This opinion will be unpublished and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
Gaylord Lakeview Home,
Commissioner of Employment and Economic Development,
Filed October 26, 2004
Department of Employment and Economic Development
File No. 13278-03
Pamela L. Rolf, 514 North Carver Street, Winthrop, MN 55396-9228 (pro se relator)
Gaylord Lakeview Home, 640 3rd St., Gaylord, MN 55334-2297 (respondent)
Lee B. Nelson, Linda A. Holmes, Minnesota Department of Employment and Economic Development, 390 Robert Street North, St. Paul, MN 55101 (for respondent commissioner)
Considered and decided by Halbrooks, Presiding Judge; Schumacher, Judge; and Huspeni, Judge.
When relator filed for unemployment benefits with the Minnesota Department of Employment and Economic Development (DEED), a department adjudicator determined that relator had been discharged from employment for misconduct and was, therefore, disqualified from receiving benefits. On appeal, an unemployment law judge (ULJ) affirmed the initial determination. Upon further appeal, a DEED commissioner’s representative affirmed the ULJ’s decision. We affirm.
Relator Pamela L. Rolf worked for Gaylord Lakeview Home as a personal care attendant from April 1997 until July 8, 2003. On June 5, 2003, relator’s immediate supervisor, Laura Boelter, received a report from Margerie Brian, one of relator’s coworkers, that relator was sleeping while she was required to be working and training Brian. Boelter then confirmed Brian’s report with San Juanita Morales, another coworker of relator. Boelter spoke with relator about sleeping on the job, stating such actions were unacceptable and another occurrence would be cause for termination. Relator denied she was sleeping on the job.
On July 6, 2003, Boelter received a report from Morales that relator was again sleeping on the job. Morales stated relator was asleep for at least 20 minutes. Boelter then confronted relator about the second instance. Relator neither admitted nor denied this occurrence; rather, she wanted to know who reported the behavior. Thereafter, relator was terminated.
When relator applied for unemployment benefits, a DEED adjudicator determined relator was discharged for employee misconduct and denied her benefits. Relator appealed, and an ULJ affirmed the adjudicator’s decision. Upon further appeal, the commissioner’s representative affirmed the ULJ’s decision.
On certiorari appeal, a reviewing court must examine the decision of the commissioner’s representative, rather than that of the ULJ, and the decisions of the commissioner’s representative are accorded “particular deference.” Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995); Kalberg v. Park & Recreation Bd. of Minneapolis, 563 N.W.2d 275, 276 (Minn. App. 1997). This deference leads to a review of the “factual findings in the light most favorable to the commissioner’s decision and [this court] will not disturb them as long as there is evidence that reasonably tends to sustain those findings.” Schmidgall v. Filmtec Corp., 644 N.W.2d 801, 804 (Minn. 2002). This court will not be bound by the commissioner’s representative’s findings, however, if they do not have reasonable support. Marty v. Digital Equip. Corp., 345 N.W.2d 773, 775 (Minn. 1984).
Here, relator claims she was not sleeping on the job and there was a conspiracy to have her fired. The commissioner’s representative determined there was sufficient evidence showing relator was sleeping on the job on two occasions, and that such actions constituted employee misconduct under Minn. Stat. § 268.095, subd. 6(a) (Supp. 2003). As an initial matter, we note that the commissioner’s representative mistakenly relied on the 2003 statute by using the language:
Employment misconduct means any intentional, negligent, or indifferent conduct, on the job or off the job  that evinces a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee, or  that demonstrates a substantial lack of concern for the employment.
See id. The commissioner’s representative should have applied the law in effect at the time of the discharge, Minn. Stat. § 268.095, subd. 6(a) (2002). Brown v. Nat’l Am. Univ., 686 N.W.2d 329, 332 (Minn. App. 2004) (clarifying Bray v. Dogs & Cats Ltd. (1997), 679 N.W.2d 182, 186 (Minn. App. 2004)). Under each version of the statute, however, employment misconduct includes failure to abide by the standards of behavior an employer may expect. We note that relator does not dispute that sleeping on the job would constitute employee misconduct under either version of the statute. Instead, she denied in one instance that she had, in fact, been sleeping, and in another instance declined to either affirm or deny the accusation, thus raising only a factual issue. The statutory change is not relevant to the issue presented here.
An employee is not entitled to unemployment benefits if he or she was terminated based on employee misconduct. Minn. Stat. § 268.095, subd. 4(1) (2002). Boelter discharged relator after determining relator was sleeping on the job twice between June 5, 2003 and early July 2003. The commissioner’s representative determined the facts supporting these incidences were reliable and denied relator unemployment benefits.
Because the commissioner’s representative’s findings are accorded particular deference, and because such findings are reviewed in the light most favorable to the commissioner’s decision, we find that there is sufficient evidence to affirm the commissioner’s representative’s decision that relator was discharged for misconduct. See Schmidgall, 644 N.W.2d at 804 (“We review the commissioner’s factual findings in the light most favorable to the commissioner’s decision and will not disturb them as long as there is evidence that reasonably tends to sustain those findings.”).
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 Minn. Stat. § 268.095, subd. 6(a) (2002), states:
Employment misconduct means:
(1) 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; or
(2) negligent or indifferent conduct, on the job or off the job, that demonstrates a substantial lack of concern for the employment.