This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-95-2663

Todd W. Francisco,

Relator,

vs.

United MicroLabs, Inc.,

Respondent,

Commissioner of Economic Security,

Respondent.

Filed May 21, 1996

Affirmed

Huspeni, Judge

Department of Economic Security

Agency File No. 7238UC95

Todd W. Francisco, Pro Se, 11953 Eidelweiss St. N.W., Coon Rapids, MN 55433-1746 (pro se Relator)

Kent E. Todd, Dept. of Economic Security, 390 N. Robert St., St. Paul, MN 55101 (for Respondent Commissioner of Economic Security)

Considered and decided by Huspeni, Presiding Judge, Crippen, Judge, and Klaphake, Judge.

U N P U B L I S H E D O P I N I O N

HUSPENI, Judge

Relator argues that the representative of the Commissioner of Economic Security erred in concluding that relator had committed misconduct disqualifying him from receiving reemployment insurance benefits. Because we conclude that relator's continued practice of unsafe driving constituted misconduct, we affirm.

FACTS

Relator Todd W. Francisco was employed as a driver by respondent United MicroLabs, Inc. (employer) from September 2, 1994, to July 17, 1995.

Relator made his deliveries in a van marked on the side with the employer's name and telephone number. During relator's first two months on the job, the employer received telephone complaints from four different motorists who expressed concern about relator's unsafe driving habits. The complaining motorists accused relator of various driving infractions including tailgating, cutting in front of other cars, and making a left turn on a red light. Following these complaints, the employer gave relator a written warning for unsafe driving.

In February 1995, relator caused damage to another car when he inadvertently bumped it while attempting to parallel park the employer's van. Relator reported this accident to the employer. The employer advised relator to drive more carefully.

In May 1995, the employer received another telephone complaint from a motorist who expressed concern that relator was driving the employer's van in a hazardous manner. Relator received a verbal warning as a result of this complaint.

In July 1995, while driving the employer's van during rush hour through a freeway construction zone, relator rear-ended the car in front of him which, in turn, rear-ended another vehicle. The accident caused minimal damage to the employer's van, but caused extensive damage to the other two cars. Following the accident, the employer discharged relator for unsafe vehicle operation.

Relator subsequently applied for reemployment insurance benefits. The Department of Economic Security (Department) disqualified relator from receiving benefits and relator appealed. After an evidentiary hearing, a reemployment insurance judge reversed the Department's determination and awarded relator benefits. The Department appealed. A representative of the Commissioner of Economic Security (Commissioner) reversed the reemployment insurance judge's decision and disqualified relator from receiving benefits. Relator appeals by writ of certiorari.

D E C I S I O N

On appeal, this court reviews the decision of the Commissioner's representative, not the decision of the reemployment insurance judge. Tuff v. Knitcraft, 526 N.W.2d 50, 51 (Minn. 1995). Whether an employee has committed misconduct is a mixed question of fact and law. Colburn v. Pine Portage Madden Bros., Inc., 346 N.W.2d 159, 161 (Minn. 1984). A review of the Commissioner's factual findings is limited to whether the evidence supports the decision, but we review de novo the question of whether the facts found by the Commissioner constitute misconduct. Ress v. Abbott-Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).

An employee discharged for misconduct is disqualified from receiving reemployment insurance benefits. Minn. Stat. § 268.09, subd. 1(b) (1994). The employer has the burden of proving misconduct. Lumpkin v. North Cen. Airlines, Inc., 296 Minn. 456, 459-60, 209 N.W.2d 397, 400 (1973).

Misconduct has been defined as

"conduct evincing such willful or wanton disregard of an employer's interest 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. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or goodfaith errors in judgment or discretion are not to be deemed misconduct * * *."

Tilseth v. Midwest Lumber Co., 295 Minn. 372, 374-75, 204 N.W.2d 644, 646 (1973) (quoting Boynton Cab Co. v. Neubeck, 237 Wis. 249-59, 296 N.W. 636, 640 (1941)). The issue is not whether the employer was justified in dismissing the employee, but whether the employee committed disqualifying misconduct for reemployment insurance purposes. See Ress, 448 N.W.2d at 523.

