)(i) (Supp. 1997). A person commits gross misdemeanor theft by wrongfully taking property valued between $200 and $500. See Minn. Stat. 609.52, subd. 2(1), (5), subd. 3(4); 609.02, subd. 4 (1996).

The following facts are undisputed: (1) relator worked for 3M from 1978 to 1997; (2) at the time of her discharge, she was a sales associate at the company store; (3) in mid-June 1997, relator rang up a sale for two surround sound systems worth $280, created a sales receipt, cancelled the sale, and left the store with the sound systems and sales receipt; (4) relator worked for one week after she took the sound systems and then took a two-week vacation; (5) during her vacation, the supervisor at the company store discovered the sound systems missing and determined that a sale of the systems had been entered and then cancelled on relator's register; (6) the supervisor contacted 3M's human resources manager and 3M security, who conducted an investigation; (7) on July 14, when relator returned from vacation and was asked about the sound systems, she first stated she "must have" paid for them, then admitted she "might not" have paid but would check, and finally claimed that she had forgotten to pay for the items and paid for them at that time; and (8) relator was terminated on July 23 for unauthorized removal of company property without paying.

Relator claims that she intended to pay for the merchandise at a later date and that it was a common practice for employees to follow this procedure when selling merchandise to friends or relatives. However, 3M's human resources manager testified that taking merchandise and paying for it later was not an approved practice. Although his testimony was based on conversations he had with a supervisor and manager, hearsay evidence is admissible in reemployment cases and may support a finding of misconduct. See Seemann v. Little Crow Trucking, 412 N.W.2d 422, 426 (Minn. App. 1987).

In addition, the commissioner simply found relator's testimony "self serving" and not credible. While relator claims that she did not intend to steal from 3M, intent may be proved by a person's conduct in light of the surrounding circumstances. Manos v. First Bank Minnehaha, 357 N.W.2d 372, 375 (Minn. App. 1984). Relator's intent may easily be inferred from her conduct in this case.

The commissioner is free to make findings regarding witness credibility, even if those findings are contrary to findings made by the reemployment insurance judge. See Minn. Stat. 268.105, subd. 3 (Supp. 1997) (commissioner may "disregard the findings of fact of the reemployment insurance judge and examine the evidence and make any findings of fact as the evidence may, in the judgment of the commissioner require, and make any decision as the facts found by the commissioner require"). Moreover, this court reviews the decision of the commissioner's representative, not the decision of the reemployment insurance judge. Tuff v. Knitcraft, 526 N.W.2d 50, 51-52 (Minn. 1995). Given our limited standard of review, we must affirm the commissioner's representative's findings and decision because they are reasonably supported by the evidence. See, e.g., Ballin v. Metropolitan Transit Comm'n, 525 N.W.2d 11, 14 (Minn. App. 1994) (affirming denial of benefits based on conclusion that relator's commission of off-duty felony for selling marijuana interfered with and adversely affected relator's employment as public bus driver); Waara v. Mesabi Reg. Med. Ctr., 415 N.W.2d 362, 364 (Minn. App. 1987) (affirming disqualification due to theft and forgery); Manos, 357 N.W.2d at 375 (affirming conclusion that relator committed gross misconduct by failing to report overpayments in paychecks, even though relator claimed she did not know of overpayments); Raaum v. Glenwood Retirement Homes, 357 N.W.2d 131, 132 (Minn. App. 1984) (affirming rejection of relator's claim that she took another's property by "mistake").

We therefore affirm the decision of the commissioner's representative disqualifying relator for gross misconduct.

Affirmed.