This opinion will be unpublished and

may not be cited except as provided by

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







Craig A. Mellin,





Capital City Properties Corp,



Commissioner of Employment and Economic Development,



Filed February 1, 2005


Randall, Judge


Department of Employment and Economic Development

File No. 17027 03



Craig A. Mellin, 401 Sibley Street, Apt. A-105, Saint Paul, MN 55101-1903 (pro se relator)


Capital City Properties Corp, St. Paul Loc, C/O ADP Unemployment Group, James E. Frick, Inc., P.O. Box 66744, Saint Louis, MO 63166-6744 (respondent)


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


            Considered and decided by Shumaker, Presiding Judge; Randall, Judge; and Halbrooks, Judge.


U N P U B L I S H E D   O P I N I O N


            On certiorari appeal, relator challenges the decision of the commissioner’s representative that he was disqualified for unemployment benefits.  We affirm.


            Craig Mellin, relator, was hired by Capital Cities Properties Corp, employer, on February 9, 2001.  Relator worked under a union contract that required a four-step progressive disciplinary process.  The steps, in order of application, are: (1) verbal warning; (2) written warning; (3) suspension; and (4) discipline up to and including discharge from employment.  The union's disciplinary policy allowed only offenses within the prior eighteen months to be considered in determining the employee's required level of discipline.  Relator was aware of this disciplinary process.  And relator was cited for a number of employment violations throughout the term of his employment, all of which were documented. 

            The first violation in the progression that led to his termination took place on May 11, 2003, when relator received a verbal warning for failing to complete his assigned duties.  At the time, relator alleged he and other co-workers were allowed to go home early to observe Mother's Day.  However, relator did not dispute or disagree with the warning.  Also, in a May 2003 meeting with management, relator disclosed his medical condition, Attention Deficit Disorder (ADD), and the medications that he was taking.  Management directed relator to bring these issues to the attention of Human Resources (HR), per company procedure.  Relator deliberately neglected to follow this directive.  

            The second violation took place in June 2003.  Management had displayed a sign on an office window reminding staff of the need to punch in and out for lunch breaks each day.  This information was also discussed during a staff meeting.  Relator failed to punch out for lunch on eight days between June 14 and June 22, 2003.  He testified that, even though he knew of the requirement, he did not punch out because he was taking care of work that still needed to be completed.  But he also admitted that he would leave early to compensate for not taking a lunch break.  Relator received a written warning for this incident.

             The third violation took place on August 9, 2003.  Relator alleged that he could not work with the temporary staff on duty.  The record indicates that relator wanted to clean up public areas in the hotel before starting the day’s task list, and other staff members did not assist him.  Relator abandoned his duties, and, despite a manager’s request that he return to the facility, he walked out less than four hours into his scheduled eight-hour shift.  Relator was suspended without pay for three days as a result of this incident.  He was also informed that any further incidences would result in disciplinary action up to and including termination of his employment 

            The fourth violation took place on September 8, 2003.  The record indicates that relator was taking a new medication that made him drowsy.  He stated that he considered calling in to work and staying home that day, but that he would not have been able to provide his employer with the requisite advance notice to avoid discipline.  Relator testified that he spoke with John Kieser, director of banquet and convention services, that morning and informed him he was taking new medication that made him drowsy; Kieser disputed this at the appeal hearing.  Relator and another employee were in charge of setting up a banquet room.  While the other employee left to retrieve some needed supplies, relator put his head down on a table to rest; Kieser walked in and observed relator with his head down.  Kieser suspended relator pending an investigation of the incident.  On September 15, 2003, relator was terminated from his employment with Capital City Properties Corp.

            Relator established an account with the Department of Employment and Economic Development (department) in September 2003, and the department adjudicator subsequently determined that relator was disqualified to receive unemployment compensation.  Relator appealed, and the unemployment law judge (ULJ) determined that relator was qualified to receive unemployment benefits because relator did not commit employment misconduct.[1]  The commissioner’s representative then reversed the determination of the ULJ.  This certiorari appeal followed.



