This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






Lawrence R. Pepin,





Minnesota Department of Administration,



Commissioner of Economic Security,



Filed February 4, 2003


Gordon W. Shumaker, Judge


Department of Economic Security

File No. 11898 01


Lawrence R. Pepin, 1316 18th Avenue Southeast, Forest Lake, MN 55025 (pro se appellant)


Minnesota Department of Administration, 50 Sherburne Avenue, St. Paul, MN 55155 (respondent)


Linda Alison Holmes, Department of Economic Security, 390 North Robert Street, St. Paul, MN 55101 (for respondent commissioner)



Considered and decided by Minge, Presiding Judge, Lansing, Judge, and Shumaker, Judge.



U N P U B L I S H E D   O P I N I O N


            Relator Lawrence R. Pepin challenges the Minnesota Department of Economic Security (MDES) commissioner’s representative’s ruling that he was discharged from working at the Minnesota Department of Administration (DOA) for employment misconduct.  Because we find that the commissioner’s representative properly found that Pepin was discharged for employment misconduct, we affirm.


            In 1980, relator Lawrence R. Pepin began working at the DOA as a local area network (LAN) administrator.  As a LAN administrator, Pepin’s job entailed setting up computers and networks in his division, troubleshooting, archiving project information, setting up databases, and maintaining the computers. 

            In December 2000, Pepin filed a Fair Labor Standards Act (FLSA) claim for 110 hours of overtime pay.  While the DOA reviewed the claim, Pepin downloaded the e-mail account of his supervisor John Retzer on five occasions.  This gave Pepin the ability to access, read, and print e-mails in the account without Retzer’s knowledge or permission.  The DOA rejected Pepin’s overtime claim in mid-April 2001.  Division director Heidi Myers told Pepin that Retzer was the “sole person” who made this decision.  Also, Pepin had downloaded Myers’s e-mail account on August 21, 2000 and had since maintained a link to her e-mail account that allowed him to access, read, and print her e-mails without her knowledge.  Pepin’s action in downloading his supervisors’ e-mail accounts without their knowledge violated DOA’s policy and breached DOA’s trust.  Pepin claims that he downloaded his supervisors’ e-mail accounts to troubleshoot problems with the accounts as requested, but the commissioner’s representative found he was doing this to view their e-mails regarding his overtime FLSA claim.

            On April 26, 2001, as part of Pepin’s job, he downloaded former DOA employee Brian Shablow’s e-mail account to archive all of his project files before completely erasing Shablow’s files and rebuilding the computer programs for a different user, but he did not download the rest of Shablow’s hard drive.  Pepin recreated the e-mails that Shablow had sent and received, and then placed the 400 e-mails in order that he could view just the 30 e-mails between Shablow and Myers.  Pepin argued that, when archiving, he had to proceed document-by-document through Shablow’s e-mail account to find program files that needed to be archived, but the DOA contended that he did not need to read the e-mails to archive them.  While looking through Shablow’s e-mail account, Pepin viewed personal e-mails between Shablow and Myers that suggested a romantic relationship. 

            That same day, DOA assistant director Larry Whitcomb asked Pepin for access to Shablow’s computer to look for missing project files that Shablow had worked on.[1]  Whitcomb was not Pepin’s direct supervisor.  Pepin gave Whitcomb access to Shablow’s computer without first getting permission from either Retzer or Myers, his direct supervisors.  The commissioner’s representative found that Pepin knew that he did not have authority to provide Whitcomb with access to other employees’ computers because he later asked Myers for such authority. 

            Pepin contends that a few days later, he overhead a co-employee questioning Whitcomb about whether Shablow had been asked to leave his job at the DOA.  Pepin argues that this conversation made him believe that Myers, who was in a supervisory position during part of the relationship, had sexually harassed Shablow, even though their e-mails showed a consensual relationship.  Pepin printed approximately 30 e-mails between Shablow and Myers, gave these e-mails to DOA ethics director Kirsten Cecil, and reported his concern that Myers had sexually harassed Shablow.  He also stated that he was offended by Shablow’s and Myers’s inappropriate personal use of state property and that it was his duty to report sexually explicit e-mails.  A few days later, Whitcomb also turned the exact same e-mails into the DOA human-resource director, explaining that he found them on Shablow’s e-mail account.

            The DOA became concerned about how both Pepin and Whitcomb obtained the same e-mails, so it suspended Pepin while it conducted an investigation of Pepin’s work and home computers.  Pepin’s state-issued home computer had been used extensively for personal and family matters, including accessing pornographic web sites, which Pepin knew was against DOA policy.  The DOA concluded that Pepin and Whitcomb had the same e-mails because Pepin had shared them with Whitcomb; but Pepin argued that it was a coincidence that they submitted exactly the same e-mails and denied that he had ever told Whitcomb about these e-mails or given him copies.

            On August 30, 2001, the DOA terminated Pepin for violating DOA’s policies, procedures, and ethical practices by accessing his supervisors’ e-mails without their knowledge or authorization; disseminating Shablow’s and Myers’s personal e-mails without authorization; and providing Whitcomb with access to Shablow’s computer without authorization. 

Pepin applied to MDES for unemployment benefits.  MDES rejected his request, concluding that Pepin had been discharged for employment misconduct under Minn. Stat. § 268.095, subds. 4, 6 (2000).[2]  Pepin appealed this determination, and an unemployment law judge found that Pepin was discharged for reasons other then employment misconduct.  Thus, Pepin qualified to receive unemployment benefits.  The DOA appealed this determination, and the commissioner’s representative reversed the unemployment law judge.  The commissioner’s representative found that Pepin was discharged because of employment misconduct, and, therefore, was not qualified for unemployment benefits.  Pepin appeals the commissioner’s representative’s decision.


