This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
Adrienne M. Wuorinen,
Commissioner of Employment
and Economic Development,
Filed January 27, 2004
Minnesota Department of Employment
and Economic Development
Adrienne M. Wuorinen, 948 Portland Avenue, Apartment 3, St. Paul, Minnesota 55104-7034 (pro se respondent)
Julianne L. Emerson, Michael C. Mahoney, Mahoney & Emerson, Ltd., 415 Indian Mound East, Wayzata, Minnesota 55391 (for relator)
Lee B. Nelson, M. Kate Chaffee, Department of Employment and Economic Development, 390 North Robert Street, St. Paul, Minnesota 55101 (for respondent commissioner)
Considered and decided by Hudson, Presiding Judge; Peterson, Judge; and Harten, Judge.
U N P U B L I S H E D O P I N I O N
In this certiorari appeal from the commissioner’s representative’s finding that respondent is entitled to unemployment benefits, relator argues the commissioner’s representative failed to consider facts in the record that show respondent engaged in misconduct and contends respondent should be disqualified from unemployment benefits. Because the commissioner’s representative considered the facts presented in the record and because the record reasonably supports the commissioner’s representative’s findings, we affirm.
Respondent, Adrienne Wuorinen, was employed by relator, Louisa Johnsen, from January 28, 2002, through June 26, 2002, as a live-in nanny and housekeeper.
During the interview for the position, Wuorinen was informed that she must provide Johnsen with two months’ notice before quitting employment. On June 8, 2002, Wuorinen took her sister to the hospital for emergency surgery and told Johnsen she would be late to work. Upon arriving to work, Johnsen and Wuorinen had a heated discussion, after which Wuorinen gave Johnsen her two months’ notice of quitting.
On June 16, 2002, a day off for Wuorinen, she fell and was injured. She reported to work the next day, but was unable to perform some of her duties. The rest of the week Wuorinen was able to complete most of her duties, but was unable to lift heavy objects.
On June 25, 2002, Wuorinen and Johnsen had another argument, and Johnsen said Wuorinen should leave if she was so unhappy. Wuorinen reminded Johnsen that she had given her two-month notice on June 8, 2002. Wuorinen and Johnsen agreed that August 8, 2002, would be Wuorinen’s last day. On June 26, 2002, Johnsen notified Wuorinen that she was discharged effective that day and was expected to leave immediately. Wuorinen moved out the next day.
A department adjudicator initially determined Wuorinen quit without a good reason and was disqualified from receiving unemployment benefits. Wuorinen appealed, and, after a de novo hearing, a department unemployment law judge reversed the initial decision. Johnsen appealed, and the commissioner’s representative found Wuorinen was entitled to unemployment benefits because Johnsen discharged her for reasons other than employment misconduct. This certiorari appeal follows.
When reviewing the Minnesota Department of Employment and Economic Development’s determination regarding an employee’s qualifications for unemployment benefits, we review the commissioner’s representative’s findings rather than the unemployment law judge’s findings. Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995). We have a narrow standard of review that requires us to view the commissioner’s representative’s findings in the light most favorable to the decision. Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002). We will not disturb the commissioner’s representative’s findings if there is evidence that reasonably tends to sustain them. Id. We defer to the commissioner’s representative’s ability to weigh conflicting evidence. Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995).
The commissioner’s representative’s findings are a mixed question of law and facts. Colburn v. Pine Portage Madden Bros., Inc., 346 N.W.2d 159, 161 (Minn. 1984). The commissioner’s representative determines the fact question, which is whether the employee committed the alleged acts of misconduct. Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997). We review de novo whether the employee’s actions constituted employment misconduct and disqualified the employee from receiving unemployment benefits under Minn. Stat. § 268.095, subds. 4, 6 (2002). Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).
A. Facts Presented in the Record
Johnsen contends that the commissioner’s representative failed to consider facts in the record that show Wuorinen should have been disqualified from receiving unemployment benefits.
During the de novo hearing, Johnsen testified that she discharged Wuorinen because she was unable to perform her duties due to an injury and because Wuorinen criticized, “disrespected,” “libeled,” “slandered,” and “knock[ed] down” Johnsen. Johnsen also testified that Wuorinen was disrespectful and insulted Johnsen in front of Johnsen’s children. Johnsen’s allegations, however, were largely devoid of any specific examples of particular conduct. Furthermore, there was no evidence that Wuorinen failed to complete her work duties, except to a limited degree when she was injured in the last week of her employment. We also note that the department unemployment law judge properly refused to admit evidence of statements Wuorinen made about Johnsen after Wuorinen’s termination.
Although the commissioner’s representative did not include Johnsen’s testimony in the ultimate findings, the record indicates that the commissioner’s representative did consider Johnsen’s testimony, but simply found Wuorinen’s testimony more credible. Thus, the commissioner’s representative noted Wuorinen “provided believable testimony [that] she did not deliberately disregard her duties or intentionally created a hostile work environment.” The commissioner’s representative also noted “we are not persuaded Wuorinen’s conduct evinced an intentional disregard of her duties and obligations to her employer or a lack of concern for her employment.” The commissioner’s representative considered the conflicting testimony of both parties, and determined that Johnsen’s allegations were not credible. See Whitehead, 529 N.W.2d at 352 (noting this court defers to the commissioner’s representative’s ability to weigh conflicting evidence). We will not disturb that determination.
B. Alleged Misconduct
Johnsen also contends that Wuorinen committed misconduct pursuant to Minn. Stat. § 268.095, subd. 6(a) (2002), and interpreted by Houston v. Int’l Data Transfer Corp., 645 N.W.2d 144, 149-50 (Minn. 2002).
Minn. Stat. § 268.095, subd. 6(a), defines employment misconduct as:
(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.
In Houston, the Minnesota Supreme Court determined that “to constitute employment misconduct, [the employee’s] conduct must (1) be intentional and (2) disregard standards of behavior the employer has a right to expect or the employee’s duties and obligations to the employer.” Houston, 645 N.W.2d at 149. Thus, the Houston analysis for employment misconduct requires that “the employee not only engaged in intentional conduct, but also intended to, or engaged in conduct that evinced an intent to, ignore or pay no attention to his or her duties and obligations or the standards of behavior the employer has a right to expect.” Id. at 150.
All of the evidence of Wuorinen’s alleged misconduct stems from Johnsen’s testimony. But, again, the commissioner’s representative considered the conflicting testimony of both parties, and determined that Johnsen’s allegations were not credible. Whitehead, 529 N.W.2d at 352 (noting this court defers to the commissioner’s representative’s ability to weigh conflicting evidence). Moreover, as the commissioner notes in its brief, the reliability of Johnsen’s testimony is undercut by the fact that Johnsen took no steps to discharge Wuorinen prior to Wuorinen giving notice to quit; nor did Johnsen ever inform Wuorinen that her work was unsatisfactory. On this record, we see no basis for disturbing the commissioner’s representative’s decision.
 The allegedly derogatory statements were made by Wuorinen in a deposition conducted in connection with a contentious dissolution and custody battle between Johnsen and her former spouse.
 This incident occurred prior to the revisions to the statute, therefore the definition of misconduct in the 2002 version of the statute as discussed in Houston is applicable in this case.