This opinion will be unpublished and

may not be cited except as provided by

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




Richard Pautzke,



Little Six, Inc.,


Commissioner of Economic Security,


Filed February 10, 1998


Peterson, Judge

Department of Economic Security

File No. 3820UC97

Richard Pautzke, 605 Rose Drive, Faribault, MN 55021 (pro se relator)

Joseph Plumer, Plumer Law Office, 13340 Greenwich Court, Apple Valley, MN 55124 (for respondent Little Six, Inc.)

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 Lansing, Presiding Judge, Crippen, Judge, and Peterson, Judge.



This appeal is from a decision that relator is disqualified from receiving reemployment insurance benefits because he was discharged from employment for misconduct. We affirm.


Relator Richard Pautzke worked as an environmental services supervisor for respondent Little Six, Inc. from February 1992 to April 1997. In 1994, Little Six implemented a policy prohibiting its employees from engaging in discrimination, harassment, and other offensive behavior in the workplace. In February 1995, Pautzke received a warning after a female employee complained that he had been telling sexually oriented jokes at work. Pautzke was ordered to attend a class about harassment in the workplace and was warned that any further complaints about him telling offensive jokes at work would lead to further disciplinary action, including the possibility of termination.

In February 1997, a female employee complained that she overheard Pautzke telling an offensive joke in the presence of new employees. The employee also reported that Pautzke was present when a male employee told an offensive story to coworkers, but took no action to notify the employee that the story was inappropriate.

Little Six investigated the employee's complaint. During the investigation, several employees stated that Pautzke liked to talk about sex and frequently told jokes at work that were obscene and disgusting. As a result of its investigation, Little Six discharged Pautzke for violating its harassment and offensive behavior policy.

Pautzke filed a claim for reemployment insurance benefits, and a department claims representative determined that he was disqualified from receiving benefits because Little Six discharged him for misconduct. Pautzke appealed and a reemployment insurance judge held that he was not disqualified from receiving reemployment insurance benefits because Little Six's case was based on hearsay evidence, and Pautzke credibly denied the critical events. Little Six appealed to the commissioner's representative who determined that Pautzke was disqualified from receiving benefits because he was discharged for misconduct.


An individual is disqualified from receiving reemployment insurance benefits if the individual was discharged from employment for misconduct. Minn. Stat. § 268.09, subd. 1(b) (1996). The alleged misconduct must be the reason for the discharge. Harringer v. AA Portable Truck & Trailer Repair, Inc., 379 N.W.2d 222, 223-24 (Minn. App. 1985). An employer has the burden of proving by the greater weight of the evidence that the employee is disqualified from receiving benefits because he is guilty of the misconduct charged. Lumpkin v. North Cent. Airlines, Inc., 296 Minn. 456, 459-60, 209 N.W.2d 397, 400 (1973).

Misconduct is conduct showing

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.

Tilseth v. Midwest Lumber Co., 295 Minn. 372, 374-75, 204 N.W.2d 644, 646 (1973).

A knowing violation of an employer's policies, rules, or reasonable requests can constitute misconduct. See, e.g., Montgomery v. F & M Marquette Nat'l Bank, 384 N.W.2d 602, 604-06 (Minn. App. 1986) (employee engaged in misconduct by failing to follow employer's instructions, as well as by being rude to customers and fellow employees), review denied (Minn. June 13, 1986); Ruzynski v. Cub Foods, Inc., 378 N.W.2d 660, 662-63 (Minn. App. 1985) (employee's violation of employer's time card policy constituted misconduct); Duc Van Luu v. Carley Foundry Co., 374 N.W.2d 582, 584 (Minn. App. 1985) (violation of absenteeism policy constituted misconduct). Whether an employee committed misconduct under the statute is a question of law upon which reviewing courts remain free to exercise their independent judgment. Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989). "On appeal, [a reviewing court] must review the decision of the Commissioner's representative rather than that of the [reemployment insurance judge]." Weaver v. Minnesota Valley Lab., Inc., 470 N.W.2d 131, 133 (Minn. App. 1991). The commissioner's representative's findings are viewed in the light most favorable to the decision and are not disturbed if evidence in the record reasonably tends to sustain them. White v. Metropolitan Med. Ctr., 332 N.W.2d 25, 26 (Minn. 1983).

Pautzke argues that Little Six failed to present sufficient evidence demonstrating that he was discharged for misconduct because there were no witnesses present to substantiate the claims that he made inappropriate remarks. He asserts that he did not make any inappropriate comments and was not aware that he had been offensive to anyone.

But a representative of Little Six testified at the reemployment insurance appeal hearing that Pautzke admitted telling jokes that contained sexual innuendoes that could have offended some individuals. Decisions regarding credibility of witnesses lie within the discretion of the commissioner. Cary v. Custom Coach, Inc., 349 N.W.2d 331, 332 (Minn. App. 1984). The commissioner's representative found that the evidence presented by Little Six was credible and that Pautzke was not credible.

Pautzke argues that the commissioner's representative's determination should be reversed because Little Six's case was based upon hearsay evidence. We disagree. This court has repeatedly indicated that the rules of evidence need not be followed in reemployment insurance proceedings and that the commissioner may rely upon hearsay evidence. See, e.g., Seeman v. Little Crow Trucking, 412 N.W.2d 422, 426 (Minn. App. 1987); Arnolds Supply & Kleenit Co., Inc. v. Vang, 410 N.W.2d 37, 39 (Minn. App. 1987); Youa True Vang v. A-1 Maintenance Serv., 376 N.W.2d 479, 482 (Minn. App. 1985).

Little Six had a policy prohibiting its employees from engaging in discrimination, harassment, or other offensive behavior in the workplace. As a supervisor, part of Pautzke's job was to maintain a work environment free of harassment and offensive behavior. Nevertheless, an investigation by Little Six revealed that Pautzke regularly told jokes that contained profanity and sexual innuendoes in violation of Little Six's policies. The record supports the commissioner's representative's decision that Little Six proved, by greater weight of the evidence, that Pautzke was dismissed from employment for misconduct and, therefore, is disqualified from receiving reemployment insurance benefits.