This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).






Jeffrey J. Pothen,





Bloomington Super 8 Motel,



Commissioner of Economic Security,



Filed March 21, 2000


Shumaker, Judge


Department of Economic Security

File No. 2216UC99




Jeffrey J. Pothen, 12101 Grouse Street Northwest, #108, Coon Rapids, MN 55448 (relator-pro se)


William A. Bowen, 506 South Wilson Street, Aberdeen, South Dakota 57401-5082 (for respondent-employer)


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


            Considered and decided by Crippen, Presiding Judge, Klaphake, Judge, and Shumaker, Judge.


U N P U B L I S H E D   O P I N I O N




Relator Jeffrey J. Pothen appeals from the commissioner’s determination that he is disqualified from reemployment insurance benefits because of his misconduct in failing to prevent or adequately supervise a destructive party given by his daughter at a motel over which he had managerial authority.  We affirm.


Relator Jeffrey J. Pothen began employment as a regional manager of Bloomington Super 8 Motel, a motel chain, on November 29, 1998.  On March 3, 1999, the employer’s vice-president told Pothen that he must resign his position or he would be terminated.  Pothen resigned.

The employer offers three reasons for its action against Pothen.  First, some of the motel managers whom Pothen supervised complained that he was arrogant toward them.  The vice-president warned him about this conduct.  Second, Pothen failed to supervise a party that his daughter had at one of employer’s motels.  Third, Pothen attended meetings with the employer’s staff and franchisees in Las Vegas, and he fell asleep and snored during the meetings.

After Pothen applied for reemployment benefits, the commissioner’s representative ultimately determined that Pothen’s forced resignation was a discharge and that the discharge was for misconduct relating to the party Pothen’s daughter held.

The factual record before the commissioner’s representative revealed that Pothen’s daughter wanted to have her 18th birthday party on February 13, 1999, at one of the motels her father supervises.  Pothen tried to dissuade her by telling her the motel was full.  But she went to the motel without Pothen’s knowledge, identified herself as Pothen’s daughter, reserved three rooms, and stated that her father would pay for them.

When Pothen discovered that his daughter had rented the rooms he confronted her.  She assured him that there would be only a few friends attending and there would be no problems.  Pothen, in turn, assured the motel manager that there would be no problems and said he and his wife would stay on the premises to make sure things did not get out of control.

The party began early in the evening and ended at 3:00 a.m. the next day.  Seventy to 80 people attended.  Underage party-goers drank alcohol.  The party was noisy, causing other motel guests to complain that teenagers were running through the halls until early morning.  Several party-goers got into a fight in the motel lobby and the police had to be called.  One of the rooms was damaged, as was a motel guest’s van in the parking lot.

Pothen alleged that, except for a couple of brief periods away, he stayed on the premises throughout the duration of the party.  He indicated that he did not do any of the damage and is not responsible for damage caused by his adult daughter.  He stated that he successfully intervened in the fight and tried his best to keep things orderly.

The commissioner’s representative concluded that Pothen, as the employer’s regional manager, had a responsibility to protect his employer’s interests but failed to do so.  His failure fell below the standard of conduct the employer had a right to expect of Pothen, and, as such, constituted misconduct.


On appeal, we review the decision of the commissioner’s representative, not the decision of the reemployment insurance judge.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  In reviewing a decision of the commissioner’s representative our scope of review is very narrow.  Markel v. City of Circle Pines, 479 N.W.2d 382, 383 (Minn. 1992).  Findings of fact are viewed in the light most favorable to the decision and will not be disturbed if there is evidence reasonably tending to sustain them.  Id. at 383-84.  The ultimate determination whether an employee committed misconduct, however, is a question of law on which this court is free to exercise its independent judgment.  Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).

            The issue in this case is whether Pothen committed misconduct within the meaning of Minn. Stat. § 268.095, subd. 6 (1998).  An employee who is discharged from employment is not disqualified from receiving benefits, unless the employee was discharged because of misconduct that interfered with and adversely affected that employment.  Minn. Stat. § 268.095, subd. 4(1) (1998).  Misconduct is defined by statute as intentional conduct showing a disregard for:

(1) the employer’s interest;

(2) the standards of behavior that an employer has the right to expect of the employee;  or

(3) the employee’s duties and obligations to the employer.  Misconduct also includes negligent conduct by an employee demonstrating a substantial lack of concern for the employment.  Inefficiency, inadvertence, simple unsatisfactory conduct, or poor performance as a result of inability or incapacity are not misconduct.


Minn. Stat. § 268.095, subd. 6; see also Tilseth v. Midwest Lumber Co., 295 Minn. 372, 374-75, 204 N.W.2d 644, 646 (1973) (defining misconduct as “evincing such willful or wanton disregard of an employer’s interests as found in deliberate violations or disregard of standards of behavior which the employer has a right to expect of his employee * * * 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 determining whether an employee has committed disqualifying misconduct, this court considers:

(1) whether an employee deliberately violated standards of behavior which the employer has a right to expect of its employee, (2) whether an employee’s conduct adversely affected the business or other employee’s morale, and (3) whether an employee ignored past warnings.


Ress, 448 N.W.2d at 524 (citing Auger v. Gillette Co., 303 N.W.2d 255, 257 (Minn. 1981)).

            Here, Pothen claims that his employer never informed him that his resignation was because he committed misconduct.  As support for his argument he relies on this court’s unpublished opinion Niederer v. Super 8 Motel, No. C4-97-1340 (Minn. App. Feb. 10, 1998).  Because Niederer is neither on point nor controlling it is not necessary to address that portion of his argument.  See Minn. Stat. § 480A.08, subd. 3(b) (1998) (unpublished decisions are not precedential).

Additionally, throughout his argument Pothen challenges the commissioner’s representative’s findings and credibility determinations.  An appellate court reviews “the findings of the commissioner or the commissioner’s representative, not those of the referee, even though those findings might involve witness credibility.”  Tuff, 526 N.W.2d at 51 (citing Semanko v. Department of Employment Servs., 309 Minn. 425, 428, 244 N.W.2d 663, 665 (1976)).  We will uphold a commissioner’s representative’s findings of fact, even if they conflict with those of the referee, if the evidence reasonably supports them.  Ress, 448 N.W.2d at 523.

There is evidence that Pothen’s daughter reserved motel rooms and said that Pothen would pay for them.  Had Pothen inquired of the motel manager he would have learned this and could have prevented the party altogether by refusing to pay for the rooms.  The evidence shows that when the party went forward with numerous teenagers in attendance and with underage alcohol consumption, Pothen did nothing but stand by in case there was a problem.  He did not directly supervise the party, disallow the drinking, try to quell the noise, or even speak to his daughter about the situation.

An employer has a right to expect that a managerial employee will protect the employer’s business interests.  In the context of this case, the employer had a right to expect that Pothen, as regional manager, would take clear and strong action to prevent illegal alcohol consumption, excessive noise, and property damage from occurring on the motel premises.  Because Pothen’s inaction evinces a disregard of his employer’s interests, he committed misconduct as defined by Minn. Stat. § 269.095, subd. 6.  The commissioner’s representative did not err in disqualifying Pothen from reemployment insurance benefits.