Melissa A. Hayden, Relator, vs. Ridgedale Automotive, Inc., Respondent, Commissioner of Employment and Economic Development, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-33

 

Melissa A. Hayden,

Relator,

 

vs.

 

Ridgedale Automotive, Inc.,

Respondent,

 

Commissioner of Employment and Economic Development,

Respondent.

 

Filed August 3, 2004

Affirmed

Kalitowski, Judge

 

Department of Employment and Economic Development

File No. 10281 03

 

Melissa A. Hayden, P.O. Box 44552, Eden Prairie, MN 55344 (pro se relator)

 

Andrew J. Voss, Littler Mendelson, P.C., 33 South Sixth Street, Suite 3110, Minneapolis, MN 55402-3716 (for respondent Ridgedale Automotive)

 

Lee B. Nelson, Linda A. Holmes, Department of Employment and Economic Development, 390 North Robert Street North, St. Paul, MN 55101 (for respondent Commissioner of Employment and Economic Development)

 

            Considered and decided by Wright, Presiding Judge; Kalitowski, 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 Melissa Hayden challenges the determination of the representative of the Commissioner of Employment and Economic Security that she is disqualified from receiving unemployment benefits because she committed employment misconduct.  We affirm.

D E C I S I O N

 

An individual who is discharged for misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4(1) (2002).  Whether an employee committed the alleged misconduct is a question of fact.  Tilseth v. Midwest Lumber Co., 295 Minn. 372, 374-75, 204 N.W.2d 644, 645-46 (1973).  Appellate courts review the commissioner's factual findings in the light most favorable to the commissioner's decision and will not disturb them as long as there is evidence that reasonably tends to sustain those findings.  Schmidgall v. Filmtec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  But whether an employee's acts constitute misconduct is a question of law, which appellate courts review de novo.  Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).  

Here, the commissioner's representative found that relator engaged in employment misconduct by using a company vehicle without permission.  Relator does not dispute that taking a company vehicle without permission constitutes employment misconduct.  Instead, relator argues that her employer gave her permission to use the vehicle.  Relator testified that after she and her supervisor discussed her sales and goals in the early evening, she asked if she could borrow a company vehicle and her supervisor told her she could.  But the supervisor testified that he never gave relator permission to use a company vehicle and denied that such a conversation ever occurred.  The commissioner's representative credited the supervisor's testimony.  And we must defer to the commissioner's representative's ability to weigh the evidence and make credibility determinations.  See Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995).  Therefore, we cannot say that the commissioner's representative erred in finding that relator engaged in employment misconduct by using a company vehicle without permission.

Affirmed.

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