            When reviewing MDES’s determination about an employee’s qualifications for unemployment benefits, we review the commissioner’s representative’s findings rather than the unemployment law judge’s findings.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  Under Minn. Stat. § 268.105, subd. 1(b) (2002), the law does not place a burden of proof on either party. We have a very narrow standard of review that requires the commissioner’s representative’s

findings be viewed in the light most favorable to the decision, and if there is evidence reasonably tending to sustain them, they will not be disturbed.


White v. Metro. Med. Ctr., 332 N.W.2d 25, 26 (Minn. 1983). 

The commissioner’s representative’s findings are a mixed question of law and facts.  Colburn v. Pine Portage Madden Bros., Inc., 346 N.W.2d 159, 161 (Minn. 1984).  The commissioner’s representative determines the fact question of whether an employee committed the alleged acts of misconduct.  Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  And we review de novo whether the employee’s actions constituted employment misconduct and disqualified the employee from receiving unemployment benefits under Minn. Stat. § 268.095 (2002).  Ress v. Abbott N.W. Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).  We do not determine whether the employee should have been terminated, but whether the employee should have received unemployment-compensation benefits.  Id.

1.         Support for factual findings in the record

             The first issue is whether the commissioner’s representative’s findings that Pepin downloaded his supervisors’ e-mail accounts to view their communications about his FLSA claim, accessed and disseminated personal e-mails between Shablow and Myers, and allowed Whitcomb to access Shablow’s e-mail account without prior authorization are reasonably supported by the record.  The factual record reasonably supports the commissioner’s finding of all three acts of alleged misconduct and that the relevant facts are not in dispute.

The parties do dispute Pepin’s explanations for his actions.  Pepin contends that he accessed his supervisors’ e-mail accounts to troubleshoot them; that he did not share with Whitcomb Shablow’s and Myers’s e-mails; and that he would have been insubordinate if he had not given Whitcomb access to Shablow’s computer, since Whitcomb was a supervisor.  The DOA contends that Pepin’s actions were motivated by his desire to view his supervisors’ communications regarding his FLSA claim and to embarrass Myers.  This is a credibility determination that we must defer to the commissioner’s representative.  See Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995). 

The commissioner’s representative found Pepin’s explanation for downloading his supervisors’ e-mail accounts not to be credible, and we will not disturb that finding.  Also, the record reasonably supports the finding that Pepin shared Shablow’s and Myers’s e-mails with Whitcomb because Pepin and Whitcomb turned in exactly the same e-mails.  Lastly, the record supports the conclusion that Pepin knew he was not allowed to give Whitcomb access to other employees’ computers. 

2.         Application of Minn. Stat. § 268.095 

            The second issue is whether as a matter of law Pepin’s acts constituted employment misconduct under Minn. Stat. § 268.095, subd. 6(a)(1).  Minn. Stat. § 268.095, subd. 4(1), states that an employee is disqualified from receiving unemployment benefits if he was discharged for employment misconduct.  Employment misconduct is defined as

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.


Minn. Stat. § 268.095, subd. 6(a)(1).  But employment misconduct does not include “[i]nefficiency, inadvertence, simple unsatisfactory conduct, poor performance because of inability or incapacity * * * .”  Id., subd. 6(b).

            The supreme court has recently held that to find employment misconduct there must be evidence that the employee’s actions were “(1) [] intentional and (2) disregard[ed] standards of behavior the employer has a right to expect or the employee’s duties and obligations to the employer.”  Houston v. Int’l Data Transfer Corp., 645 N.W.2d 144, 149 (Minn. 2002).  Houston defines conduct that is intentional to be “deliberate” and “not accidental.”  Id.  The evidence shows that Pepin’s actions in downloading Retzer’s and Myers’s e-mail accounts without their knowledge, allowing Whitcomb to access Shablow’s computer, and disseminating Shablow and Myers’s personal e-mails to Whitcomb were deliberate. 

            Furthermore, the commissioner’s representative properly found that Pepin’s actions disregarded the standards of behavior the DOA had a right to expect of its employees.  Pepin viewed his supervisors’ e-mails without authorization, in disregard of the DOA’s expectation that Pepin would limit his computer skills to his job duties and would not breach the DOA’s policies.  Pepin also disregarded the expected standard of behavior when he assembled and read Shablow’s and Myers’s personal e-mails and then disseminated those e-mails to Whitcomb and Cecil.

Lastly, Pepin’s act of giving Whitcomb access to the computer disregarded the standard of behavior DOA should expect, because Whitcomb was not Pepin’s direct supervisor and Pepin knew he did not have authority to give Whitcomb access to other employees’ e-mails.  Thus, we hold that Pepin was discharged for employment misconduct under Minn. Stat. § 268.095, subd. 6(a)(1), and is disqualified from receiving unemployment-compensation benefits.


[1]   The parties do not dispute that Whitcomb accessed Shablow’s computer on April 26, 2001, so we find that the commissioner’s representative erroneously cited August 26, 2000, as the date Whitcomb viewed Shablow’s e-mail account.

[2] We note that the MDES decision was under Minnesota Statutes 2000 and that the language in Minn. Stat. § 268.095, subds. 4, 6 (2002), is identical to the earlier version. See McClelland v. McClelland, 393 N.W.2d 224, 226 (Minn. App. 1996) (stating that this court is to apply the law in effect at the time it renders its decision unless doing so would alter a party’s rights).