This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






Donald B. Bodenweiser,





Quality Print of Waseca, Inc.,



Commissioner of Economic Security,



Filed December 18, 2001


Huspeni, Judge*


Department of Economic Security

File No. 847-01


Donald B. Bodenweiser, 207 Fifth Street Northeast, Waseca, MN 56093-3315 (relator pro se)


Quality Print of Waseca, Inc., 205 South State Street, Waseca, MN 56093 (respondent)


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


            Considered and decided by Lansing, Presiding Judge, Kalitowski, Judge, and Huspeni, Judge.


U N P U B L I S H E D   O P I N I O N


            Relator challenges the decision of the representative of the Commissioner of the Department of Economic Security denying unemployment benefits on the basis of employee misconduct.  Because evidence supports the determination of the commissioner’s representative that relator’s actions constituted employee misconduct and that relator was discharged for that misconduct, we affirm.


Relator Donald Bodenweiser was employed by respondent Quality Print of Waseca (Quality Print) where he worked in prepress and finishing.  After being employed for approximately 18 months, Bodenweiser worked on a day not regularly scheduled in order to complete a print job.  After punching out, Bodenweiser printed 200 take-out menus for Chance Bar and Grill (Chance) without obtaining the permission of Quality Print.  The owner of Chance was a friend of Bodenweiser’s, as well as a customer of Quality Print.  Bodenweiser returned to work on his next scheduled workday, but left approximately an hour and a half later for a dental appointment.  He stated that he would not return that day.  For the next two days, Bodenweiser called and said he would not be at work because of a tooth infection.  In the afternoon of the second day, Bodenweiser called again and left a message that he would return to work the following day. 

Later that second day, Joe Glynn, Quality Print’s owner, informed Bodenweiser that he had been discharged.  Bodenweiser testified that Glynn was very irate and said that Bodenweiser could come in the next day to pick up his check.  Instead, Bodenweiser went to Quality Print that same night to pick up his final check, to get a further explanation as to why he had been discharged, and to ask whether he and Glynn “could work it out.”  Glynn asked Bodenweiser who got paid for the Chance joband stated that he did not care about Bodenweiser’s physical ailments.  Bodenweiser asked Glynn why he was not notified of his discharge until two days after his final paycheck was issued.  According to Bodenweiser, Glynn responded that he was very upset about the menus that Bodenweiser had printed and if Bodenweiser had not been away from work because of his teeth, Glynn would have torn the check up.  Bodenweiser understood this to mean that if he had returned to work the day of his dental appointment he would still be employed at Quality Print.

Following his discharge, Bodenweiser sought and was found eligible for unemployment benefits.  Quality Print appealed.

On appeal, Glynn testified before the unemployment law judge that he discharged Bodenweiser because the Chance job had been printed without Glynn’s permission.  Glynn conceded that he had allowed employees to use Quality Print equipment and material for personal jobs in the past, but that employees were required to obtain his permission prior to printing and the printing had to be for the employee’s personal use.

The unemployment law judge reversed the initial determination of eligibility and concluded that Bodenweiser had been discharged for employment misconduct; namely, the printing of the Chance job.  Bodenweiser appealed, arguing that the Chance job was not the real reason he was discharged.  The commissioner’s representative affirmed the ruling of the unemployment law judge, and this appeal followed.



An employee is disqualified from receiving benefits if discharged because of employment misconduct.  Minn. Stat. § 268.095, subd. 4(1) (2000).  Whether an act constitutes misconduct is a question of law upon which this court is “free to exercise its independent judgment.”  Ress v. Abbott N.W. Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).

To the extent that Bodenweiser appears to argue that he should be eligible for unemployment benefits because the unauthorized printing job he completed for Chance does not constitute employment misconduct, we disagree.

“Employment misconduct” is defined as any intentional conduct that “disregards the standards of behavior that an employer has the right to expect of the employee” or any negligent or indifferent conduct that “demonstrates a substantial lack of concern for the employment.”  Minn. Stat. § 268.095, subd. 6(a)(1), (2) (2000).  Also, this court has held that theft from an employer constitutes misconduct.  See, e.g., Dawson v. Northland Beverages, Inc., 347 N.W.2d 287, 288-89 (Minn. App. 1984) (route driver committed misconduct when, on three occasions, he collected more money than his invoices showed and could not explain how the overages occurred). 

Because Bodenweiser used Quality Print’s equipment and supplies for his own benefit without his employer’s permission, his actions of printing the Chance job—whether the act is considered theft or whether it demonstrates a disregard for his employment—constitute employment misconduct as defined in Minn. Stat. § 268.095 (2000).


Bodenweiser’s primary argument on appeal is that the true reason he was discharged was not for misconduct, but because he missed two days of work due to dental problems.  In support of this argument, he cites the statement of Glynn that if Bodenweiser had not missed the two days, Glynn would have torn up the final paycheck.  Thus, argues Bodenweiser, Glynn acknowledged that Bodenweiser’s medical absence was, in fact, the real reason for his discharge.

            An appellate court’s review of an administrative body’s decision is limited to deciding whether the evidence in the record reasonably supports the decision of the commissioner’s representative.  Markel v. City of Circle Pines, 479 N.W.2d 382, 383-84 (Minn. 1992).  The appellate court views the commissioner’s findings in the light most favorable to the decision and defers to the commissioner’s resolution of conflicting evidence.  Ress, 448 N.W.2d at 523.

            Mindful of the deferential standard granted to the commissioner’s findings, our review of the record before us supports a determination that Bodenweiser was discharged for the Chance job.  Bodenweiser admits that he printed the job and that Glynn was irate because of it.  More importantly, Glynn stated that he discharged Bodenweiser for printing the Chance job, indicating that Bodenweiser

used my place of business, my equipment, my paper, my ink, my everything to print a job for my customer – that I didn’t know about or even create a job ticket for.


This evidence, which the commissioner’s representative must have found to be credible, is sufficient to support the determination that Bodenweiser’s discharge was for misconduct, rather than for medical absence.




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