Eric T. Koll, Relator, vs. Owens Services Corporation, 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This opinion will be unpublished and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

A04-164

Eric T. Koll,

Relator,

vs.

Owens Services Corporation,

Respondent,

Commissioner of Employment and Economic Development,

Respondent.

Filed August 24, 2004

Affirmed

Lansing, Judge

Department of Employment and Economic Development

File No. 14681 03

Eric T. Koll, 14474 Alabama Avenue South, Savage, MN 55378-2859 (pro se relator)

Owens Services Corporation, 930 East 80th Street, Bloomington, MN 55420-1322 (respondent)

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

            Considered and decided by Lansing, Presiding Judge; Harten, Judge; and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            Eric Koll challenges the decision by the commissioner's representative that he was disqualified from receiving unemployment benefits because he was discharged for misconduct for falsifying his time sheets.  Koll argues that the finding that he falsified his time sheet was erroneous.  Because the decision of the commissioner's representative is reasonably sustained by evidence in the record, we affirm.

F A C T S

            Owens Services Corporation discharged Eric Koll for allegedly falsifying records for the amount of time worked.  Koll was employed by Owens from 1999 to 2003 as a sheet-metal worker, and immediately prior to his termination he had worked on a project at the Prairie Island nuclear facility.  As part of his daily routine, Koll commuted to and from the facility and passed through security at Prairie Island. 

Koll contends that he was entitled to report his travel time, time spent in the Owens shop, time spent moving through security, and time spent transporting materials from his vehicle to the job site; in other words, time spent within the Prairie Island facility was not the only time for which he was to be compensated.  Owens's allegations are based largely on discrepancies between Koll's time sheets and records of his presence at Prairie Island as provided by security records.  In addition, Owens provided a letter from Koll's supervisor stating that Koll had admitted to "cheating on his hours."

Following his termination, Koll applied for unemployment benefits.  The initial decision by a department of employment and economic development adjudicator found that Koll had been discharged for employment misconduct because he falsely reported his work hours and disqualified him from receiving benefits.  Koll appealed this decision to an unemployment law judge who found after a hearing that Koll was discharged for reasons other than employment misconduct and reversed the disqualification, noting specifically that Koll's testimony was "more credible" than that of his employer. 

Owens appealed the unemployment law judge's decision to a representative of the commissioner of the department of employment and economic development.  The commissioner's representative found that Koll intentionally over-reported his hours of work on his time sheets and was thus disqualified from the payment of unemployment benefits because of employment misconduct.  Koll appeals by certiorari the decision of the commissioner's representative.

D E C I S I O N

            On appeal, we view the factual findings generated by the commissioner's representative in a light most favorable to the decision, and we will not disturb them when there is "evidence that reasonably tends to sustain those findings."  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  We review the factual findings of the commissioner's representative, not those of the unemployment law judge, "even though those findings might involve credibility."  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  We defer to the factual determinations of the commissioner's representative if they are reasonably supported in the record.  Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996).

            Koll does not dispute that falsifying one's time sheets constitutes employment misconduct.  Rather, he argues that he did not falsify his time sheets and that the discrepancies alleged by Owens can be explained by duties required of him that could not be documented by review of the Prairie Island security records.  In his appellate brief, Koll submits a list of the days for which the commissioner's representative found discrepancies and a thorough explanation of his work hours on those days.

            Koll's rendition of the facts is plausible.  But a commissioner's representative's determination that an employee committed a particular act or a series of acts is a question of fact.  Tilseth v. Midwest Lumber Co., 295 Minn. 372, 374, 204 N.W.2d 644, 645-46 (1973).  "When the parties have presented conflicting evidence on the record, this court must defer to the [c]ommissioner's ability to weigh the evidence."  Whitehead. v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995).  This deference extends to the commissioner's representative's credibility determination.  Lolling, 545 N.W.2d at 377.  The commissioner's representative found that "Koll's testimony about the time he spent in the shop, in transit to and from the work site, and the security check in process does not credibly account for the significant discrepancies on several of the days in question."  Because the finding is fundamentally a credibility determination, we must defer to that finding and affirm the decision of the commissioner's representative.

            Affirmed.