This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
Marshall E. Owens,
Signature Flight Support Corp.,
Commissioner of Employment and Economic Development,
Filed December 30, 2003
Toussaint, Chief Judge
Department of Employment and Economic Development
File No. 14242 02
Thomas H. Boyd, Winthrop & Weinstine, P.A., 225 South 6th Street, Suite 3500, Minneapolis, Minnesota 55402 (for relator)
Katrina I. Smith, Lee B. Nelson, Department of Employment and Economic Development, 390 Robert Street North, St. Paul, Minnesota 55101 (for respondent Commissioner of Employment and Economic Development)
Signature Flight Support Corp. c/o Gates McDonald & Company, P.O. Box 3930, Des Moines, IA 50322-0930 (respondent)
Considered and decided by Toussaint, Chief Judge; Peterson, Judge; and Crippen, Judge.*
U N P U B L I S H E D O P I N I O N
TOUSSAINT, Chief Judge
Relator brings a certiorari appeal of the determination of a commissioner’s representative that he committed employment misconduct disqualifying him from receiving unemployment benefits. Because the record does not support the conclusion that relator intentionally violated the employer’s rule against sleeping on the job, and does not support the determination that relator demonstrated a substantial lack of concern for his employment, we reverse.
Relator Marshall Owens appeals, by writ of certiorari, the decision of the commissioner’s representative denying him unemployment benefits for disqualifying misconduct arising out of his work at Signature Flight Corporation (Signature), an aviation ground services support company. Owens was employed as a ground services equipment mechanic at Signature for eleven years. He was terminated from his job on the night shift at Signature on August 7, 2002, after a supervisor observed him asleep in a break room at the end of his shift.
Signature had an express written policy prohibiting sleeping on the job. Owens had previously received a one-day suspension for sleeping on the job after he and another employee fell asleep in a truck. He was informed that a further violation of company work rules during the next twelve months would result in disciplinary action. Owens had also received a three-day suspension on an unrelated matter, which he contested through his union grievance process.
In May 2002, Owens visited his doctor, who made a probable diagnosis of sleep apnea and recommended that Owens see a pulmonologist for a sleep study. Owens, however, did not follow up because the evaluation would require an overnight stay and he had already accumulated excessive absences due to his family medical situation; his wife has lupus, and a child has Down’s syndrome. Owens did not tell his employer about his sleep disorder.
On August 7, 2002, Owens’ manager observed him asleep, sitting at a table in a lighted break room near the end of his shift after he had finished working. Owens had a cup of coffee and dozed off in the middle of doing paperwork. The manager observed him sleeping for about three to five minutes; Owens woke up when the manager spoke to someone else in the room. Signature terminated Owens that day.
After Owens applied for unemployment benefits, his doctor completed a clinic report determining that he suffered from sleep apnea. The doctor also filled out a further medical statement, noting that “[p]eople fall asleep while driving when they have this condition.” The Department of Economic Security determined that Owens was not disqualified from receiving benefits. Signature appealed, and a hearing was held before an unemployment law judge.
The unemployment law judge (ULJ) reversed the previous decision, finding by a preponderance of the evidence that Owens was discharged for sleeping on the job, that he failed to notify his employer of his medical condition, and that his conduct showed an intentional disregard for behavior that his employer had the right to expect. Owens then participated in a sleep study that confirmed his diagnosis of sleep apnea/hyperpnoea. He also filed an affidavit stating that he had not taken his full break time on the night that he was discovered asleep on the job. On further appeal, the commissioner’s representative affirmed the ULJ’s determination, concluding that while Owens may have had a sleep disorder, he failed to inform his employer of that condition and did not take the recommended diagnostic tests, and that his behavior evinced an intentional disregard of his duties and a substantial lack of concern for his employment. This appeal by writ of certiorari followed.
An employee discharged for misconduct is not eligible for unemployment benefits. Minn. Stat. § 268.095, subd. 4(1) (2002). Employment misconduct includes (1) “any intentional conduct . . . that disregards the standards of behavior that an employer has the right to expect of the employee; or (2) neglect or indifferent conduct . . . that demonstrates a substantial lack of concern for the employment.” Id., subd. 6(a)(1) & (2); see also Houston v. Int’l Data Transfer Corp., 645 N.W.2d 144, 149 (Minn. 2002) (explicating statutory definition).
Whether a former employee is disqualified from receiving unemployment benefits is a mixed question of law and fact. Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002). The determination of whether the employee committed a particular act is a question of fact. Scheunemann v. Radisson South Hotel, 562N.W.2d 32, 34 (Minn. App. 1997). Whether that act constitutes unemployment misconduct is a legal question. Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996). This court defers to factual determinations of the commissioner’s representative that are reasonably supported by evidence in the record but exercises independent judgment with respect to questions of law. Id.
