This opinion will be unpublished and

may not be cited except as provided by

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






Christine M. Sieben,





Wal-Mart Associates, Inc.,


Commissioner of Employment and Economic Development,




Filed April 27, 2004


Anderson, Judge


Department of Employment and Economic Development

File No. 5265 03



Mark R. Black, Black Law Office Ltd., Eastgate Business Center, Suite 209, 22 Wilson Avenue Northeast, P.O. Box 6038, St. Cloud, MN  56302 (for relator)


Wal-Mart Associates Inc., Owatonna Location, c/o Talx UCM Services, Inc., UC Express (SM), P.O. Box 283, St. Louis, MO  63166-0283 (respondent)


Lee B. Nelson, Katrina I. Gulstad, Minnesota Department of Employment and Economic Development, 390 Robert Street North, St. Paul, MN 55101 (for respondent commissioner)


            Considered and decided by Stoneburner, Presiding Judge; Anderson, Judge; and Hudson, Judge.


U N P U B L I S H E D  O P I N I O N




            Relator appeals the determination of the representative of the commissioner of employment and economic development that her employment was terminated for misconduct, arguing that the findings of fact of the commissioner’s representative are not supported by the record and that her knowing violation of company policy was not employment misconduct.  We affirm.


Relator was employed by respondent Wal-Mart Associates, Inc., as the bakery manager of Sam’s Club in St. Cloud.  Relator was trained on food handling procedures and was aware that Sam’s Club prohibited the selling of items beyond their sell-by date. 

            On January 23, 2003, relator’s supervisor, in a routine examination, observed that relator was using out-of-date syrup for fountain drinks.  The supervisor and a higher-ranking manager immediately advised relator that she must follow company policy and not use out-of-date syrup.  Despite both clear company policy and the oral directive of her superiors, relator was observed using out-of-date syrup in each of the next three weeks.  Relator testified that she had intentionally used out-of-date syrup in the third week because the product vendor told her that it was still fit for human consumption.  As to the two earlier weeks, relator testified that it was her responsibility to make sure the syrup was not out-dated but that she had not always done so because she was busy and forgot.

            The unemployment law judge ruled in favor of relator.  The commissioner’s representative reversed and ruled that relator had committed employment misconduct.  This appeal followed.


            Relator first challenges the commissioner’s representative’s finding that she knew that company policy forbade the use of out-of-date syrup and that she knowingly allowed such syrup to be used.  “We 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).  This court is to defer to the findings of the commissioner’s representative, not to the unemployment law judge.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  This court defers to the credibility determinations of the commissioner’s representative and does not independently evaluate witness credibility.  Heitman v. Cronstroms Mfg., Inc., 401 N.W.2d 425, 427 (Minn. App. 1987).

            There is support in the record for the finding that relator knew the company policy and knowingly allowed out-of-date syrup to be used.  There was undisputed testimony that relator’s supervisors had informed relator that she was not to use out-of-date syrup.  Thus, the commissioner’s representative was justified in finding that relator knew the company policy.  Relator testified that, after learning of the company policy and apparently because of this information, she called the product vendor who informed her that out-of-date syrup was still fit for human consumption.  As a result, relator intentionally used out-of-date syrup.  This testimony adequately supports the finding that relator knowingly allowed out-of-date syrup to remain in use, knowing that it was a violation of company policy.  Thus, appellant’s challenge to this finding fails.

            Relator also argues that she did not engage in intentional misconduct.  Intentional misconduct requires evidence that the conduct was intentional and that it was intended to or evinces an intent to ignore the employer’s reasonable standards.  Houston v. Int’l Data Transfer Corp., 645 N.W.2d 144, 150 (Minn. 2002).  Whether an act is misconduct is a question of law and is thus reviewed de novo.  Schmidgall, 644 N.W.2d at 804.  Usually, failing to follow an employer’s reasonable policies is misconduct.  Id.  “[A]n employee’s decision to violate knowingly a reasonable policy of the employer is misconduct.”  Id. at 806.  “A single incident can constitute misconduct when an employee deliberately chooses a course of conduct that is adverse to the employer.”  Id.

Relator’s argument, essentially, is that she was justified in using old syrup because she called the vendor after being reprimanded for not following company policy and was informed the syrup was still fit for human consumption.

This argument is irrelevant to the issue of misconduct.  Relator knew her employer’s policy prohibited use of out-of-date syrup but she continued to use that syrup notwithstanding the policy.  Relator challenges the wisdom of that policy.  On this record we cannot say that the employer was unreasonable in establishing a policy of product usage based on guidelines printed and supplied by the manufacturer.  Thus, her conversation with a vendor is not a valid reason to ignore a company policy.  Relator was obligated to observe her employer’s policy and her decision to ignore the policy is an intentional violation of that policy.  Thus, the commissioner’s representative did not err in concluding that she had committed employment misconduct.