Donald Dobsinski, Relator, vs. Sears Imported Autos, Respondent, Commissioner of Economic Security, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1998).

IN COURT OF APPEALS

Donald Dobsinski,

Relator,

vs.

Sears Imported Autos,

Respondent,

Commissioner of Economic Security,

Respondent.

Filed April 11, 2000

Affirmed

Toussaint, Chief Judge

Department of Economic Security

File No. 79399

Donald Dobsinski, 1273 Randolph Avenue, St. Paul, MN 55105 (Pro se relator)

Sears Imported Autos, 13500 Wayzata Blvd., Minnetonka, MN 55305 (Pro se respondent)

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

                  Considered and decided by Chief Judge Toussaint, Presiding Judge, Willis, Judge, and Huspeni, Judge.*

TOUSSAINT, Chief Judge

Relator Donald Dobsinski seeks review of the Commissioner of Economic Security's (the commissioner) decision determining that he is disqualified from receiving reemployment benefits because he was discharged from his employment for misconduct.  Because the evidence reasonably supports the commissioner's finding that Dobsinski committed misconduct by allowing a friend to use a company truck without permission from his employer, we affirm.

D E C I S I O N

            On appeal of denial of reemployment benefits, this court reviews the decision of the commissioners, not the reemployment insurance judge's decision.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995); Fujan v. Ruffridge-Johnson Equip., 535 N.W.2d 393, 395 (Minn. App. 1995).  Whether employees have committed misconduct disqualifying them from receiving reemployment benefits is a mixed question of law and fact.  Colburn v. Pine Portage Madden Bros., Inc., 346 N.W.2d 159, 161 (Minn. 1984).  When the record presents conflicting facts, it is not this court's role to weigh the evidence and determine where the preponderance lies.  Cary v. Custom Coach, Inc., 349 N.W.2d 331, 332 (Minn. App. 1984) (citing Nyberg v. R.N. Cardozo & Bro., Inc., 243 Minn. 361, 364, 67 N.W.2d 821, 823 (1954)).  However, deciding whether an employee was properly disqualified from receiving benefits is a question of law to be decided by this court's independent judgment.  Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).

            The commissioner's 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); see also Posch v. St. Otto's Home, 561 N.W.2d 564, 566 (Minn. App. 1997) (holding findings must be sustained if evidence reasonably supports them).

            The commissioner agreed with the decision of the reemployment insurance judge and explicitly found Dobsinski's testimony "evasive, inconsistent, and confusing" and his protestations of innocence not credible.  Decisions concerning witness credibility are within the discretion of the commissioner and this court should defer to those determinations.  See Cary, 349 N.W.2d at 332 (holding this court not privileged to weigh evidence); Gradine v. College of St. Scholastica, 426 N.W.2d 459, 462-63 (Minn. App. 1988) (holding this court defers to the commissioner's credibility decisions); Seemann v. Little Crow Trucking, 412 N.W.2d 422, 426 (Minn. App. 1987) (deferring to conclusion that employee's testimony was not believable, especially when the commissioner affirmed referee's decision).

            The evidence shows: (1) Sears Imported Autos's truck was entrusted to Dobsinski's care as part of his employment; (2) Dobsinski gave a friend permission to use his car to go to the store; (3) Dobsinski used the terms "truck" and "car" interchangeably; (4) Dobsinski admitted he did not know if his friend took his car or Sears's truck; (5) Dobsinski admitted that he may have left the truck doors unlocked and the keys in the truck; (6) when the truck was found abandoned in a snowbank the keys were in it; (7) the truck was damaged and impounded, which cost Sears over $900 to rectify; (8) Sears fired Dobsinski for unauthorized or inappropriate use of a company vehicle.  Viewed in the light most favorable to the commissioner's decision, the evidence reasonably supports the commissioner's finding that Dobsinski allowed a friend to use Sears's truck.  See Posch, 561 N.W.2d at 566 (requiring commissioner's findings to be sustained if evidence reasonably supports them).

            Allowing a friend to use Sears's truck constituted misconduct, because it showed a disregard of Sears's interest, fell below the standards of behavior that Sears had the right to expect of Dobsinski, and violated Dobsinski's duty and obligation to take reasonable care of Sears's property.  Minn. Stat. § 268.095, subd. 6 (1998).  The record supports the commissioner's determination that Sears Imported Autos discharged Dobsinski from his employment for misconduct.  Therefore, Dobsinski is not qualified to receive reemployment insurance benefits.

                  Affirmed.

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