This opinion will be unpublished and

may not be cited except as provided by

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






David A. Carlson,


US Federal Employees,
Commissioner of Employment and Economic Development,


Filed May 11, 2004


Stoneburner, Judge


Commissioner of Employment and Economic Development

File No. 7174 03


David Carlson, 9245 Hale Avenue South, Cottage Grove, MN 55016 (pro se relator)


Lee B. Nelson, M. Kate Chaffee, Department of Employment and Economic Development, 390 North Robert Street, St. Paul, MN 55101 (for respondent commissioner)


US Federal Employees, 2825 Lone Oak Parkway, Eagan, MN 55121-1551 (respondent employer)


            Considered and decided by Hudson, Presiding Judge; Anderson, Judge; and Stoneburner, Judge.


U N P U B L I S H E D  O P I N I O N




Relator challenges the decision by the commissioner’s representative that he is not qualified to receive unemployment-compensation benefits because he was discharged for misconduct.  We affirm.



            Relator David A. Carlson was employed by the United States Postal Service (USPS) as a postal carrier for 17 years.  The rules of conduct for Postal Service employees provide, in part, that employees must not throw away or improperly dispose of mail.  The code of conduct applicable to Carlson also states that “[e]mployees must avoid any action, whether or not specifically prohibited by this Code, which might result in or create the appearance of . . . [a]ffecting adversely the confidence of the public in the integrity of  the Postal Service.”  Carlson admitted that he was aware of these policies and regulations.

            Carlson was terminated from his employment after he allegedly threw away 214 pieces of bulk mail that he was responsible for delivering, by double bagging the mail in white plastic garbage bags and placing them in a trash can in the kitchen of the rental office of Carver Lake Townhomes, one of the delivery addresses on Carlson’s route.

            The property manager for Carver Lake Townhomes observed Carlson park his postal vehicle in the parking lot of the complex and walk into the rental office carrying a bundle of mail and a water bottle.  She wondered why Carlson was carrying a bundle of mail because he had already delivered the mail to the complex earlier in the day.  She saw Carlson leave again after about five minutes, carrying only his water bottle.  When she went to investigate, she discovered a bundle of mail in the rental office kitchen, in the garbage can beneath the sink, double bagged in white plastic garbage bags like those stored near the garbage can.

            The property manager reported her observations of Carlson’s actions to the acting manager of the Woodbury branch office of the Postal Service and turned the bag of mail over to him.  He confirmed that the mail was intended for recipients on Carlson’s route and immediately contacted postal inspector Tom Cudahy.  Mr. Cudahy inspected the mail and garbage bag and interviewed the witness to Carlson’s actions by telephone, in order to confirm the report.

            Mr. Cudahy also interviewed Carlson in person.  Carlson admitted to him that he had stopped at the apartment complex in question, but said that he had no explanation for how the mail had gotten into the trash.  Carlson alleges that when he stopped to take a break from the heat and to clean and organize his vehicle, that he must have inadvertently included the bulk mail with the trash he threw away. 

            Carlson was suspended from his position pending the outcome of the investigation.  Carlson and his union steward met with postal service management for a hearing on the matter.  After the hearing, the postal service, having found Carlson’s assertions that he threw the mail away inadvertently not credible, discharged him for intentionally throwing away mail entrusted to his care.  

            After Carlson’s employment was terminated, he applied for unemployment benefits.  The Minnesota Department of Employment and Economic Development determined that Carlson was qualified to receive benefits.  The USPS contested the determination.  After an evidentiary hearing, a department unemployment law judge reversed, deciding that Carlson had been discharged for employment misconduct and was disqualified from receiving unemployment benefits.  Carlson appealed to the Commissioner of Employment and Economic Development.  The commissioner’s representative affirmed that Carlson is not entitled to unemployment benefits because he was discharged for employment misconduct.  This certiorari appeal followed.



