This opinion will be unpublished and

may not be cited except as provided by

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








John H. Sarles,





Paper Payment Services LLC,



Commissioner of Economic Security,



Filed October 8, 2002


Robert H. Schumacher, Judge



Department of Economic Security

File No. 943601



James Christopher Ohly, 1850 North Broadway, Rochester, MN 55906 (for relator)


Paper Payment Services LLC, 3680 Victoria Street North, Shoreview, MN 55126 (respondent)


Linda Alison Holmes, Department of Economic Security, 390 North Robert Street, St. Paul, MN 55101 (for respondent Commissioner)



            Considered and decided by Schumacher, Presiding Judge, Klaphake, Judge, and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N


This is a certiorari appeal from the decision of the commissioner's representative that relator John H. Sarles engaged in misconduct and was disqualified from receiving unemployment benefits.  Sarles contends that three of the commissioner's representative's findings were not supported by the evidence, his failure to pay credit card bills in a timely manner was merely poor work performance that did not constitute misconduct, there was no evidence he misappropriated funds, and his alleged misconduct was caused by his physical and mental condition resulting from a head injury.  We affirm.


            Sarles was employed by respondent Paper Payment Services LLC from April 12, 1993, to July 10, 2001.  At the time of his termination, Sarles worked as a communication specialist.  His duties included coordinating trade show logistics, customer visits, and large, internal company meetings.  Related to these duties, Sarles handled several credit card accounts that were used to arrange travel and lodging for employees who attended these events.  The credit card bills, which at times exceeded a balance of $800,000, came to Sarles, and it was his job responsibility to perform the internal processing of the invoices and then submit them to accounts payable.

             On July 10, 2001, Paper Payment Services discharged Sarles.  On August 10, 2001, the Minnesota Department of Economic Security determined that Sarles was disqualified from receiving unemployment benefits because he had been discharged for employment misconduct.  Sarles appealed, and on October 9, 2001, a hearing was held before an unemployment law judge.  On October 18, 2001, the unemployment law judge reversed the department's determination of disqualification, finding that Sarles's actions "were not intentional acts which rise to the level of misconduct."  On November 14, 2001, Paper Payment Services appealed.

            On February 11, 2002, the commissioner's representative reversed the decision of the unemployment law judge.  The commissioner's representative made the following findings of fact that Sarles's performance had been lacking, he was made aware of the performance deficiencies, and the problems continued.  The commissioner's representative also found that Sarles took cash advances against corporate credit cards and that he failed to adequately explain this conduct.  The commissioner's representative's reasons for reversing the unemployment law judge's decision included the following:

[A] review of documents shows that John Sarles was treated for migraine headaches and there is nothing in those reports which supports his contention that he was suffering from short-term memory loss.


            A review of the evidence and given the amounts involved, this was not simple inadvertence.  We note that at no time did John Sarles ever tell his employer that he was having a particular problem remembering certain things regarding the failure to get the bills to the appropriate people so they were timely paid.


            * * * *


            The evidence also shows that John Sarles is unable to explain $1600.00 in cash advances taken in early May 2001 from the employer's credit card.  The employer certainly has the right to expect John Sarles to account for the cash advance. 


            A preponderance of the available evidence here shows action in violation of the standards of behavior the employer had a right to expect and conduct which showed a substantial lack of concern for the employment. 


            The commissioner's representative decided that Sarles was discharged for employment misconduct.  Sarles appeals.


On appeal, we review the decision of the commissioner's representative rather than that of the unemployment law judge.  Kalberg v. Park & Recreation Bd. of Minneapolis, 563 N.W.2d 275, 276 (Minn. App. 1997).  We afford particular deference to the commissioner's representative's decision, including findings involving witness credibility.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  The reviewing court determines whether there is "reasonable support in the evidence to sustain the decision" of the commissioner's representative.  Id. (quotation and citation omitted). 

An employee discharged for misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4(1) (2000).  Appellate review of a misconduct determination by the commissioner's representative presents a mixed question of fact and law.  Colburn v. Pine Portage Madden Bros., Inc., 346 N.W.2d 159, 161 (Minn. 1984). 

We review the factual findings of the commissioner's representative in the light most favorable to the decision and determine whether there is evidence in the record that reasonably tends to sustain those findings.


Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996).  Whether those findings support a misconduct determination is a question of law subject to de novo review.  Cook v. Playworks, 541 N.W.2d 366, 368 (Minn. App. 1996).

