This opinion will be unpublished and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

C0-01-238

 

Scott R. Elsner,
Relator,

vs.

Jeff Belzer’s Chevrolet Dodge Geo, Inc.,
Respondent,

Commissioner of Economic Security,
Respondent.

 

Filed September 18, 2001

Affirmed

Crippen, Judge

 

Department of Economic Security

File No. 875800

 

Scott R. Elsner, 20460 Howland Avenue West, Lakeville, MN 55044 (pro se relator)

 

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

 

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

U N P U B L I S H E D   O P I N I O N

 

CRIPPEN, Judge

            Relator Scott Elsner contends that the commissioner’s representative erred in concluding that relator “was discharged due to employment misconduct” and disqualified from receiving unemployment benefits.  Because we view the evidence in the light most favorable to the commissioner’s findings and credibility determinations, and because the evidence supports those findings, we affirm.

FACTS

 

In September 2000, respondent Jeff Belzer’s Chevrolet Dodge Geo, Inc., discharged relator Scott Elsner, a car salesman, for violating the company’s conflict-of-interest policy by privately selling cars out of his own home.  The record contains a statement signed by two other employees that relator told them he made money selling cars from his home, and one of the employees also stated that relator showed him a check from one of those sales.  The commissioner of economic security’s representative reversed the unemployment compensation judge’s determination to award unemployment benefits to relator.  The representative found that relator committed disqualifying misconduct after having “received several warnings during the course of his employment” that “inappropriate conduct could lead to suspension or to discharge.”

D E C I S I O N

 

An employee who is discharged for misconduct is disqualified from receiving unemployment-insurance benefits.  Minn. Stat. § 268.095, subd. 4(1) (2000).  Whether the employee committed a particular act is a question of fact.  Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  We are to view the factual findings by the commissioner’s representative “in the light most favorable to the decision” and must uphold the decision on appeal if the record contains evidence that reasonably supports the findings.  McGowan v. Executive Express Transp. Enters., 420 N.W.2d 592, 594 (Minn. 1988).  Where credibility is at issue, “this court must defer to the Commissioner’s ability to weigh the evidence.”  Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995) (citation omitted).

In this case, the employer terminated relator because he violated the conflict-of-interest policy but considered previous unrelated incidents of misconduct in its decision.  Relator denied selling cars from his home and contends that the employer harassed him to make him quit.  Relator further observes: 

I also don’t understand why after three other decisions went my way I was reversed on this last one? How many more times can this appeal? Hopefully you see it my way and this will be the last appeal.

 

Relator’s chagrin is understandable, especially where the evidence against him was solely the accusations of colleagues,[1] who neither testified nor gave sworn statements, and there is no indication that the employer investigated the truth of those accusations.

            But we must defer to the commissioner’s credibility determinations and whether relator violated the conflict-of-interest policy involves a credibility determination.  In general, the commissioner can “properly rely on [hearsay] evidence in rendering his decision.”  Wilson v. Comfort Bus Co., 491 N.W.2d 908, 910 (Minn. App. 1992) (citation omitted), review denied (Minn. Jan. 15, 1993).  We have on at least one occasion reversed the commissioner’s decision because the commissioner relied on the unreliable statement of an absent witness.  Posch v. St. Otto’s Home, 561 N.W.2d 564, 566-67 (Minn. App. 1997).  But that case involved unique circumstances where the alleged gross misconduct involved a possible theft of pain relievers and the absent witness had the same or greater motive to lie about the drugs than did the discharged employee.  Id. at 566.  In the circumstances of this case, we find no basis for depriving the commissioner of his authority to determine the credibility of testimony.

            Affirmed.



[1] In his brief, relator argues that one of his colleagues “told me he was going to be fired if he didn’t tell that I sold cars from home.”  This statement/motive was not part of the record on appeal and appellate courts may not consider “matters outside the record on appeal” or “matters not produced and received in evidence below.”  Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988) (citations omitted).