This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).








Gregory D. Ellis,





Ramsey County,



Department of Employment and Economic Development,



Filed September 19, 2006


Wright, Judge


Department of Employment and Economic Development

File No. 18438-05



Gregory D. Ellis, 1621 St. Anthony Avenue, Apartment 9, St. Paul, MN 55104 (pro se relator)


Susan Gaertner, Ramsey County Attorney, Jeffrey G. Stephenson, Assistant County Attorney, 560 Government Center, 50 West Kellogg Boulevard, St. Paul, MN 55102 (for respondent Ramsey County)


Linda A. Holmes, Lee B. Nelson, Department of Employment and Economic Development, 332 Minnesota Street, Suite E200, St. Paul, MN 55101-1351 (for respondent Department)



            Considered and decided by Ross, Presiding Judge; Shumaker, Judge; and Wright, Judge.

U N P U B L I S H E D   O P I N I O N


Relator challenges the decision of the unemployment law judge that he is disqualified from receiving unemployment benefits because he was discharged for employment misconduct. We affirm.


 Relator Gregory Ellis worked for respondent Ramsey County as a corrections officer from March 1994 until his discharge on November 22, 2005.  Ellis worked the 11:00 p.m. to 7:00 a.m. night shift.  The primary reason for his discharge was sleeping while on duty.[1]  Ellis’s discharge followed disciplinary incidents for sleeping while on duty in 1996,[2] in October 2004, and in April 2005.  Ellis also had been reassigned without disciplinary action in December 2004 based on inmates’ complaints that his snoring kept them awake at night.

Ellis’s discharge was reviewed by the Ramsey County Personnel Review Board on September 22, 2005.  Ellis was represented by counsel.  The board made findings and concluded that the county had produced substantial credible evidence of misconduct by Ellis.

Ellis applied for unemployment benefits but was determined to be disqualified because he was discharged for employment misconduct.  After a hearing, the unemployment law judge (ULJ) determined that Ellis committed employment misconduct by sleeping while on duty.  On Ellis’s request for reconsideration, the ULJ affirmed the decision as factually and legally correct.  This certiorari appeal followed.


We review the ULJ’s decision to determine if the factual findings are supported by substantial evidence in view of the entire record and if the decision is a correct application of the law.  Minn. Stat. § 268.105, subd. 7(d) (Supp. 2005).  Whether an employee committed misconduct is a mixed question of fact and law.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  Whether the employee committed an act alleged to be misconduct is a question of fact, which we review for substantial support in the record; but whether that act is employment misconduct is a question of law, which we review de novo.  Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996); Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997). 

An employee who is discharged from employment is disqualified from receiving unemployment benefits if the employee was discharged for employment misconduct as defined by Minn. Stat. § 268.095, subd. 6 (2004).  Employment misconduct means “any intentional, negligent or indifferent conduct . . . (1) that displays clearly a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee, or (2) that displays clearly a substantial lack of concern for the employment.”  Id. 

  The ULJ made findings of fact and decided that a preponderance of the evidence established that Ellis had fallen asleep at work on “numerous occasions” and “his conduct is even more inappropriate and serious given the nature of his position and the safety issues raised by his inattentiveness.”  A review of the transcript and the file supports the ULJ’s findings of fact.  The testimony of Superintendent Art Cavara and Assistant Superintendent Allen Carlson provides ample evidence supporting the three disciplinary incidents and the reassignment.  Cavara stated that sleeping on the job justified the discharge because a sleeping officer jeopardizes the safety of the officer, his colleagues, and the inmates.  

Except for the first incident, Ellis denies the allegations of sleeping and snoring.  He argues that he is entitled to relief on appeal for three reasons.  First, the witness statements were “gossip” and should not have been accepted by the ULJ.  Second, his discharge was retaliation for his “bias report against Officer Meyer on August 9, 2004.”  And third, other nonminority officers have committed acts for which they were not terminated.  None of these arguments has merit, and we address each in turn. 

The ULJ was authorized to conduct the hearing as an evidence-gathering inquiry without conforming to the rules of evidence.  Minn. Stat. § 268.105, subd. 1(b) (Supp. 2005).  The witness statements that Ellis complains of were part of the employer’s file and were compiled as part of the employer’s investigation of the misconduct at issue in this unemployment-benefits action.  They are relevant and were properly considered by the ULJ.  Moreover, Ellis had ample opportunity to produce evidence to rebut the statements.  The record does not reflect that Ellis filed a “bias report” against Officer Meyer.  Indeed, Ellis reported Officer Meyer for making a statement to him about his snoring.  But the evidence does not indicate that Ellis alleged a racial basis for Officer Meyer’s statement.  As to Ellis’s claim that the employer treated nonminority officers more favorably, their treatment is not relevant to the issue before us—whether Ellis committed disqualifying employment misconduct under the unemployment-benefits law. See Sivertson v. Sims Sec., Inc., 390 N.W.2d 868, 871 (Minn. App. 1986) (affirming denial of benefits following discharge based on misconduct and holding that “[w]hether or not other employees violated those same rules and were disciplined or discharged is not relevant here”), review denied (Minn. Aug. 20, 1986).

On this record, there is substantial evidence supporting the ULJ’s findings of fact and those facts establish that Ellis was discharged for employment misconduct.  He is, therefore, disqualified from receiving unemployment benefits.


[1] Ellis’s record also contained a report that he had first denied and then admitted to changing the date on a doctor’s letter regarding a medical condition.  We do not address that matter, which did not factor into the disqualification finding by the unemployment law judge.

[2] The record reflects two different dates for Ellis’s first suspension for sleeping on duty.  Because Ellis does not dispute the fact, we adopt the date found by the unemployment law judge.