This opinion will be unpublished and

may not be cited except as provided by

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




Paul Tacheny,



Summit Door,


Commissioner of Economic Security,


Filed April 14, 1998


Mansur, Judge**

Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

Department of Economic Security

Agency File No. 4327UC97

Paul Tacheny, 1873 Ames Avenue, St. Paul, MN 55119 (pro se relator)

Robert C. Boisvert, Jr., Fredrikson & Byron, P.A., 1100 International Centre, 900 Second Avenue South, Minneapolis, MN 55402 (for respondent Summit Door)

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

Considered and decided by Short, Presiding Judge, Shumaker, Judge, and Mansur, Judge.



The representative of the Commissioner of Economic Security reversed a reemployment insurance judge's award of benefits, determining that relator Paul Tacheny was disqualified because of misconduct. Relator challenges the commissioner's representative's action by certiorari appeal. We affirm.


Relator Paul Tacheny worked as a woodworker for respondent Summit Door from August 28, 1996, to April 24, 1997. During that time, Tacheny was involved in at least four incidents with coworkers. Summit Door terminated Tacheny for his repeated involvement in altercations with coworkers.

Tacheny applied for reemployment insurance benefits, but the claims representative denied benefits, concluding that he was terminated for misconduct. Tacheny appealed this determination, and an evidentiary hearing was held before a reemployment insurance judge. Tacheny testified that after the incidents, he was told to walk away from arguments and to try to get along with his coworkers. A supervisor testified that he told Tacheny that his involvement in arguments could lead to the termination of his employment. The reemployment insurance judge concluded that Tacheny's conduct did not amount to misconduct.

The commissioner's representative disagreed with the reemployment judge's characterization of the facts, finding that:

[Tacheny's] testimony [was] self-serving and totally lacking in credibility. We were persuaded by the credible testimony presented by the employer's witnesses that the claimant was an active participant in each of the confrontations and that while the claimant may not always have been the instigator, he always pursued a course of action that he knew or should have known would only aggravate matters, despite the employer's repeated pleas that he avoid trouble by walking away from tense situations.


The commissioner's representative's findings should be viewed in the light most favorable to the decision, and should not be overturned if there is evidence in the record that reasonably tends to sustain those findings. Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989). This court reviews "the findings of the commissioner or the commissioner's representative, not those of the referee, even though those findings might involve witness credibility." Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).

Whether an employee committed disqualifying misconduct is a mixed question of fact and law. Colburn v. Pine Portage Madden Bros., Inc., 346 N.W.2d 159, 161 (Minn. 1984). The final determination of whether an employee committed misconduct, however, is a question of law upon which this court is free to exercise its independent judgment. Ress, 448 N.W.2d at 523.

An employee who is discharged for misconduct is disqualified from receiving reemployment compensation benefits. Minn. Stat. § 268.09, subd. 1(b) (1996). The 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 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, un- satisfactory 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, 374-75, 204 N.W.2d 644, 646 (1973) (quoting Boynton Cab Co. v. Neubeck, 296 N.W. 636, 640 (Wis. 1941)). In analyzing misconduct, this court generally has considered the following factors:

(1) whether an employee deliberately violated standards of behavior which the employer has a right to expect of its employee, (2) whether an employee's conduct adversely affected the business or other employee's morale, and (3) whether an employee ignored past warnings.

Ress, 448 N.W.2d at 524. Even a single incident can constitute misconduct. Colburn, 346 N.W.2d at 161.

The commissioner's findings of fact regarding the incidents are reasonably supported by the record. We now examine these findings in light of the factors in Ress: (1) Summit Door had a right to expect its employees to avoid conflicts while at work, and Tacheny repeatedly disregarded his employer's directives to walk away from tense situations; (2) Tacheny's conduct disrupted work activities and adversely affected the morale of coworkers; and (3) Tacheny ignored repeated warnings to avoid conflicts. We conclude that Tacheny's involvement in the incidents with his coworkers, after repeated warnings to avoid such conflict, constitutes misconduct.

Tacheny also argues that the commissioner's representative relied on hearsay in making its decision. But the Minnesota Rules specifically permit the introduction of hearsay evidence "if it is the type of evidence on which reasonable, prudent persons are accustomed to rely in the conduct of their serious affairs." Minn. R. 3310.2922 (1997); see also Trebelhorn v. Minneapolis Cable Sys., Inc., 380 N.W.2d 237, 239 (Minn. App. 1986) (finding hearsay evidence sufficient to sustain commissioner's representative's denial of reemployment benefits). Additionally, even excluding the hearsay evidence, the record supports the commissioner's representative's factual findings. Tacheny admits that he participated in each of the incidents cited by Summit Door as support for terminating Tacheny's employment.