This opinion will be unpublished and

may not be cited except as provided by

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







Maxine L. Clear,





W W II Inc.,



Commissioner of Employment and Economic Development,



Filed September 28, 2004


Willis, Judge


Department of Employment and Economic Development

File No. 16434 03


Maxine L. Clear, 909 Scheffer Avenue, Saint Paul, MN  55102-4011 (pro se relator)


W W II Inc., St. Paul Location, 678 Grand Avenue, Saint Paul, MN  55105-3402 (respondent)


Lee B. Nelson, Linda A. Holmes, Department of Employment and Economic Development, 390 Robert Street North, St. Paul, MN  55101 (for Commissioner)


            Considered and decided by Randall, Presiding Judge; Willis, Judge; and Minge, Judge.

U N P U B L I S H E D   O P I N I O N


Relator challenges the commissioner’s representative’s determination that she was discharged for employment misconduct, arguing that she quit with a good reason caused by her employer.  Because the record reasonably supports the representative’s decision, we affirm.



            From October 21, 1996, to September 5, 2003, relator Maxine Clear worked as a customer-service representative for respondent WW II Inc., which does business as White Way Cleaners.

            In August 2003, WW II Inc. conducted a random audit that showed evidence that Clear was stealing cash from the company.  WW II Inc. confronted Clear and offered her the opportunity to resign or be fired.  Clear resigned.

            A department adjudicator determined that Clear was discharged from employment for a reason other than employment misconduct and that she was therefore entitled to unemployment benefits.  WW II Inc. appealed, and an unemployment-law judge determined that Clear was discharged for employment misconduct.  The commissioner’s representative affirmed the unemployment-law judge, and Clear’s certiorari appeal follows.


            Whether an employee committed disqualifying misconduct is a mixed question of fact and law.  Colburn v. Pine Portage Madden Bros., Inc., 346 N.W.2d 159, 161 (Minn. 1984).  Whether the employee committed a particular act is a question of fact, which we review for clear error.  Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  Whether the act constitutes misconduct is a question of law, which we review de novo.  Id.

            Clear argues that the commissioner’s representative erred by concluding that she was discharged for employment misconduct.  Employment misconduct is “any intentional, negligent, or indifferent conduct, on the job or off the job . . . that evinces a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee.”  Minn. Stat. §  268.095, subd. 6(a) (Supp. 2003).

            The commissioner’s representative found that:  (1) WW II Inc. conducted a random audit in which it discovered that Clear’s customers had an incidence of discount-coupon usage that was significantly higher than would be expected; (2) almost all of the transactions to which Clear applied discount coupons were cash transactions; (3) approximately 25 percent of WW II Inc.’s sales are cash transactions; (4) Clear altered three transactions to make it appear that customers had used a coupon, thus entitling them to a discount, when they had not used a coupon; and (5) Clear stole the resulting difference in cash.

The commissioner’s representative determined that Clear was discharged for employment misconduct.  The record reasonably supports that determination.

Clear urges that we analyze this case as a quit rather than as a discharge, contending that she quit with a good reason caused by her employer and is thus entitled to unemployment benefits.  An employee is deemed to have “quit” employment “when the decision to end employment was, at the time the employment ended, the employee’s.”  Minn. Stat. §  268.095, subd. 2 (Supp. 2003).

            First, we are satisfied that if we were to analyze this case as a quit, we would still determine that Clear is not entitled to unemployment benefits.  Second, we conclude that on facts such as these, an employee cannot be found to have “quit,” as that term is defined in the statute.  When Clear resigned in the face of a resign-or-be-fired ultimatum, the decision to end the employment was not, when the employment ended, Clear’s.