The scope of review in an economic-security case is narrow.  Where there is evidence reasonably tending to support the findings of a commissioner’s representative, this court will not disturb them.  Kalberg v. Park & Recreation Bd. of Minneapolis, 563 N.W.2d 275, 276 (Minn. App. 1997).  We review the factual findings of the commissioner’s representative in a light most favorable to the decision, and we leave that determination intact so long as the record reasonably supports the factual findings.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002). 

An employee discharged for misconduct is disqualified from receiving unemployment benefits.  Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  Whether an employee committed a specific act of misconduct is a question of fact.  Id.  Whether an employee committed misconduct that disqualifies a person from eligibility for unemployment benefits is a mixed question of law and fact.  Colburn v. Pine Portage Madden Bros., Inc., 346 N.W.2d 159, 161 (Minn. 1984).  Whether a specific act constitutes misconduct is a question of law reviewed de novo.  Schmidgall, 644 N.W.2d at 804.  Generally, an employee commits misconduct by refusing to comply with an employer’s reasonable requests and/or policies.  See McGowan v. Executive Express Transp. Enters., Inc., 420 N.W.2d 592, 596 (Minn. 1988).

Disqualifying misconduct is defined by statute 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.


Minn. Stat. § 268.095, subd. 6(a) (2002).[1]

The Minnesota Supreme Court has articulated a two-prong test to determine whether an employee’s actions constitute employment misconduct under Minn. Stat. § 268.095, subd. 6(a)(1).  Houston v. Int’l Data Transfer Corp., 645 N.W.2d 144, 149 (Minn. 2002).  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.”  Id.  Under the first prong, intentional conduct requires a “deliberate” act that is “not accidental.”  Id.  Under the second prong, the term “disregard” includes “intent that is separate and distinct from the intent to engage in the conduct in question.”  Id. at 150.  Therefore, to satisfy the Houston test, the employee must have “not only engaged in intentional conduct,” but must have also evidenced 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.

            The Postal Service had clearly-stated policies and standards for expected employee conduct which governed Carlson’s employment, and Carlson was aware of these policies.  By disposing of mail intended for delivery, Carlson violated these policies.  But Carlson argues that his conduct was inadvertent, that it resulted from the effects of heat and strain, and that it therefore cannot be classified as employment misconduct. 

            The commissioner’s representative found that Carlson “intentionally threw some bulk mail, which he was responsible for delivering, in the trash of one of the customers on his route.”  The representative further determined that Carlson “did not have a compelling reason for throwing the mail in the trash.”  After hearing testimony from both Carlson and the USPS, the commissioner’s representative found the “testimony presented by the USPS to be more credible than Carlson’s evidence to the contrary.” 

The record contains testimony by the customer service supervisor for the Woodbury post office, who stated that when he informed Carlson that he had been accused of throwing away mail, Carlson “did not deny it.”  He suggested that he had been affected by the heat, but he “really did not deny that he had thrown away the mail.”  The record further contains evidence that, despite his claims that the effect of heat led him to “inadvertently” throw away mail, Carlson did not seek medical treatment for heat-related problems, or report any heat-related problems to his supervisors.  Carlson admitted that after throwing away the mail, he continued on his route and delivered mail to more than 200 additional customers without difficulty.  The next day he made no effort to determine what had happened to the bulk mail.  The record supports the conclusion reached by the commissioner’s representative that Carlson deliberately threw away the mail.  Carlson’s actions intentionally disregarded the standard the postal service had the right to expect, and therefore constituted misconduct. 



[1] Minn. Stat. § 268.095, subd. 6(a) (2002) has been amended.  2003 Minn. Laws 1st Spec. Sess. ch. 3, art. 2, § 13.  The new definition of employment misconduct, effective August 1, 2003, is “any intentional, negligent, or indifferent conduct, on the job or off the job (1) that evinces a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee, or (2) that demonstrates a substantial lack of concern for the employment.”  Id. (amending Minn. Stat. § 268.095, subd. 6(a)(2002)); Minn. Stat. § 645.02 (2002) (providing laws effective August 1 of year enacted unless otherwise specified).