Sarles argues that there is inadequate evidence in the record to support the commissioner's representative's finding that he had been reprimanded in the past for failure to make payments on time.  The initial statement of the employer includes the following language:

[Sarles] had been coached within his performance reviews and had received on-going coaching from his manager about submitting expense reports and financial reports on a timely basis.  * * * Earlier in the year, there were other late fees for both the credit card and for fees charged for late entrance into trade shows.  * * * In 2001, [Sarles's] lack of timeliness in submitting the expense reports resulted in $42,000 in late fees.  There were also cash advances shown as having been taken from [Sarles's] credit card account.


The employer's response to Sarles's statement includes several additional statements indicating Sarles's problems, his notice of the problems, and his failure to correct them or even attempt to correct them.  Sarles's argument is without merit.  There was adequate evidence to support the findings.

The company's spokesperson testified at the hearing that she prepared the employer's statement.  Sarles argues that he was not "told that this company position statement would be treated as any sort of evidence."  The unemployment law judge, however, marked the employer's rebuttal statement as exhibit D-5 during the hearing.  When the unemployment law judge asked Sarles if he had any objection to the documents being received into evidence, Sarles replied, "No sir."  These documents were admitted into evidence at the hearing and are part of the record.

Sarles next argues that the record does not support the commissioner's representative's finding that he did not adequately explain the cash advances.  The employer's initial statement provides:

There were also cash advances shown as having been taken from [Sarles's] credit card account.  When asked about those, he said that they were for gift certificates for the sales conference.  However, under further investigation, it was discovered that the sales manager had purchased and expensed his own gift certificates.  [Sarles] was not able to produce receipts as to what the cash advances were for and offered no further explanation. 


Sarles's explanation following the termination was:

As far as the gift certificates the employer refers to – I did purchase these for business purposes – the employer knew I always did this – if they are inferring that I was dishonest or did something wrong – I did not.


Sarles argues that the allegations that he misappropriated funds through unexplained cash advances are not relevant to the determination of misconduct, because "this alleged incident had no bearing on the decision to terminate [his] employment."  The employer's initial statement and rebuttal statement to the department, however, both cite the unaccounted for cash advances as a reason Sarles was terminated.

Sarles argues that the record does not support the commissioner's representative's finding that he failed to produce adequate evidence that he suffered from a condition causing short-term memory loss.  Sarles asserts that there is ample uncontradicted evidence that his memory issues were related to his medical condition.  The only evidence that addresses any memory problem is a letter to Sarles's doctor from a neurologist.  The letter states that Sarles was "well until Sunday, May 20, 2001," at which point he developed a serious headache.  The letter, written on May 31, 2001, continues:

[Sarles] states that he generally reads much of the time, not only for work but also for enjoyment, but since the headache started he has found it difficult to read and retain information.    


The neurologist merely relayed what Sarles had told him; the neurologist did not make an independent finding that Sarles had any memory problem. 

In reference to an automobile accident, which Sarles now asserts is the cause of his problems at work, the neurologist's letter states:

He was in an automobile accident four years ago and was told that he had a swollen temporal lobe.  It is unclear on what basis this diagnosis was made, but he states that he recovered in several weeks.  He has had no problems since that time.


The neurologist also wrote that Sarles's "[m]ental status is normal" and "the most likely diagnosis is migraine headaches."  When Sarles initially applied for unemployment benefits, he stated, "I understand I made a mistake – my actions were stupid but they were not intended nor were they negligent."  Sarles's initial statement made no mention of any medical problems. 

            Sarles argues that, even if the findings of the commissioner's representative are accurate, his behavior does not constitute misconduct.  Minn. Stat. § 268.095, subd. 6 (2000), provides:

(a)       Employment misconduct means:


(1)       any intentional conduct, on the job or off the job, that disregards the standards of behavior that an employer has the right to expect of the employee or disregards the employee's duties and obligations to the employer; or

(2)       negligent or indifferent conduct, on the job or off the job, that demonstrates a substantial lack of concern for the employment.


(b)       Inefficiency, inadvertence, simple unsatisfactory conduct, poor performance because of inability or incapacity, or absence because of illness or injury with proper notice to the employer, are not employment misconduct.


In this case, the commissioner's representative found (1) Sarles failed to timely pay the credit card bills after repeated warnings from his supervisor; (2) Sarles used the employer's credit card to take cash advances that he could not account for; and (3) Sarles told his supervisor that he had agreed to implement a performance improvement plan that he never intended to carry out and that he did so in order to "appease" the supervisor.  We conclude that the record reasonably supports the commissioner's representative's findings and conclusion.