This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1207

 

Nicole Van Ness,
Relator,

vs.

Minnehaha Lanes,
Respondent,

Commissioner of Employment and Economic Development,
Respondent.

 

Filed March 15, 2005

Affirmed

Wright, Judge

 

Minnesota Department of Employment and Economic Development

File No. 17105 03

 

 

Donald H. Nichols, Michele R. Fisher; Nichols Kaster & Anderson, PLLP, 4644 IDS Center, 80 South Eighth Street, Minneapolis, MN  55402 (for relator)

 

Mark A. Greenman, Greenman & Ostrom, 270 Grain Exchange North, 301 Fourth Avenue South, Minneapolis, MN  55415 (for respondent Minnehaha Lanes)

 

Lee B. Nelson, Linda A. Holmes; Department of Employment and Economic Security, E200 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101 (for respondent Commissioner)

 

 

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

U N P U B L I S H E D  O P I N I O N

 

WRIGHT, Judge

 

Relator challenges the decision of the commissioner’s representative that she is disqualified from receiving unemployment benefits because she was discharged for employment misconduct.  We affirm.

FACTS

 

            Minnehaha Lanes employed relator Nicole Van Ness as a bartender from August 2001 to September 2003.  During Van Ness’s shift on August 30, 2003, an off-duty employee came into the bar area of Minnehaha Lanes.  After serving the off-duty employee several alcoholic beverages, Van Ness made a bet with the off-duty employee, which required him to consume five shots of liquor within one hour without becoming sick.  After the off-duty employee became sick, Van Ness continued to serve alcoholic beverages to the off-duty employee.  The off-duty employee later assaulted Van Ness, causing injuries that required medical attention. On September 9, 2003, Minnehaha Lanes discharged both Van Ness and the off-duty employee. 

            Van Ness applied for unemployment benefits.  At the hearing before an unemployment law judge, the general manager for Minnehaha Lanes testified that Van Ness was discharged for serving alcohol to an obviously intoxicated person, in violation of Minnehaha Lanes’ policy and Minnesota law.  Although Van Ness had received training to recognize intoxication, the manager testified, she continued to serve alcohol to the off-duty employee after he showed multiple signs of intoxication.  Van Ness testified that she was fired because of a pending assault charge against the off-duty employee and that she was told that Minnehaha Lanes would consider rehiring her if she dropped the charges. 

The unemployment law judge found Van Ness’s testimony credible and concluded that Van Ness was discharged for reasons other than employment misconduct.  Minnehaha Lanes appealed to the commissioner’s representative.  On review, the commissioner’s representative reversed.  The commissioner’s representative determined that Van Ness’s actions constituted both disqualifying employment misconduct and aggravated employment misconduct.  Finding that Van Ness’s actions constituted a violation of Minn. Stat. § 340A.502 (2002), which prohibits furnishing alcoholic beverages to an obviously intoxicated person, the commissioner’s representative concluded that Van Ness was terminated for aggravated employment misconduct.  This certiorari appeal followed.

D E C I S I O N

We review the findings of the commissioner’s representative rather than those of the unemployment law judge.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  In doing so, we view the factual findings in the light most favorable to the decision, Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989), giving deference to the credibility determinations made by the commissioner’s representative, Gradine v. Coll. of St. Scholastica, 426 N.W.2d 459, 462 (Minn. App. 1988), review denied (Minn. Aug. 24, 1988).  When the evidence reasonably sustains the findings, they will not be disturbed.  Ress, 448 N.W.2d at 523.

As an initial matter, we address Van Ness’s argument that the commissioner’s representative erroneously relied on hearsay evidence as to the reason for Van Ness’s termination.  Specifically, she challenges the admission and reliance on testimony of the general manager that Van Ness was discharged because she furnished alcohol to an intoxicated person.  Although, in making his decision, the general manager relied on the statements of several employees who witnessed the incident, many of these employees testified at the hearing in this proceeding. 

