This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-02-110

 

 

Rosetta D. Tatum,

Relator,

 

vs.

 

Kind Hearts, LLC,

Respondent,

 

Commissioner of Economic Security,

Respondent.

 

 

Filed July 2, 2002

Affirmed
Foley, Judge*

 

Department of Economic Security

File No. 949601

 

Jonathan Geffen, Southern Minnesota Regional Legal Services, Inc., 300 Minnesota Building, 46 East Fourth Street, St. Paul, MN  55101 (for relator)

 

Philip B. Byrne, Linda Holmes, Department of Economic Security, 390 North Robert Street, St. Paul, MN  55101 (for respondent commissioner)

 

            Considered and decided by Randall, Presiding Judge, Stoneburner, Judge, and Foley, Judge.

U N P U B L I S H E D   O P I N I O N

FOLEY, Judge

The commissioner’s representative determined that relator committed aggravated employment misconduct because she was involved in the theft and forgery of checks from her employer and was therefore disqualified from receiving benefits.  Relator contends that the decision was not reasonably supported by the evidence.  We affirm.

FACTS

             Relator Rosetta D. Tatum worked as a staffing coordinator for respondent Kind Hearts, LLC, a temporary staffing company that provides nursing personnel.  She was terminated on May 28, 2001, based on her alleged involvement in a check-cashing scheme. 

            Relator’s application for unemployment benefits was denied when it was determined that she was involved in the check-cashing scheme.  Relator sought review of that decision and, after a hearing, an unemployment law judge reversed the department’s denial of benefits, finding that relator was discharged for reasons other than employment misconduct. 

            Respondent employer appealed.  The commissioner’s representative found that a preponderance of the evidence showed that relator was involved in a theft and forgery of checks on the employer’s account amounting to $12,000, and concluded that relator was disqualified from receiving unemployment benefits because she was discharged for aggravated employment misconduct.  Realtor filed a petition for writ of certiorari to this court.           

D E C I S I O N

            Our review of the commissioner’s representative’s findings in economic security cases is narrow.  McGowan v. Executive Express Transp. Enters., 420 N.W.2d 592, 594 (Minn. 1988).  We will not disturb the findings of the commissioner’s representative when, viewed in the light most favorable to the decision, they are reasonably supported by the evidence.  Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996).  When witness credibility and conflicting evidence are at issue, we defer to the commissioner’s representative’s ability to weigh the evidence and make those determinations.  Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352-53 (Minn. App. 1995).

            Relator argues that the commissioner’s representative’s finding that she committed aggravated misconduct is not reasonably supported by the record and that the commissioner’s representative acted arbitrarily and capriciously in relying on the testimony presented by the employer because some of that testimony was “inconsistent.” She also argues that the unemployment law judge did not fulfill the obligations under Minn. R. 3310.2921 (2001) to ensure that the “relevant facts are clearly and fully developed,” and that the evidence did not constitute “substantial evidence” upon which the decision may be based under Minn. R. 3310.2922 (2001).

An applicant for unemployment benefits who engages in “aggravated employment misconduct” will be disqualified from receiving benefits.  Minn. Stat. §268.095, subd. 4(2) (2000).  “Aggravated employment misconduct” includes committing any act, on or off the job, which amounts to a gross misdemeanor or felony if the act interferes with or adversely affects the employment.  Minn. Stat. § 268.095, subd. 6a(1) (Supp. 2001). 

            Neither party contests that involvement in the check-cashing scheme alleged here would constitute aggravated employment misconduct.[1]  At issue here is whether the decision that relator was involved in that conduct is reasonably supported by the evidence.  See Schuenemann v. Radisson South Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997) (whether employee committed specific act alleged to be misconduct presents fact question). 

            When deciding a contested issue, the department of economic security’s decision must be based on “substantial evidence,” Minn. R. 3310.2922 (2001), and decided by the preponderance of the evidence.  Minn. Stat. § 268.03, subd. 2 (Supp. 2001).  “[A]ny evidence which possesses probative value, including hearsay, if it is the type of evidence on which reasonable, prudent persons are accustomed to rely in the conduct of their serious affairs” may be admitted in unemployment hearings.  Minn. R. 3310.2922 (2001).  Circumstantial evidence may be considered by factfinders.  See e.g., State v. Opsahl, 513 N.W.2d 249, 255 (Minn. 1994) (conviction based on sufficient evidence despite fact that all evidence was circumstantial). 

Here, the commissioner’s representative found that relator was involved in the check-cashing scheme.  The evidence presented at the hearing showed that relator had access to the stolen blank checks.  The checks were made out to current or former workers, all of whom denied receiving or cashing them.  Relator knew of all the employees to whom the checks were made out, and she had access to the signature stamp that was used in forging the checks.  The checks were cashed by people who did not provide identification to the store clerks who cashed them.  The clerks called respondent employer Kind Hearts to verify that the checks were valid.  Copies of 15 of the checks were entered into evidence, and 11 contained notations that they were “okayed” by relator.[2]  No check contained a notation that it was verified by any other Kind Hearts employee, although one contained a notation that the check-cashing cashier “called,” but provided no name of the verifier.  Testimony showed that the checks were in amounts larger than for the work time that the employees normally had put in to the employer.  Evidence showed that the checks were only cashed when relator worked on the employer’s phones.  There was no evidence that any other employee approved the identity of someone cashing one of the stolen checks.  The employer’s witness and documentation asserted that relator did not have authority to verify the checks and that she knew of that policy. 

Relator flatly denied any involvement in the scheme.  Thus, the matter is reduced to a credibility determination, which we cannot reverse in light of the evidence in the record that reasonably supports the commissioner’s representative’s finding.  On review, relator argues that the commissioner’s representative unjustifiably relied on hearsay evidence, the allegedly inconsistent testimony of the employer’s witness, allegedly inconsistent documentary evidence, and circumstantial evidence.  Relator’s arguments thus deal with the weight of the evidence, not its sufficiency.  Appellate courts do not reweigh the evidence, but only assess its sufficiency.  We are convinced the evidence here is sufficient to reasonably support the finding that relator was involved in the check-cashing scheme.

            In light of the foregoing evidence, we reject relator’s argument that the record was not fully developed.  Because we affirm the commissioner’s representative’s decision that relator committed aggravated employment misconduct and because the commissioner’s representative did not address that issue, we do not reach respondent’s argument that relator also committed employment misconduct. 

            Affirmed.