A finding of employment misconduct requires “a sufficient showing in the record that the employee not only engaged in intentional conduct, but also intended to . . . ignore or pay no attention to his or her duties and obligations or the standards of behavior the employer has a right to expect.” Houston, 645 N.W.2dat 150. In Auger v. Gillette Co., 303 N.W.2d 255, 258 (Minn. 1981), the Minnesota Supreme Court upheld the commissioner’s determination that sleeping on the job was employee misconduct, when the employees were found sleeping during work hours with pillows and an alarm clock, with the alarm clock set to go off at a time over an hour longer than the break time permitted on the employees’ shift. Id. at 256-57. This case, however, is readily distinguished from Auger. The evidence does not reflect that Owens intentionally set out to sleep on the job, but rather than he inadvertently fell asleep, probably as a result of a sleep disorder. See Houston, 645 N.W.2d at 149 (noting that for conduct to be intentional “it must be deliberate and not accidental”) (citation omitted). Thus, the decision of the commissioner’s representative lacks reasonable support in the record. Although Owens had not yet had an appointment with the sleep specialist to verify his sleep apnea, his treating physician had noted before his discharge a probable diagnosis of sleep apnea, accounting for his tendency to fall asleep easily. His doctor later reiterated that diagnosis, noting that “sleep apnea is a serious problem. It can make people fall asleep quite easily.” Although these reports were filed after the discharge, they were introduced by the department at the unemployment hearing. They constitute relevant evidence and form a proper part of the record before us. Cf. Hanka v. Hardware, 343 N.W.2d 46, 48 (Minn. App. 1984) (holding that exhibits not received in evidence at unemployment hearing could not be reviewed as part of the record on appeal). Owens’s probable diagnosis of sleep apnea, which was verified after he was discharged, provides ample support for his contention that his act of falling asleep on the job was involuntary, rather than intentional, and we conclude that the commissioner’s representative erred in denying him unemployment benefits based on the finding that he committed intentional misconduct within the requisite statutory definition.
The commissioner’s representative argues that Owens’s failure to inform his employer about his sleep apnea, and his failure to follow up with further testing, demonstrated a substantial lack of concern for his employment, precluding him from recovering unemployment benefits. Cf. Minn. Stat. § 268.095, subd. 6 (b) (2002), (noting that “[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” do not constitute employment misconduct). But although Owens did not tell the employer directly about the sleep apnea, he testified that his manager, who had once seen him sleeping upright holding a gate open, once inquired if he had a sleep disorder. See, e.g., Kalberg v. Park & Recreation Bd. of Minneapolis, 563 N.W.2d 275, 277 (Minn. App. 1997) (holding that claimant was entitled to receive benefits pursuant to chemical dependency exception when employee did not tell employer about chemical dependency but employer knew employee’s history of chemical dependency).
We also recognize that Owens’s family circumstances—his wife’s diagnosis with lupus and a child with Down syndrome—may constitute mitigating factors in the determination of whether he committed disqualifying misconduct. See Wedgewood v. Dir. of Div. of Employment Sec., 514 N.E.2d 680, 683 (Mass. App. 1987) (distinguishing Auger and noting that “serious personal problems causing an employee to be unusually fatigued at a particular period in his life may constitute such substantial and relevant mitigating factors as to prevent his sleeping on the job from being considered deliberate misconduct in willful disregard of his employer’s interest”). We conclude that the record supports Owens’s contention that he did not want to schedule the sleep evaluation because it required an overnight stay, and he had already been written up for excessive absenteeism because of medical conditions in his family.
We note Owens’s additional argument that the evidence fails to show that he had already taken his allotted break time when he was found sleeping on the job. After the hearing, he submitted an affidavit clarifying his position on this point. But because the affidavit was not submitted to the hearing officer, it is not part of the record on appeal. See Hanka, 343 N.W.2d at 48.
We do not address the issue of whether Signature properly discharged Owens, but only whether he is entitled to unemployment benefits. Auger, 303 N.W.2d at 257. We conclude that substantial evidence on the record as a whole fails to support the commissioner’s representative’s decision to deny Owens unemployment benefits based on employment misconduct.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 The 2003 Minnesota legislature amended Minn. Stat. § 268.095 to provide for a different definition of employment misconduct. 2003 Minn. Laws 1st Spec. Sess. ch. 3, art. 2, § 13. Because Owens was discharged in 2002, before the 2003 law took effect, the 2002 law applies See Minn. Stat. § 645.02 (2002) (providing that unless otherwise specified, laws are effective Aug. 1 of year enacted.