This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).


Lori L. Meinzer,


Buhl 66,

Commissioner of Economic Security,

Filed October 19, 1999
Willis, Judge

Department of Economic Security
File No. 9184UC97

Peter B. Knapp, Supervising Attorney, Anne Huntley, Certified Student Attorney, William Mitchell Law Clinic, 875 Summit Avenue, St. Paul, MN 55105 (for relator)

Buhl 66, C & B Warehouse Distributing, Inc., Box 1224, Virginia, MN 55792 (respondent)

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

Considered and decided by Willis, Presiding Judge, Shumaker, Judge, and Foley, Judge.[*]

U N P U B L I S H E D   O P I N I O N


Appellant Lori Meinzer argues that the decision of the commissioner's representative should be reversed because she did not receive a procedurally fair hearing and the conduct for which she was fired was an inadvertent misunderstanding of company policy rather than misconduct as defined by Minn. Stat. § 268.09, subd. 12 (Supp. 1997). We affirm.


Meinzer was discharged from her job as a cashier at Buhl 66, a convenience store, in September 1997 because she allegedly failed to process the sale of several bottles of soda pop and because she left work with items from the store and did not have a receipt showing that she had paid for them. Meinzer states that she paid for the items earlier in her shift but did not keep the receipt.

The company policy and procedure manual requires employees to process any purchases they will not consume on the premises as the last sale of the day, and the items purchased are to be circled and initialed by the employee on the cash-register tape. Further, the manual states that the employee must keep the receipt with the purchase and failure to do so may result in dismissal. Meinzer signed an acknowledgment stating that she had read and understood the manual.


An appellate court reviews findings of the commissioner's representative in the light most favorable to the decision. Group Health Plan, Inc. v. Lopez, 341 N.W.2d 294, 296 (Minn. App. 1983). If there is evidence reasonably tending to sustain the findings, they will not be disturbed. Id. A reviewing court exercises its independent judgment concerning a question of law. Smith v. Employers' Overload Co., 314 N.W.2d 220, 221 (Minn. 1981). The determination that an employee committed disqualifying misconduct is a mixed question of fact and law. Colburn v. Pine Portage Madden Bros., Inc., 346 N.W.2d 159, 161 (Minn. 1984).


Meinzer argues that she was denied due process of law when the Department of Economic Security denied her request that her hearing before a reemployment judge be held in St. Paul. The hearing was held in Virginia, Minnesota; Meinzer appeared in person, and her attorney appeared by telephone from St. Paul. Meinzer argues this unfairly separated her from her counsel, but she cites no law to support her argument.

A telephone hearing may be scheduled if "the parties are at such locations as to make a prompt, in-person hearing impractical." Minn. R. 3310.2906, subp. 2A(1) (1997). Because Meinzer's student attorney attended school in St. Paul, it was impractical for her to come to Virginia, a distance of 190 miles, for a hearing, and, likewise, it was impractical to ask the employer to drive to St. Paul. While this arrangement may have been less than perfect from Meinzer's point of view, it was permissible under Minn. R. 3310.2906, subp. 2A(1).

Meinzer also argues that the department refused to grant her a continuance for a hearing that was originally scheduled for October 5, 1998. But the record shows that the hearing before the reemployment insurance judge was held on November 3, 1998. A reemployment insurance hearing may be rescheduled only once except in the case of an emergency. Minn. R. 3310.2908 (1997). Here, Meinzer's hearing was rescheduled once and Meinzer has not claimed that any emergency existed that would have required the reemployment insurance judge to grant a second continuance.

Next, Meinzer argues that her claim was prejudiced because her counsel was unable to hear the witnesses and the judge on several occasions due to problems with the telephone link between Virginia and St. Paul. An examination of the record, however, shows that while counsel for Meinzer had to ask, on several occasions, that those present at the hearing repeat themselves, her responses indicate that she was able to hear the testimony. Meinzer also argues that the judge did not hear an offer of proof that her counsel made and thus ruled the evidence irrelevant. But the record shows that Meinzer's counsel moved on, without making an offer of proof, after the judge made her evidentiary ruling. Therefore, she cannot raise the issue now. See Estate of Hartz v. Nelson, 437 N.W.2d 749, 752 (Minn. App. 1989) (stating that party who objects to exclusion of evidence must make offer of proof so that reviewing court may rule on admissibility of excluded evidence), review denied (Minn. July 12, 1989).

Meinzer also claims that the judge wrongfully excluded evidence that, although Meinzer signed the acknowledgement stating she had read and understood the policy manual, she did not appreciate the significance of its contents and she may have signed the acknowledgment several days after reading it. Whether Meinzer understood the significance of the policies when she signed the acknowledgment or whether she signed the acknowledgment several days after reading it has no legal significance. Once Meinzer signed the form, she was responsible for following the policies and procedures in the manual.

Finally, Meinzer argues that she was not able to develop fully the relevant facts regarding her improper training by a co-worker, who was later fired for stealing. See Minn. R. 3310.2921 (1997) (providing that reemployment judge shall ensure that relevant facts are clearly and fully developed). But even if a co-worker mistrained her, Meinzer was still responsible for knowing and following the company policies.


The employer must prove that an employee is disqualified from receiving reemployment insurance benefits and must prove misconduct, if that is the alleged reason for disqualification, by a preponderance of the evidence. Marz v. Department of Employment Servs., 256 N.W.2d 287, 289 (Minn. 1977); see also Minn. Stat. § 268.09, subd. 10(1) (Supp. 1997).

Meinzer argues that her employer failed to prove she engaged in misconduct as defined by statute. Instead, she argues that she simply misunderstood workplace procedures, citing Tuckerman Optical Corp. v. Thoeny, 407 N.W.2d 491, 493 (Minn. App. 1987) (stating good-faith misunderstanding of employer's rules or policies does not constitute misconduct). See also Minn. Stat. § 268.095, subd. 6(3) (1998) (providing that inefficiency and inadvertence are not misconduct).[1] But in Tuckerman, the court concluded that there was substantial evidence in the record to support the representative's finding that respondent acted innocently and had no intent to harm her employer. 407 N.W.2d at 494. Here, there is no such substantial evidence tending to support Meinzer's argument that she acted innocently. We conclude that Meinzer's employer proved misconduct by a preponderance of the evidence and that the evidence reasonably supports the findings of the commissioner's representative that Meinzer's actions were intentional and not in the interest of her employer.


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

[1] Renumbered from Minn. Stat. § 268.09, subd. 12(3) (1996). 1998 Minn. Laws ch. 265, § 45.