            An appellate court must review the decision of the commissioner's representative, rather than that of the unemployment law judge.  Kalberg v. Park & Recreation Bd., 563 N.W.2d 275, 276 (Minn. App. 1997).  Decisions of the commissioner’s representative are accorded “particular deference.”  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  And an appellate court will “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.”  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  Whether an employee committed an act alleged to be employment misconduct is a fact question, but the interpretation of whether that act is employment misconduct is an issue of law.  Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  This court reviews questions of law de novo.  See Schmidgall, 644 N.W.2d at 804.

A.        Findings of Fact

            Here, the commissioner’s representative’s factual findings are not largely in dispute and are supported by the record.  The commissioner's representative made a number of factual findings that led to its determination that relator committed employment misconduct.  Notably, the commissioner's representative found that the employer had complied with the union’s progressive disciplinary system during the course of its employment relationship with relator.  Specifically, the commissioner's representative found that relator: (1) received a verbal warning on May 11, 2003 for failing to complete his assigned duties; (2) received a written warning for failing to punch out and take a lunch break on eight days from June 14 through June 22, 2003; (3) received a three-day suspension on August 8 for failing to complete work duties and walking off the job early on August 3, 2003; and (4) received a suspension and eventual termination from employment, after an investigation found that relator fell asleep while working on September 8, 2003, as a result of prescribed medication that had sedation side-effects.  The commissioner’s representative did not abuse its discretion in making these findings as they have reasonable support in the record.

B.        Determination of Employment Misconduct

            Relator disputes the commissioner’s determination that he committed employment misconduct.  He argues that, because his drowsiness was a result of a prescribed medication, he should not have been deemed disqualified from unemployment benefits.  An applicant who is discharged from employment by an employer shall not be disqualified from any unemployment benefits except when the applicant is discharged because of employment misconduct as defined in subdivision 6 of the unemployment statute.  See Minn. Stat. § 268.095, subd. 4 (Supp. 2003).  Employment misconduct is defined per statute as: 

(a) [A]ny intentional, negligent, or indifferent conduct, on the job or off the job (1) that evinces a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee, or (2) that demonstrates a substantial lack of concern for the employment.


Minn. Stat. § 268.095, subd. 6(a) (Supp. 2003).[2] 

The record supports the commissioner’s representative’s determination that relator committed employment misconduct due to repeated violations of the employer’s policies.  Following the commissioner's representative's findings of fact, the following reason was given for the decision:

[Relator] was subject to an increasingly serious step of disciplinary actions due to repeated violations of the employer’s policies.  He was made well aware that his job was in jeopardy, and that he was to commit no more infractions.  If [relator] was too tired to do his job on September 8, 2003, he should have informed the employer of this, rather than taking rest while on the clock.  While [relator] may have been tired due to his medication, we find that sitting down and putting his head down to rest under these circumstances demonstrated a serious lack of concern for his employment.


This reasoning reflects a proper review and application of the facts of this case to the statutory requirements.

            This is not a case where the employer terminated an employee because of a single incident where the employee was ill and taking medication.  The employer allowed relator a number of chances to continue his employment after a number of employment violations, which are documented in the record.  Relator was on notice that that he was at a stage in his employer’s disciplinary process where another violation would likely result in termination.  Further, the record reflects that relator brought his ADD condition to the attention of management during a May 2003 meeting.  At that time he was told to bring the issue to HR.  Relator failed to follow this directive.  That failure reflects an indifference on the part of relator to the standard that a reasonable employer should expect from an employee.  See Minn. Stat. § 268.095, subd. 6(a)

            We affirm the decision of the commissioner’s representative.




[1]  During the hearing in front of the ULJ, relator testified that in a meeting in May 2003, relator spoke to management about his medical condition, ADD and the medications he was taking.  The managers directed that he discuss and document his concerns with HR, instead of them.  Relator conceded that he deliberately failed to go to HR as directed, because he didn’t “work with [the HR person]” and because he had already told the managers.  

[2]  Amendments made to Minn. Stat. § 268.095 in 2003 changed the statutory definition of “employment misconduct.”  This court recently held that whether specific conduct amounts to employment misconduct, must be determined by the definition in place at the time of the employee's discharge and not the definition at the time of adjudication.  Bray v. Dogs & Cats Ltd., 679 N.W.2d 182, 186 (Minn. App. 2004).   Because relator was discharged on September 15, 2003, after the August 1, 2003 effective date of the amendments, the 2003 statute applies in this case.