We note that the commissioner’s representative is not bound by statutory and common-law rules of evidence.  Minn. Stat. § 268.105, subd. 2(b) (2002).  Indeed, the commissioner’s representative may receive any evidence that possesses probative value, including hearsay.  Minn. R. 3310.2922 (2003).  Hearsay evidence alone may provide a sufficient basis for the decision of the commissioner’s representative, provided the decision is supported by a preponderance of the evidence.  Vang v. A-1 Maint. Serv., 376 N.W.2d 479, 482 (Minn. App. 1985); see also Minn. Stat. § 268.03, subd. 2 (2002).  Moreover, the decision as to whether Van Ness committed employment misconduct was based on the testimony of witnesses who observed the condition of the off-duty employee when Van Ness furnished him alcohol, which is not hearsay.  Thus, Van Ness’s argument is not well founded.  

Van Ness also argues that, because she did not commit employment misconduct, she is not disqualified from receiving unemployment benefits.  An employee who is discharged for employment misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4(1) (Supp. 2003).[1]  Employment misconduct is “any intentional, negligent, or indifferent conduct . . . (1) that displays clearly a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee, or (2) that displays clearly a substantial lack of concern for the employment.”  Minn. Stat. § 268.095, subd. 6(a) (Supp. 2003).  But “[i]nefficiency, inadvertence, simple unsatisfactory conduct, . . . a single incident that does not have a significant adverse impact on the employer, . . . good faith errors in judgment if judgment was required . . . are not employment misconduct.”  Id.  “Aggravated employment misconduct” means “the commission of any act, on the job or off the job, that would amount to a gross misdemeanor . . . if the act substantially interfered with the employment or had a significant adverse effect on the employment.”  Minn. Stat. § 268.095, subd. 6a(1) (2002). 

Whether an employee committed employment misconduct is a mixed question of law and fact.  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 employment misconduct is a question of law, which we review de novo.  Ress, 448 N.W.2d at 523.

Van Ness contests the finding of the commissioner’s representative that she served the off-duty employee after he showed signs of intoxication.  But the record contains ample support for this finding.  Indeed, the only evidence that is inconsistent with the findings of the commissioner’s representative is the testimony of Van Ness, which the commissioner’s representative determined to lack credibility.  Credibility determinations are the province of the commissioner’s representative and will not be disturbed on review.  Gradine, 426 N.W.2d at 462-63.  When the evidence is viewed in the light most favorable to the decision of the commissioner’s representative, the record establishes that Van Ness not only continued to serve alcoholic beverages to the off-duty employee after he exhibited signs of intoxication, but also challenged the off-duty employee to drink five shots of liquor.  Thus, the record reasonably supports the finding of the commissioner’s representative.

Van Ness next contends that, even if the factual findings are not clearly erroneous, her actions of serving alcohol to an intoxicated person were inadvertent and, therefore, not employment misconduct.  We disagree.  The commissioner’s representative found that Van Ness engaged the off-duty employee in a wager, thus encouraging him to drink five shots of liquor, and continued to serve him after he became sick and exhibited other signs of intoxication.  The commissioner’s representative noted that Minnesota law prohibits furnishing alcoholic beverages to an obviously intoxicated person.  Minn. Stat. § 340A.502 (2002).  Such conduct is punishable as a gross misdemeanor.  Id.  And according to the general manager, Minnehaha Lanes has a policy against serving alcohol to an obviously intoxicated person.  Moreover, Van Ness had undergone state-recommended training on “how to recognize somebody who [is] intoxicated” and “how best to cut people off.”    

In light of Van Ness’s training and the evidence regarding the off-duty employee’s condition, the commissioner’s representative did not err in rejecting Van Ness’s claim of inadvertence and concluding that Van Ness committed both employment misconduct and aggravated employment misconduct.  Accordingly, we affirm the decision of the commissioner’s representative that Van Ness is disqualified from receiving unemployment benefits because she was terminated for aggravated employment misconduct.

            Affirmed.