This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Kip G. Sundgaard,



Stroh Brewery Company,


Commissioner of Economic Security,


Filed September 9, 1997


Amundson, Judge

Department of Economic Security

File No. 9797UC96

Kip G. Sundgaard, 8348 Keats Avenue South, Cottage Grove, MN 55016 (pro se relator)

Stroh Brewery Company, c/o R.E. Harrington, Inc., P.O. Box 1160, Columbus, OH 43216 (pro se respondent)

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

Considered and decided by Huspeni, Presiding Judge, Kalitowski, Judge, and Amundson, Judge.



Relator Kip Sundgaard challenges the commissioner's representative's determination that he was disqualified from receiving reemployment insurance benefits because he was discharged from employment for misconduct. We affirm.


Relator Skip Sundgaard worked full-time for employer respondent Stroh's Brewery. Sundgaard earned $16.06 per hour and worked 37.5 hours per week. Stroh's posted a work rule that any employee found sleeping during work hours will be discharged from employment.

On October 2, 1996, Sundgaard, who was working the night shift, took a lunch break at 2:00 a.m. On his break, he went into the shower room and laid down on a bench to rest. Sundgaard fell asleep until he was awakened by his supervisor at 3:05 a.m., 35 minutes after his scheduled break. Sundgaard offered no excuse for sleeping and was sent home from work by his supervisor.

That same day, Sundgaard was discharged from employment at Stroh's for sleeping during scheduled work time. During an investigatory meeting that day, Sundgaard offered no excuse for sleeping during work time, except that he had a headache. At a grievance meeting on October 11, 1996, he also failed to provide a reason why he was sleeping during work hours.

The Minnesota Department of Economic Security denied Sundgaard's claim for reemployment insurance benefits. On appeal, the reemployment insurance judge decided Sundgaard was entitled to benefits. The commissioner's representative reversed that decision, stating that it was misconduct for Sundgaard to sleep during work hours. Sundgaard appeals the decision of the commissioner's representative.


An individual who is discharged from employment for misconduct is disqualified from receiving reemployment insurance benefits. Minn. Stat. § 268.09, subd. 1(b) (1996). Whether an employee committed misconduct is a mixed question of fact and law. Colburn v. Pine Portage Madden Bros., Inc., 346 N.W.2d 159, 161 (Minn. 1984). This court will affirm the commissioner's representative's factual findings "if there is evidence reasonably tending to sustain those findings," but the ultimate issue of disqualification is a question of law subject to de novo review. Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).

"Misconduct" has been defined by Minnesota courts as

conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer.

In re Tilseth's Claim, 295 Minn. 372, 374-75, 204 N.W.2d 644, 646 (1973) (citation omitted). An employee's refusal to comply with an employer's request constitutes misconduct when the request was reasonable and did not impose an unreasonable burden on the employee. Soussi v. Blue & White Serv. Corp., 498 N.W.2d 316, 318 (Minn. App. 1993). What is reasonable depends on the circumstances of each case. Id.

Sundgaard argues that the commissioner's representative erred in its decision to disqualify him from reemployment insurance benefits. Sundgaard contends that he did not intend to sleep during work hours, and that his reasons for sleeping were credible. Sundgaard also contends that he did not give an excuse to his supervisor for sleeping past his break because his supervisor had "left before [Sundgaard] had a chance."

The commissioner's representative determined that Sundgaard's sleeping during work hours constituted misconduct, and that Sundgaard's explanation for sleeping during work hours was not credible, as he was "simply now attempting to make up an excuse." The commissioner's representative explained that

[w]hile [Sundgaard] may not have intended to sleep past his break time [Sundgaard] is responsible for the natural consequences which flow from his own conduct. [Sundgaard] laid down on the bench to sleep, and he is responsible for his sleeping past his scheduled break time.

Accordingly, the commissioner's representative determined that Sundgaard should be disqualified from collecting reemployment insurance. We agree.

The record includes adequate evidence to sustain the commissioner's representative's findings on the events that entered into the determination of Sundgaard's misconduct. The record shows that Stroh's had a well-known and reasonable work rule that employee's were not to sleep during work hours. The record also shows that Sundgaard willfully violated that rule by sleeping 35 minutes past his break during work hours without offering a valid excuse. Thus, the commissioner's representative properly determined that Sundgaard was disqualified from receiving reemployment insurance benefits because he was discharged from employment for misconduct.

Sundgaard makes additional arguments in his pro se brief for reversing the commissioner's representative's decision. Because these issues were not addressed by the commissioner's representative, Sundgaard may not raise them now for the first time on appeal. See Wesley v. Durance Corp., 363 N.W.2d 858, 859 (Minn. App. 1985) (issue not raised before the commissioner may not be raised for first time on appeal).