State of Minnesota, Respondent, vs. William Joseph Netz, Appellant.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480 A. 08, subd. 3 (1998).

Raymond D. Campbell,
Relator,

vs.

Harold's Cartage, Inc.,
Respondent,

Commissioner of Economic Security,
Respondent.

Department of Economic Security
File No. 470 99

Raymond Campbell, 350 Prairie Road, Monticello, MN 55362 (pro se appellant)

Harold's Cartage, Inc., PO Box 384, Rogers, MN 55374 (respondent)

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

Considered and decided by Kalitowski, Presiding Judge, Halbrooks, Judge, and Huspeni, Judge.[*]

Relator Raymond D. Campbell appeals from the decision disqualifying him from receiving reemployment benefits. The Commissioner of Economic Security found that he was discharged from his employment for misconduct. Relator contends that he was terminated because he notified the employer of his intent to quit. We affirm.

Relator Raymond D. Campbell was hired by respondent Harold's Cartage, Inc. in May 1997 as a truck driver. In October 1997, Campbell was reassigned to nighttime warehouse work at his request. Following the transfer to the warehouse, Campbell continued to occasionally drive truck off-premises for Harold's Cartage and operated a forklift and trucks on the company's property.

Harold's Cartage conducted random drug testing of its employees. In June 1998, Campbell tested positive for marijuana use. Following the positive test, Campbell's off-premises truck driving responsibilities were eliminated, but he continued to operate a forklift and trucks on Harold's Cartage's property. Campbell was informed that his continued employment was contingent on remaining drug free. In September 1998, Campbell took another drug test and passed.

In February 1999, a co-worker who had tested positive for drug use told Harold Graczyk, the owner of Harold's Cartage, that he and Campbell had been using drugs on the job. Graczyk began watching Campbell and the rest of the warehouse workers in an attempt to ensure that they were not using drugs.

Graczyk became aware that Campbell intended to quit his position with Harold's Cartage to take a new job. Graczyk asked Campbell to submit a written letter of resignation indicating when his last day of work would be. On March 23, 1999, Campbell submitted a letter resigning from his position effective April 9, 1999. When Campbell gave Graczyk his letter, they discussed his resignation and Graczyk asked Campbell whether he had been using drugs on the job. Campbell denied that he had, but stated that if he were given a drug test at that time he could not pass the test. Campbell was not asked to submit to a drug test to confirm his admission. On March 24, 1999, Campbell arrived at work and found that his timecard had been replaced with a letter terminating him from his employment effective immediately.

Following his termination, Campbell filed for reemployment benefits. He was initially granted benefits through the week of April 9, 1999, but disqualified from benefits following April 9, 1999, because he quit without a good reason caused by Harold's Cartage. Harold's Cartage appealed from the determination, and a reemployment insurance judge conducted a hearing. The reemployment insurance judge modified the initial determination and disqualified Campbell from receiving benefits because his discharge had resulted from misconduct. Campbell appealed from that decision, and the commissioner's representative affirmed.

The commissioner's representative's determination that an employee committed misconduct is a mixed question of fact and law. Colburn v. Pine Portage Madden Bros., 346 N.W.2d 159, 161 (Minn. 1984). The representative's factual findings must "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) (citation omitted). But whether those findings support a misconduct determination is a question of law subject to de novo review. Cook v. Playworks, 541 N.W.2d 366, 368 (Minn. App. 1996).

The commissioner's representative made several factual findings to support her decision that Campbell was terminated for disqualifying misconduct. Campbell challenges two of the findings.

First, Campbell contends that the commissioner's representative improperly relied on hearsay in finding that he used drugs on the job with a co-worker. But hearsay evidence is admissible in reemployment benefit hearings and can be used to support a determination that an employee was terminated for misconduct. Youa True Vang v. A-1 Maintenance Serv., 376 N.W.2d 479, 482 (Minn. App. 1985).

Second, Campbell contends that the evidence does not support the finding that he admitted to Graczyk that he could not pass a drug test on March 23, 1999. He denies that he made this admission and makes additional arguments in support of his contention. The commissioner's representative, however, expressly credited Graczyk's testimony in her written decision. Where credibility is at issue, "this court must defer to the Commissioner's ability to weigh the evidence." Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995) (citation omitted).

Because we find that there is evidence that reasonably tends to support the findings, we will not disturb them. White, 332 N.W.2d at 26.

We next turn to the question of whether the facts as found by the commissioner's representative constitute disqualifying misconduct. For purposes of reemployment benefits, disqualifying misconduct includes "intentional conduct showing a disregard of * * * the standards of behavior that an employer has the right to expect of the employee." Minn. Stat. § 268.095, subd. 6(2) (1998). An employee terminated for disqualifying misconduct is not entitled to benefits because the benefits are meant to provide assistance to employees terminated "through no fault of their own." Ress v. Abbott NW Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989) (citation omitted).

The commissioner's representative concluded:

[Campbell's] continued use of drugs, despite his knowledge that such conduct was prohibited by the employer's policy as well as by the terms and conditions of his continued employment reflected a deliberate violation of the standards of behavior which the employer had a right to expect of him and constituted employment misconduct * * * .

An employer can require its employees to be drug free. Hein v. Gresen Div., 552 N.W.2d 41, 44 (Minn. App. 1996). In Hein, the court held:

The employer's requirement that Hein abstain from illegal drug use while off-duty was reasonable in light of the public policy against such use. Hein committed misconduct "connected with" his employment because he violated the agreement which made his continued employment conditional on remaining drug-free. Hein violated a standard to which his employer had the right to expect adherence. The actual drug use also constituted misconduct that interferes with employment because Hein operated heavy machinery that posed a danger to others if he were under the influence of drugs.

Id. (citations omitted). Like Hein, Campbell's continued employment was contingent on him remaining drug free and Campbell's position required the occasional operation of heavy machinery.

Because there is evidence tending to support the commissioner's findings that Campbell used drugs despite the fact that he had been warned that continued drug use would jeopardize his employment and because this drug use constituted misconduct disqualifying him from reemployment benefits, we affirm.

 Affirmed.

[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.