C5-99-1450

Kenneth L. Evins,

Relator,

vs.

Freedom Place, Inc.,

Respondent,

Commissioner of Economic Security,

Respondent.

Filed April 25, 2000

Affirmed

Kalitowski, Judge

Department of Economic Security

File No. 3430UC99

Peter B. Knapp, Pamela A. Steckman, Certified Student Attorney, William Mitchell Law Clinic, 875 Summit Avenue, St. Paul, MN 55105 (for relator)

Freedom Place, Inc., 2630 Cedar Avenue South, Minneapolis, MN 55407 (respondent)

Kent E. Todd, 390 North Robert Street, St. Paul, MN 55101 (for respondent Commissioner of Economic Security)

Considered and decided by Halbrooks, Presiding Judge, Kalitowski, Judge, and Willis, Judge.

U N P U B L I S H E D O P I N I O N

KALITOWSKI, Judge

Relator Kenneth L. Evins challenges the decision of the representative of the Commissioner of Economic Security that relator was not entitled to reemployment benefits because he was discharged from employment for misconduct. We affirm.

D E C I S I O N

An employee discharged for misconduct is disqualified from receiving reemployment compensation. Minn. Stat. § 268.095, subd. 4(1) (Supp. 1999). Whether an employee has 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). The factual findings of the commissioner’s representative must “be viewed in the light most favorable to the decision, and if there is evidence reasonably tending to sustain them, they will not be disturbed.” White v. Metropolitan Med. Ctr., 332 N.W.2d 25, 26 (Minn. 1983). Whether the findings support a determination of misconduct is a question of law, which an appellate court reviews independently. Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).

Misconduct is defined by statute as intentional conduct showing a disregard of

(1) the employer’s interest;

(2) the standards of behavior that an employer has the right to expect of the employee; or

(3) the employee’s duties and obligations to the employer.

Misconduct also includes negligent conduct by an employee demonstrating a substantial lack of concern for the employment. Inefficiency, inadvertence, simple unsatisfactory conduct, or poor performance as a result of inability or incapacity are not misconduct.

Minn. Stat. § 268.095, subd. 6 (1998).^[1]

An employee’s “knowing violation of an employer’s policies, rules, or reasonable requests constitutes misconduct.” Montgomery v. F & M Marquette Nat’l Bank, 384 N.W.2d 602, 604 (Minn. App. 1986), review denied (Minn. June 13, 1986). An employer has the right to expect an employee’s scrupulous adherence to procedure in handling money. McDonald v. PDQ, 341 N.W.2d 892, 893 (Minn. App. 1984).

Relator Kenneth L. Evins was employed by respondent Freedom Place, Inc. as a telephone fundraiser. Relator’s coworker, Joe Hays, raised funds for Freedom Place by canvassing neighborhoods. Neighborhood canvassers are paid bonuses if they achieve certain fundraising goals. On December 16, 1998, Hays asked relator if he could borrow five dollars and relator agreed to lend Hays the money. Hays allegedly used the five dollars to inflate his fundraising total in order to receive a larger bonus. Another employee overheard relator agree to loan Hays money and reported this to her supervisor, Mark Thisius. Thisius immediately terminated both relator and Hays for cheating and/or stealing.

The commissioner’s representative found that relator knew or should have known that Hays would use the money to inflate his bonus given relator’s knowledge of both the bonus structure and the fact that Hays had not yet turned in his receipts. This factual finding is reasonably supported by the evidence. Relator did not dispute that he loaned Hays five dollars. Relator also admitted he knew Hays had not turned in his receipts when the loan was made. While relator continues to claim he had no knowledge of Hays’s intent to cheat with the loan, the finding is supported by an affidavit signed by three other employees. The employees relayed a conversation between relator and Hays indicating that relator knew the loan was to assist Hays in obtaining undeserved bonus money.

Relator challenges the affidavit arguing that (1) the affidavit was drafted several months after the incident; (2) only one of the affiants testified at the hearing; (3) the affiant only testified about the conversation after he was prompted about the statements; and (4) the commissioner’s representative failed to consider a letter that was intended to impeach the credibility of the affiants. But the letter intended to impeach the employees was admitted into evidence and was before the commissioner’s representative. Moreover, relator’s complaints go to issues of credibility and this court defers to the commissioner’s credibility determinations. Seemann v. Little Crow Trucking, 412 N.W.2d 422, 426 (Minn. App. 1987).

Relator also argues that the commissioner’s representative should not have relied on Freedom Place’s exhibit that documented its bonus schedule because the schedule’s effective date was after relator’s termination. But relator told the reemployment insurance judge that he did not object to the admission of this document and relator does not contest the fact that neighborhood canvassers were paid bonuses depending on their receipts for their shift.

Finally, we conclude the factual findings of the commissioner’s representative support a determination of misconduct. Lending money to a coworker to assist in taking an undeserved bonus from the employer constitutes intentional conduct that shows a disregard of the employer’s interest.

II.

Relator also claims he did not receive proper notice of the issues at the hearing before the reemployment insurance judge. In seeking reemployment insurance benefits, an employee is protected by the procedural due process requirements of the Fourteenth Amendment. Schulte v. Transportation Unlimited, Inc., 354 N.W.2d 830, 832 (Minn. 1984). To be constitutionally sufficient, notice must communicate the interest at stake. Id. at 834.

Here, the notice of decision and right of appeal informed relator of the procedures for appealing and stated that the issue was “[w]hether the claimant was discharged because of misconduct that interfered with and adversely affected the employment.” In his decision, the commissioner’s representative phrased the issue as “whether the claimant knew or should have known that it was wrong to loan the $5.00 to his coworker.” We conclude there is no substantive difference in the issue as stated in the notice and as considered on appeal to the commissioner’s representative.

Relator also argues that he was not notified of the consequences of failing to develop a record before the reemployment insurance judge and that he was not informed of the burden of proof. We disagree. The record indicates the reemployment insurance judge told relator that “the testimony and other evidence received at this hearing will be used to decide your rights under Minnesota law.” The reemployment insurance judge prompted relator to develop a record by asking him if he had questions for the witnesses. The reemployment insurance judge also specifically informed relator that it was the employer’s burden to prove that the discharge was due to misconduct. We conclude the record reflects that relator was adequately informed of both the necessity of developing a record before the reemployment insurance judge and of the appropriate burden of proof.

Affirmed.

^[1] Effective August 1, 1999, statutory revisions to the reemployment insurance laws incorporate a different definition of misconduct. The 1998 statute was applied in this case because relator was terminated in December 1998.