C7-00-2204

Alfred A. Storm,

Relator,

vs.

APCOA/Standard, Inc.,

Respondent,

Commissioner of Economic Security,

Respondent.

Filed July 10, 2001

Reversed

Kalitowski, Judge

Department of Economic Security

File No. 625800

Elizabeth I. Goodpaster, Michael D. O’Neill, O’Neill, Grills & O’Neill, P.L.L.P., W1750 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101 (for relator)

APCOA/Standard, Inc., c/o Personnel Planners, Inc., 913 Van Buren N-3A, P.O. Box 803937, Chicago, IL 60680-3937 (respondent)

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

Considered and decided by Kalitowski, Presiding Judge, Harten, Judge, and Parker, Judge.*

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

KALITOWSKI, Judge

Relator Alfred A. Storm challenges the denial of unemployment insurance benefits, arguing that: (1) the evidence did not support the commissioner’s findings; and (2) the reason for his discharge did not rise to the level of misconduct. We reverse.

D E C I S I O N

The commissioner’s representative found that relator’s termination was for misconduct because his employer warned him that magazines with sexual content would not be tolerated on the premises yet he “knowingly permitted inappropriate sexually explicit material to be kept within the workplace.”

An employee discharged for misconduct is disqualified from receiving unemployment benefits. Minn. Stat. § 268.095, subd. 4(1) (2000). Whether an employee’s acts constitute misconduct is a question of law upon which reviewing courts remain free to exercise their independent judgment. Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).

Minnesota law 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.

Minn. Stat. § 268.095, subd. 6(a) (2000). But employment misconduct is not

[i]nefficiency, inadvertence, simple unsatisfactory conduct, [or] poor performance because of inability or incapacity * * *.

Minn. Stat. § 268.095, subd. 6(b) (2000). “Where the circumstances do not overwhelmingly demonstrate that an employee’s [conduct is] deliberate, willful, or equally culpable, we may also examine the employee’s history, conduct, and underlying attitude.” McCourtney v. Imprimis Tech., Inc., 465 N.W.2d 721, 725 (Minn. App. 1991).

Here, the representative of the commissioner found that relator was orally warned that magazines with adult content were not permitted at work. Although relator denies receiving a warning and contends that the evidence of the oral warning was not credible because it came through “coached” testimony, we defer to the credibility determination of the commissioner’s representative.

Relator was subsequently fired when magazines with adult content were found in his work area while he was on vacation. The commissioner’s representative did not find that the objectionable materials belonged to relator. In addition, relator denied ownership of the magazines and stated that while he knew they were in a drawer in a cabinet in a locked room,

[t]hey didn’t offend me, I, I didn’t care about them, they weren’t mine. I mean they were in a drawer, in a filing cabinet, I just forgot all about them.

Moreover, the undisputed evidence indicates relator was a nonsupervisory employee who was not responsible for the conduct of other employees or for maintaining the common work premises.

Finally, the record indicates that relator had worked for his employer for over 17 years with no documented work violations and was considered a good worker. On these facts, we conclude that relator’s culpability did not rise to the level of the intentional conduct necessary to disqualify him from receiving unemployment benefits.

Reversed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.