This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







Barbara J. Daniels,


Carlson Construction,

Commissioner of Economic Security,


Filed May 6, 2003


Wright, Judge


Department of Economic Security

Agency File No. 195402



Barbara J. Daniels, 31938 18th Avenue, Number 4, Cushing, MN  56443 (pro se relator)


Carlson Construction, 1580 College Road South, Baxter, MN  56425 (respondent)


Lee B. Nelson, M. Kate Chaffee, Department of Economic Security, 390 North Robert Street, St. Paul, MN  55101 (respondent Commissioner)



            Considered and decided by Wright, Presiding Judge, Randall, Judge, and Shumaker, Judge.


U N P U B L I S H E D  O P I N I O N




            Relator Barbara Daniels challenges the decision of the Commissioner of Economic Security that she is disqualified from receiving unemployment benefits because she committed aggravated employment misconduct.  We affirm. 



            Daniels was employed as a controller at Carlson Construction (the company) from August 1997 until October 2001.  Over the course of her employment, Daniels credited herself with 69.5 unearned vacation hours at a cost to the company of over $1,300.  Daniels also charged over $20,000 in personal expenses on the company’s credit card and failed to reimburse the company.

            In October 2001, Marty Carlson, the company’s president, learned of Daniels’s actions.  To save her embarrassment, Carlson agreed to lay off Daniels instead of discharging her for cause, on the condition that Daniels repay the money she owed.

Daniels signed a separation agreement in which she agreed to reimburse the company $1,384.44 for vacation time she had not earned and $3,218.06 for unauthorized personal expenses charged on the company’s credit card.  Daniels later rescinded the agreement, claiming that it was void because she signed it under duress and was told that the details would be worked out at a later time.  She then applied for unemployment benefits.

In January 2002, a departmental adjudicator determined that the company discharged Daniels for reasons other than employment misconduct and that she was not, therefore, disqualified from receiving benefits.  Following a telephonic hearing, an unemployment law judge reversed, finding that a preponderance of the evidence showed that Daniels “had, in fact, been stealing from the company.” 

In July 2002, the commissioner affirmed the unemployment law judge’s determination, noting that

[Daniels’s] explanation that her excessive vacation use was the result of a misunderstanding, and her allegation [that] the employer allowed her to use the credit card in order to avoid unemployment or other tax liability [are] not credible.


This appeal followed.



When reviewing a determination of the Commissioner of Economic Security, we consider only whether the record reasonably supports the commissioner’s determination.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  We view the commissioner’s findings in the light most favorable to the decision and will reverse only if the findings are not reasonably supported by the evidence.  Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996). 

An employee is disqualified from receiving unemployment benefits when he or she is discharged for aggravated employment misconduct.  Minn. Stat. § 268.095, subd. 4(2) (2002).  Whether an employee has engaged in disqualifying misconduct is a mixed question of law and fact.  McCourtney v. Imprimis Tech., Inc., 465 N.W.2d 721, 724 (Minn. App. 1991).  Whether an employee committed a particular act is a question of fact.  Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  But whether the act constitutes misconduct is a question of law, which we review de novo.  Ress v. Abbott N.W. Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).     

            Minnesota law defines aggravated employment misconduct as

the commission of any act, on the job or off the job, that would amount to a gross misdemeanor or felony if the act interfered with or adversely affected employment * * * .


Minn. Stat. § 268.095, subd. 6a(1) (2002).  The record reasonably supports the commissioner’s determination that Daniels committed acts that amount to a felony and adversely affected the company.  See Minn. Stat. § 609.52, subd. 2(1) (2000) (defining theft as intentional taking of another’s property without consent or claim of right); subd. 3,(3)(a) (providing that theft of property valued at more than $500 punishable as felony). 

            Carlson and his wife, the company’s bookkeeper, testified that, according to documents that Daniels prepared, Daniels used at least 69.5 hours of vacation time to which she was not entitled.  In the separation agreement she signed, Daniels agreed to repay the company $1,384.44 for the 69.5 vacation hours she used but had not earned.   

            The Carlsons also testified that Daniels charged personal expenses on the company’s credit card and failed to reimburse the company.  Daniels agreed to reimburse the company $3,218.06 for charges she made on the company’s credit card.  To that end, she returned a Rolex watch valued at over $2,000, paid the company $100, turned over a $220.75 payroll check, and made an $890 credit-card payment. 

            Daniels argues that she was not afforded a fair hearing because “the Unemployment Judge and the Commissioner’s Representative did not assist [her] in bringing out facts relevant to the case.”  Specifically, Daniels argues that the unemployment law judge failed to ask her whether anyone else would be participating in the telephonic hearing and whether she was physically and mentally able to proceed.  But neither the unemployment law judge nor the commissioner is charged with the responsibility of assisting applicants with the presentation of their case or of inquiring about an applicant’s physical and mental competency.  The unemployment law judge’s role is limited to taking all reasonable steps to ensure that the “relevant facts are clearly and fully developed.”  Minn. R. 3310.2921 (2001).  And the commissioner’s role is limited to determining the facts and weighing the witnesses’ credibility.  Manos v. First Bank of Minnehaha, 357 N.W.2d 372, 376 (Minn. App. 1984).  Daniels had the opportunity to participate fully in the telephonic hearing.  She was allowed to present evidence, and she questioned the employer’s witnesses.  Despite having the opportunity to do so, she never mentioned having a witness who was unable to participate in the hearing or being unable to participatein the hearing herself because of a mental or physical disability, as she now claims.

            Daniels next argues that the evidence is insufficient to support the determination that she intentionally overused vacation time or failed to reimburse the company for personal expenses.  Specifically, she argues that the record lacks “conclusive evidence” that she committed felony theft.  In support of her position, Daniels notes that she rescinded the separation agreement, and that Marty Carlson admitted not knowing how vacation time was calculated and knowing that Daniels paid for personal expenses each month. 

            The issue is not whether the record contains uncontroverted or “conclusive” evidence of misconduct, however, but whether the evidence reasonably supports the commissioner’s determination that Daniels committed aggravated employment misconduct.  Markel v. City of Circle Pines, 479 N.W.2d 382, 383-84 (Minn. 1992).  On review, we defer to the commissioner’s ability to weigh the evidence and make factual determinations.  Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995).  The Carlsons’s testimony, which the commissioner credited, amply supports the determination that Daniels committed felony theft by intentionally taking vacation hours she had not earned and by failing to reimburse the company for personal expenses charged on the company’s credit card beyond the authorized limit. 

            Because the preponderance of the evidence reasonably tends to support the commissioner’s determination that Daniels committed aggravated employment misconduct, we affirm.