This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-96-1233

Alan Clemons,

Relator,

vs.

Prescription Landscape, Inc.,

Respondent,

Commissioner of Economic Security,

Respondent.

Filed December 24, 1996

Affirmed

Crippen, Judge

Department of Economic Security

File No. 982 UC 96

Alan Clemons, 208 Hoyt #106, St. Paul, MN 55117 (Relator pro se)

Prescription Landscape, Inc., 1311 Sylvan Street, St. Paul, MN 55117 (Respondent)

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

Considered and decided by Crippen, Presiding Judge, Parker, Judge, and Short, Judge.

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

CRIPPEN, Judge

Concluding that relator's tardiness and reckless abuse of a company vehicle constituted misconduct, the Commissioner's representative disqualified relator from receiving reemployment insurance benefits. We affirm the representative's findings and decision.

FACTS

Relator worked for Prescription Landscape, Inc. (Prescription) as a supervisor. Relator received a written warning in June 1995, stating that he had been late for work on three recent dates and had been 10 or 15 minutes late almost every day. A memorandum in October 1995 addressed relator's continued "excessive tardies," discussing how they might be avoided and warning that further late arrivals would result in disciplinary action.

Relator was responsible for operating company vehicles in a safe and efficient manner. Prescription's trucks advertised its name and numbers on the sides, and supervisors were expected to behave in a manner that would not tarnish the company's name in the community.

In July 1995, a woman called to complain that relator had run her off the road and that someone in his truck had "mooned" her. Relator and the other employee in his truck received a memo about the incident.

In December 1995, relator hit a mailbox with his truck. He received a written warning stating that he could not have any more trouble involving the company's trucks and equipment.

On December 31, 1995, while driving a Prescription truck, relator swerved out of his way to splash slush on a pedestrian and drove his truck in a manner that could have caused abuse to the four-wheel drive mechanism. Two employees submitted witness statements describing the incident. Prescription discharged relator following the December 31 incident.

D E C I S I O N

1. Relator argues that he did not subpoena the witnesses to the December 31 incident because it was Prescription's burden to prove that he committed misconduct. See Ress v. Abbott N.W. Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989) (stating that employer has burden of proving misconduct). Because the witnesses did not testify at the hearing, relator claims Prescription did not meet its burden of proof.

But Prescription submitted written statements by the witnesses. The Commissioner's representative properly may rely on hearsay evidence submitted in reemployment insurance hearings. Pichler v. Alter Co., 307 Minn. 522, 523, 240 N.W.2d 328, 329 (1976).

2. On appeal to the Commissioner's representative, relator requested a remand to cross-examine the witnesses and introduce additional evidence concerning the December 31 incident. The Commissioner's representative denied relator's request for a remand, finding that he could have subpoenaed the witnesses. We defer to the Commissioner's representative on remand issues. See Drellack v. Inter-County Community Council, Inc., 366 N.W.2d 671, 675 (Minn. App. 1985) (determining that Commissioner's representative was "well within her discretion" when refusing to remand for new evidence, where relator had simply failed to raise claims and submit evidence that had previously been available).

3. We review the Commissioner's representative's findings in the light most favorable to the decision, and we will not disturb the findings if the record contains evidence that reasonably tends to sustain them. Ress, 448 N.W.2d at 523. We will not re-weigh the evidence or question the Commissioner's representative's credibility determinations. Cary v. Custom Coach, Inc., 349 N.W.2d 331, 332 (Minn. App. 1984) (citing Nyberg v. R.N. Cardozo & Brother, Inc., 243 Minn. 361, 364, 67 N.W.2d 821, 823 (1954)). The record includes adequate evidence to sustain the Commissioner's findings on events that enter into the Commissioner's ultimate determination of misconduct.

An individual who is discharged from a job for misconduct is disqualified from receiving reemployment insurance benefits. Minn. Stat. § 268.09, subd. 1(b) (1994). The question of whether an employee has committed disqualifying misconduct is a mixed question of fact and law. "Misconduct" is a wilful disregard of the employer's interests or of the employee's duties, and it includes deliberate violations of expected conduct or carelessness of a kind that shows comparable culpability. 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, 259, 296 N.W. 636, 640 (1941)).

Although Prescription discharged relator because of his overall work record, the final incident on December 31 alone could support a misconduct determination. See Colburn v. Pine Portage Madden Bros., Inc., 346 N.W.2d 159, 161 (Minn. 1984) (holding that single instance of deliberate action that was adverse to employer's interests constituted misconduct). Despite prior warnings, relator drove Prescription's truck recklessly and attempted to splash pedestrians with slush, thereby evincing a substantial disregard of Prescription's interests.

Even if the final incident alone could not support a misconduct determination, relator's history of tardiness and alleged abuse of company vehicles, combined with the final incident on December 31, constituted misconduct under the "last straw doctrine." See Flahave v. Lang Meat Packing, 343 N.W.2d 683, 686-87 (Minn. App. 1984) (stating that employee's past pattern of behavior, leading to final infraction, may rise to level of misconduct, even though final infraction is "not closely allied in time or tenor to previous infractions of work rules"); see also Barstow v. Honeywell, Inc., 396 N.W.2d 714, 716 (Minn. App. 1986) (concluding that Commissioner's representative could properly consider employee's overall work record even though various incidents of misbehavior were unrelated).

4. The Commissioner argues that relator has included references in his brief that are unsupported by the record. Because we affirm the Commissioner's representative's decision, we need not address this issue.

Affirmed.