Relator claims that his traffic violations in no way portray a disrespect for his employer's interest or an intent to harm his employer, arguing that the number of complaints from motorists significantly diminished to only one in nine months, the accidents were independent events that occurred in very different settings, and the employer has demonstrated its belief in relator as a valuable and concerned employee. We disagree.

The Commissioner's representative held that relator's

pattern of unsafe driving practices evinced the requisite level of "willfulness" necessary to support a finding of misconduct within the meaning of Minnesota Statutes § 268.09, subd. 1(b).

The Commissioner's representative noted that relator "never expressly denied that the employer had received complaints about his driving nor did he expressly deny engaging in unsafe driving practices." Further, the Commissioner's representative disagreed with the reemployment insurance judge's reliance on Swanson v. Columbia Transit Corp., 311 Minn. 538, 248 N.W.2d 732 (1976).

In Swanson, a school bus driver was discharged from his job because he had been involved in three accidents within 47 days. All three accidents had occurred on the job, and a grievance committee had determined that the bus driver was at fault in one accident and was speeding and driving carelessly at the time of another accident. Nevertheless, the Swanson court reversed the Commissioner's determination that the employee had engaged in misconduct, concluding:

Taken separately, employee's accidents only represent incidents of inadvertence or negligence. While we do not rule out the possibility of a series of negligent or inadvertent acts amounting to misconduct, the evidence does not support such a conclusion in this case.

Id. at 539, 248 N.W.2d at 733 (footnote omitted).

Similarly, in Eddins v. Chippewa Springs Corp., 388 N.W.2d 434 (Minn. App. 1986), this court held that an employee-driver did not engage in misconduct, although his employer's insurance was cancelled because the employee had received six tickets for moving traffic violations over a period of two years and eight months. The employee received the first ticket during working hours for making an illegal left turn, and received the other five tickets (for speeding and for making an illegal lane change) while off-duty and driving his own vehicle. The Eddins court concluded:

While Eddins' acts support strong inferences of inadvertence or negligence, we do not find a sufficient basis to support a finding of disqualifying misconduct. The driving incidents, with one exception, occurred on his own time; he paid the tickets himself; he disputes the validity of one of the tickets; he was otherwise considered a good employee; and the six violations were minor and occurred over a period of more than two and one-half years.

Eddins, 388 N.W.2d at 436.

In the present case, the Commissioner's representative stated:

[Relator's] driving practices cannot be characterized as anything but the "series of negligent or inadvertent acts amounting to misconduct" to which the Swanson court was referring when it recognized that some behavior should be distinguished from mere incidents of inadvertence or negligence. Therefore, [relator's] actions were significantly more serious and demonstrated the culpability necessary to support a determination of misconduct. See, for example, Nelson v. Hartz Truckline, 401 N.W.2d 436 (Minn. App. 1987) (Claimant engaged in misconduct when he received four speeding tickets within a period of eight months while driving the employer's vehicle, despite having received a warning from the employer), [review denied (Minn. Apr. 29, 1987)].

The Nelson court based its decision on several elements:

Not only did Nelson violate the law upon four occasions within a relatively short period of time; each of those violations occurred on Hartz's time and in Hartz's vehicle. Thus, Hartz's exposure to liability was heightened by Nelson's continued behavior. Further, the incidents here were not simply accidents, but were repeated violations of public safety statutes. Nor can the four speeding violations be characterized as "minor," as were the traffic offenses in Eddins. Finally, the record discloses that Nelson continued to speed even after Hartz issued him a warning letter in April 1985; he received his fourth speeding ticket approximately two weeks later.

Id. at 439.

Similarly, the Commissioner's representative based her decision on a number of factors:

First, [relator] repeatedly violated the Minnesota Traffic Code while he was on duty and while he was driving the employer's van. Second, his driving practices were so reckless that the employer received numerous complaints from the motoring public accusing him of being a hazard. Third [relator's] reckless operation of the employer's van tarnished the employer's reputation in the community and resulted in the employer being held financially liable for the damage caused by the [relator's] accident on July 17, 1995. Last, [relator] continued to engage in unsafe driving practices, despite warnings from the employer.

These factors indicate that the present case is similar to Nelson and can be distinguished from Swanson and Eddins. We therefore conclude that the Commissioner's representative correctly determined that relator's behavior amounted to misconduct.

Affirmed.