This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






Richard W. Farthing,





American Building Maintenance Co.,



Commissioner of Economic Security,



Filed January 15, 2002


Toussaint, Chief Judge


Department of Economic Security

File No. 330301


Jonathan Geffen, Southern Minnesota Regional Legal Services, 300 Minnesota Building, 46 East Fourth Street, St. Paul, MN  55101 (for relator)


Mark Alan Greenman, 700 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN 55402 (for respondent American Building Maintenance Co.)


Philip B. Byrne, Minnesota Department of Economic Security, 390 North Robert Street, St. Paul, MN  55101 (for respondent Commissioner of Economic Security)



            Considered and decided by Toussaint, Chief Judge, Crippen, Judge, and Foley, Judge.*

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

            Respondent American Building Maintenance Co. employed relator Richard Farthing as a maintenance worker and supervisor.  It discharged him after he was found asleep on a couch in an atrium area, for violation of rules prohibiting sleeping on the job, leaving his work area, and entering another area without authorization, and using the customer’s equipment without authorization.

            Relator seeks certiorari review of the decision by the commissioner’s representative that he was disqualified from receiving unemployment benefits because he had been discharged for misconduct.  Relator argues that his actions were due to inadvertence and incapacity caused by symptoms of the illnesses from which he suffered, including coronary heart disease, congestive heart failure, and sleep apnea.  He also contends that at his hearing, the unemployment judge should have assisted him in bringing out the relevant facts as to the effect of his illnesses.  Because the record as a matter of law does not support the conclusion that relator intentionally disobeyed the employer’s rules but that his actions were instead the result of inadvertence and incapacity, we reverse.


            In reviewing an economic security decision, an appellate court will review questions of fact in the light most favorable to the decision and uphold findings that are reasonably supported by the evidence.  White v. Metro. Med. Ctr., 332 N.W.2d 25, 26 (Minn. 1983).  Whether an employee committed disqualifying misconduct is a question of law on which the appellate court may exercise independent judgment.  Ress v. Abbott N.W. Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).

            Relator contends that he did not have a fair hearing because the unemployment judge did not assist him in bringing out the relevant facts as to the effect of his illnesses.  When a party is pro se, the unemployment judge and the commissioner’s representative have an obligation to help the party and “to recognize and interpret the parties’ claims.”  Miller v. Int’l Express Corp., 495 N.W.2d 616, 618 (Minn. App. 1993).  Here, it appears that relator was able to present sufficient facts; the question is whether the decision by the commissioner’s representative was proper as a matter of law.

            An employee who is discharged for employment misconduct is disqualified from receiving unemployment compensation benefits.  Minn. Stat. § 268.095, subd. 4(1) (2000).  Employee misconduct is defined in relevant part as

any intentional conduct, on the job or off the job, that disregards the standards of behavior that an employer has the right to expect of the employee or disregards the employee’s duties and obligations to the employer.


Minn. Stat. § 268.095, subd. 6(a)(1) (2000).  Employment misconduct specifically does not include

[i]nefficiency, inadvertence, simple unsatisfactory conduct, poor performance because of inability or incapacity, or absence because of illness or injury with proper notice to the employer * * *.


Id., subd. 6(b).

            At issue here is the decision by the commissioner’s representative that relator committed employment misconduct because he violated the employer’s rules by leaving his work area and entering another area without authorization, by using customer equipment (a couch) without permission, and by sleeping on the job.[1]  Relator does not dispute that these rules were violated.  Instead, he argues that because his actions were the result of his medical problems, they were due to inadvertence and incapacity, and did not constitute misconduct within the meaning of the statute.  Although these facts relating to his medical condition were undisputed, the commissioner failed to address them.

            The record establishes that relator had heart problems and his employer was aware of his condition.  On the date in question, he was experiencing chest pains and went to the atrium area to rest, where he fell asleep on a couch for some 15 minutes.  Shortly after this incident, he sought further medical attention and was diagnosed with sleep apnea, a sleep disorder, in addition to his heart condition.  At the hearing, he submitted two statements by physicians.  One physician indicated that relator was being evaluated for a very severe sleep disorder, and that falling asleep accidentally was a symptom of this condition.  The other physician diagnosed relator as suffering from sleep apnea, coronary artery disease, and congestive heart failure, noting that all of these conditions can cause fatigue and sleepiness.

            Respondent asserts that the exception from misconduct for illness or injury applies only to absences and is not relevant here, and that the other exceptions do not apply.  SeeId. (setting out types of conduct that do not constitute misconduct).  Respondent contends that relator’s actions were intentional, and he had other options that would not have violated his employer’s rules, such as returning to the office rather than entering an unauthorized area and sleeping on the customer’s couch.

            We do not address the issue of whether the employer properly discharged relator, but whether relator is entitled to unemployment benefits.  Auger v. Gillette Co., 303 N.W.2d 255, 257 (Minn. 1981).  The undisputed facts do not support the conclusion by the commissioner’s representative that relator intentionally disobeyed the employer’s rules.  His actions were not like the willful misconduct displayed when employees were observed sleeping on the job with pillows and blankets and an alarm clock nearby.  Id.  Instead, in light of relator’s documented medical problems, the situation was an example of “[i]nefficiency, inadvertence, simple unsatisfactory conduct, [or] poor performance because of inability or incapacity” and did not constitute misconduct.



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

[1]  While the commissioner’s representative also referred to warnings that relator had received previously for failure to perform his duties properly, the sleeping incident formed the basis for the discharge.