This opinion will be unpublished and

may not be cited except as provided by

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




Dean A. Ellsworth,



Ace Auto Parts & Salvage, Inc.,


Commissioner of Economic Security,


Filed September 16, 1997


Parker, Judge

Department of Economic Security

File No. 9537UC96

Lilian N. Ejebe, Southern Minnesota Regional Legal Services, Inc., 700 Minnesota Building, 46 East Fourth Street, St. Paul, MN 55101 (for relator)

Ace Auto Parts & Salvage, Inc., 754 Rice Street, St. Paul, MN 55117

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

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



Relator Dean A. Ellsworth appeals the determination of the commissioner's representative that he was voluntarily separated from his employment for misconduct. We affirm.


The narrow standard of review [for a reemployment compensation decision] requires that findings be viewed in the light most favorable to the decision, and if there is evidence reasonably tending to sustain them, they will not be disturbed.

White v. Metropolitan Med. Ctr., 332 N.W.2d 25, 26 (Minn. 1983). This court reviews the findings of the commissioner's representative, not those of the reemployment judge, even when those findings involve witness credibility. Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995). Whether an employee has committed disqualifying misconduct is a mixed question of fact and law. Colburn v. Pine Portage Madden Bros., 346 N.W.2d 159, 161 (Minn. 1984). Reviewing courts are not bound by the commissioner's representative's conclusions of law. Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989). However,

[r]esolution of conflicting testimony lies with the Commissioner. This court will not question the Commissioner's determination of credibility.

Nelson v. Bemidji Reg'l Interdistrict Council, 359 N.W.2d 38, 41 (Minn. App. 1984).

Ellsworth argues the commissioner's representative erred in concluding that he stole the car radio in question. He contends that his testimony directly contradicts this conclusion. Furthermore, he claims the evidence in the record is insufficient to support this determination because all of the testimony is based on hearsay. Ellsworth also argues the commissioner's representative erred in concluding that he had stolen car speakers from his employer on a previous occasion. He contends the speaker theft allegation has no bearing on the incident now in question and was, again, based on hearsay. Therefore, Ellsworth argues, the commissioner's representative erred in concluding that he was disqualified from receiving benefits based on misconduct.

An individual who is discharged for misconduct is disqualified from receiving reemployment insurance benefits. Minn. Stat. § 268.09, subd. 1(b) (1996). The Minnesota Supreme Court has adopted the following definition of misconduct:

[T]he intended meaning of the term 'misconduct' * * * is limited to conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations of 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 good-faith errors in judgment or discretion are not to be deemed 'misconduct' * * * .

Tilseth v. Midwest Lumber Co., 295 Minn. 372, 374-5, 204 N.W.2d 644, 646 (1973) (quoting Boyton Cab Co. v. Neubeck, 237 Wis. 249, 259, 296 N.W. 636, 640 (1941)). The issue, therefore, is not whether an employer was "justified" in discharging an employee, but whether the employee's actions constituted "misconduct" for reemployment insurance purposes. McCourtney v. Imprimis Technology, Inc., 465 N.W.2d 721, 724 (Minn. App. 1991). The employer has the burden of proving, by a preponderance of the evidence, that an employee has committed disqualifying misconduct. Id.

The commissioner's representative found that Ellsworth (1) went into the Mazda automobile, removed and stole the radio, and (2) admitted on September 10, 1996, that he stole speakers from a vehicle that he believed would otherwise have been scrapped. The commissioner's representative also concluded that the car had a radio in it when it was towed to Ace's garage. Acknowledging that Ellsworth had continuously denied all of the allegations against him, the commissioner's representative concluded that hearsay evidence was admissible and supported a finding of misconduct. See Pichler v. Alter Co., 307 Minn. 522, 523, 240 N.W.2d 328, 329 (1976) (commissioner need not strictly comply with rules of evidence). The commissioner's representative then concluded that Ellsworth was discharged from employment for misconduct and disqualified from receiving reemployment benefits.

We cannot say that the determinations of the commissioner's representative are unsupported by the record. We note that the representative's determinations regarding whether Ellsworth took the radio and the previous speaker theft allegations were made in reliance on hearsay testimony. We conclude, however, that there were enough reports of thefts by Ellsworth made to the employer from other employees and from his girlfriend to constitute corroboration. We recognize that the commissioner's representative makes credibility determinations and may use hearsay evidence to support a finding of misconduct in this administrative proceeding. Thus, we do not substitute our judgment for that of the commissioner's representative and conclude that the determination of the commissioner's representative is supported by the record.