Super 8 Motel, Frederick Partnership, Rural Route 7, Box 390, Mankato, MN 56001 (respondent)

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

Considered and decided by Amundson, Presiding Judge, Crippen, Judge, and Schumacher, Judge.

Relator Peggy J. Niederer appeals from the decision of the Department of Economic Security, arguing the commissioner's representative erred in determining that Niederer was disqualified from receiving reemployment insurance benefits because she was terminated for misconduct. We reverse.

The Department of Economic Security awarded Niederer reemployment insurance benefits, and a reemployment insurance judge affirmed. The commissioner's representative reversed, concluding Niederer had been terminated for misconduct. Niederer appeals.

"is limited to conduct evincing such willful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer."

In re Tilseth, 295 Minn. 372, 374-75, 204 N.W.2d 644, 646 (1973) (quoting Boynton Cab Co. v. Neubeck, 296 N.W. 636, 640 (Wis. 1941)).

The employer in a reemployment insurance case bears the burden of proving, by the greater weight of the evidence, that the employee committed misconduct. Lumpkin v. North Central Airlines, Inc., 296 Minn. 456, 459, 209 N.W.2d 397, 400 (1973) (citations omitted). Whether an employee has committed misconduct is a question of law. Cook v. Playworks, 541 N.W.2d 366, 368 (Minn. App. 1996) (whether findings support determination of misconduct is question of law subject to de novo review).

The record shows that Neiderer demanded to know the reason for the termination and Super 8 wrote that it was because she "could not perform the job properly." Super 8's manager could not explain why Super 8's letter differed from its response to the Department of Economic Security where it indicated that Niederer was fired for misconduct. A typed letter by Ulrich relating the incident of March 25, 1997, was drafted on April 1, 1997. This, however, was after Niederer received Super 8's written reason for her termination and after she filed for reemployment insurance benefits. Super 8's manager testified the letter was "put together" at the Super 8 owner's downtown office. The letter was addressed "To Whom It May Concern." Super 8's manager testified Ulrich also prepared a memorandum on March 25 but that he did not bring it to the hearing.

On this record, accepting the facts as found by the commissioner's representative, we conclude those facts do not constitute misconduct as a matter of law. We note Niederer denied telling Ulrich the motel was full, Super 8 did not inform her she was fired for misconduct, Ulrich's letter concerning the incident was drafted after Niederer applied for reemployment insurance benefits, and no reason or motive was proffered as to why she would tell Ulrich the motel was full.

Reversed.