This opinion will be unpublished and

may not be cited except as provided by

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




Diane M. Lueck,



Byerly's, Inc.,


Commissioner of Economic Security,


Filed December 16, 1997


Schumacher, Judge

Department of Economic Security

File No. 2360UC97

Allen R. Webb, 501 East Highway 13, Suite 114, Burnsville, MN 55337 (for relator)

Byerly's, Inc., 401 West 98th St., Bloomington, MN 55420 (respondent)

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

Considered and decided by Schumacher, Presiding Judge, Crippen, Judge, and Holtan, Judge.**

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



Relator Diane M. Lueck appeals from a decision of the Department of Economic Security, arguing the Commissioner's representative erred in determining that Lueck was disqualified from receiving reemployment insurance benefits because she was terminated for misconduct. We affirm.


Lueck worked for Byerly's from October 12, 1993 through December 20, 1996. Byerly's has a policy forbidding alcohol consumption during working hours, and that violation of the policy may result in disciplinary action, including termination.

On August 31, 1994, Byerly's warned Lueck in writing about alcohol consumption during working hours. Byerly's required that Lueck complete a treatment program as a condition of continued employment. Lueck completed the treatment program in late 1994. Lueck attended aftercare weekly for six months. Lueck also began attending weekly AA meetings and had attended AA meetings on a regular basis up to the time of her termination.

On August 18, 1995, Lueck was again warned about alcohol consumption at work. Lueck admitted that she began drinking again shortly after the aftercare program ended in mid-1995 and continued drinking thereafter. Lueck admits having an alcohol problem and continues to attend AA meetings.

Byerly's general manager testified that on December 17, 1996, Lueck was incoherent, stumbling, and could not continue working. Byerly's sent Lueck home. Byerly's conducted an investigation. Lueck admitted she drank alcohol during a break. Byerly's workers found a plastic Tupperware container with Lueck's belongings that contained gin. Lueck was terminated on December 20, 1996.

Lueck filed for reemployment insurance benefits, but was disqualified because the Department concluded Lueck was discharged for misconduct. Lueck appealed and the reemployment insurance judge reversed the disqualification, concluding Lueck suffered from alcoholism, was in treatment and AA, and therefore had made reasonable efforts to retain her employment. Byerly's appealed and the commissioner's representative reversed the reemployment insurance judge, concluding Lueck did not make reasonable efforts to retain employment. Lueck appeals.


This court reviews the findings of the Commissioner's representative, not those of the reemployment insurance judge, even when those findings involve witness credibility. Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995). The Commissioner's representative's findings should be viewed in the light most favorable to the decision, and should not be overturned if there is evidence in the record that reasonably tends to sustain those findings. Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989). The ultimate determination whether an employee committed misconduct is, however, a question of law upon which this court is "free to exercise its independent judgment." Id.

An employee who is discharged for misconduct is disqualified from receiving reemployment compensation benefits. Minn. Stat. § 268.09, subd. 1(b) (1996). The supreme court has adopted the following definition of "misconduct":

" * * * [T]he intended meaning of the term 'misconduct' * * * is limited to conduct evincing such willful 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. On the other hand, mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed 'misconduct' * * * ."

Tilseth v. Midwest Lumber Co., 295 Minn. 372, 374-75, 204 N.W.2d 644, 646 (1973) (quoting Boynton Cab Co. v. Neubeck, 237 Wis. 249, 259, 296 N.W. 636, 640 (1941)).

Lueck admitted she consumed alcohol while at work. Lueck violated a known workplace rule, thereby disregarding her employer's interests. The commissioner's representative did not err in concluding Lueck was discharged for misconduct.

There is an exception to disqualification for misconduct, however, where the

claimant is separated from employment due to personal, serious illness provided that the claimant has made reasonable efforts to retain employment.

A claimant who is separated from employment due to the claimant's illness of chemical dependency which has been professionally diagnosed or for which the claimant has voluntarily submitted to treatment and who fails to make consistent efforts to maintain the treatment the claimant knows or has been professionally advised is necessary to control that illness has not made reasonable efforts to retain employment.

Minn. Stat. § 268.09, subd. 1(c)(2) (1996) (emphasis added).

In this case, it appears Lueck suffers from alcoholism. The record shows, however, that Lueck started to drink soon after her six-month aftercare program ended in mid-1995. Lueck testified she continued to drink even though she regularly attended weekly AA meetings. We conclude Lueck is required to make consistent efforts to maintain her treatment. Leslin v. Hennepin County, 347 N.W.2d 277, 279 (Minn. 1984). Based on these particular facts, we conclude that continuing to drink while attending AA meetings, without more, is not a consistent effort in maintaining treatment. Thus, Lueck did not make reasonable efforts to retain her employment, and therefore is disqualified from receiving benefits.