This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






Delerine L. Schaeppi,





H. M.  Smyth Co., Inc.,



Commissioner of Economic Security,



Filed April 24, 2001


Hanson, Judge


 Minnesota Department of Economic Security

Appeal No. 5280 00



Delarine L. Schaeppi, 63 Front Avenue, Apt. C, St. Paul, MN 55117 (relator - pro se);


H. M. Smyth Co., Inc., 1085 Snelling Avenue North, St. Paul, MN 55108 (respondent);


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


            Considered and decided by Hanson, Presiding Judge, Crippen, Judge, and Harten, Judge.


U N P U B L I S H E D  O P I N I O N


Relator challenges the decision by the commissioner's representative that she was discharged for employment misconduct and, thus, was disqualified from receiving unemployment benefits.  We affirm.


Relator Delerine Schaeppi was employed by respondent H.M. Smyth Co. (“Smyth”) from July of 1998 through May of 2000.  She was twice discharged from employment for excessive absenteeism during this period and twice reinstated upon intercession by her union and successful completion of a probationary period.  On December 6, 1999, Schaeppi was required to take a reasonable-suspicion drug test after co-workers reported her erratic behavior and slurred speech.  The test resulted in a positive reading for cocaine.

Pursuant to Smyth’s contract with Schaeppi’s union, she was evaluated by a chemical dependency counselor, who recommended outpatient treatment followed by aftercare.  Smyth then reached an agreement to continue Schaeppi’s employment on the condition that she successfully complete the recommended treatment and aftercare program.  Despite Smyth’s cooperation in altering Schaeppi’s work schedule to accommodate the aftercare program, Schaeppi was discharged from the program for missing multiple therapy sessions and conducting herself in a manner that had an adverse effect upon other group members.

On May 15, 2000, Smyth discharged Schaeppi for violation of its drug and alcohol policy by failing to successfully complete the chemical dependency treatment program.  Schaeppi’s application for unemployment benefits was denied based upon a finding by the Department of Economic Security of employment misconduct.  Following an evidentiary hearing, the unemployment law judge affirmed the department’s determination.  Schaeppi appealed to the Commissioner of Economic Security, whose representative affirmed the unemployment law judge’s decision.  Shaeppi then filed a writ of certiorari to this court.


This court’s review of whether an employee has committed employment misconduct presents a mixed question of fact and law.  Colburn v. Pine Portage Madden Bros., 346 N.W.2d 159, 161 (Minn. 1984).  We view the factual findings in a light most favorable to the decision, and we will not disturb those findings if there is evidence reasonably tending to sustain them.  White v. Metropolitan Med. Ctr., 332 N.W.2d 25, 26 (Minn. 1983).  Whether the commissioner's representative properly disqualified an employee from receiving unemployment benefits based on those findings is, however, a question of law on which we are "free to exercise [our] independent judgment."  Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).  We will affirm if the findings are supported by the evidence and if the conclusions of law are not contrary to law.  Colburn, 346, N.W.2d at 161.

Employment misconduct is defined as

(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.


Minn. Stat. § 268.095, subd. 6(a) (2000).


Viewed in a light most favorable to the decision, the findings of the commissioner’s representative are supported by the evidence.  Schaeppi tested positive for cocaine use on the job.  She was evaluated by a chemical dependency counselor, who recommended that she complete a treatment and aftercare program.  Her own behavior prevented her from completing that program.  These findings support the representative’s legal determination that Schaeppi committed employment misconduct and is thus disqualified from receiving unemployment benefits.

The supreme court has held that failure by an employee to make reasonable efforts to retain employment by attending a professionally advised chemical dependency treatment program amounts to misconduct.  Leslin v. Hennepin County, 347 N.W.2d 277, 279 (Minn. 1984); see also Minn. Stat. § 268.095, subd. 6(c) (defining employment misconduct in terms of a failure “to make consistent efforts to control the chemical dependency”).