This opinion will be unpublished and

may not be cited except as provided by

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






John P. Miller,



Wal-Mart Stores,


Commissioner of Economic Security,



Filed April 29, 2003


Lansing, Judge


Department of Economic Security

File No. 461602



John P. Miller, 401 Creek Lane, Chaska, MN  55318-1870 (pro se relator)


Wal-Mart Associates Inc., C/O the Frick Co., P.O. Box 283, St. Louis, MO 63166 (respondent)


M. Kate Chaffee, Minnesota Department of Economic Security, 390 North Robert Street, St. Paul, MN  55101 (for respondent Commissioner of Economic Security)


            Considered and decided by Lansing, Presiding Judge, Peterson, Judge, and Wright, Judge.

U N P U B L I S H E D   O P I N I O N


            A discharged assistant store manager appeals the determination of a commissioner’s representative that he committed employment misconduct disqualifying him from receiving unemployment benefits.  Because the record supports the representative’s finding of misconduct within the meaning of Minn. Stat. § 268.095, subd. 6(a)(1) (2002), we affirm.


            John Miller worked as an assistant store manager for Wal-Mart from January 2001 to January 2002.  In June 2001, Wal-Mart suspended and transferred Miller because of four separate conversations in which Miller made inappropriate statements with sexual content to female employees.  Miller was told of the reasons for the suspension and transfer and was required to attend a training program on sexual harassment.

In January 2002, Wal-Mart terminated Miller’s employment after receiving a written statement from one of Miller’s female subordinates at his new location describing a conversation with Miller, which she said made her feel “extremely uncomfortable.”  According to the statement, Miller asked the employee, a minor, how old she was and whether she spends the night at her boyfriend’s house.  Miller also asked the employee the age of her mother and whether her mother was “good looking.”  After the employee told Miller that her mother resembled her, Miller said, “[W]ell she is pretty then.”  According to the statement, he then told the employee to tell her mother that she had a “good looking” manager and to bring her to meet him.  Among other questions and comments, Miller told the employee she should take her boyfriend’s money and run off with Miller. 

A Department of Economic Security adjudicator initially determined that Miller was discharged for reasons other than employment misconduct and was therefore eligible for unemployment benefits.  Wal-Mart appealed, and a hearing was held before an unemployment law judge.  At the hearing Wal-Mart presented the written statements of the female employee and another employee who was present during the conversation.  In addition, Wal-Mart presented the written statements of several other employees describing prior comments and conduct by Miller and documents establishing that Miller had previously been reprimanded for making inappropriate comments of a sexual nature.  Wal-Mart also introduced provisions of its employee handbook outlining company policy on harassment and Miller’s signed acknowledgment that he had received the handbook.

The unemployment law judge reversed the adjudication and determined that Miller was discharged for misconduct.  This decision was affirmed by a representative of the economic security commissioner, who concluded that Miller had been discharged for employment misconduct within the meaning of the statute.  Miller appeals the decision of the commissioner’s representative.


            An employee discharged for misconduct is not eligible for unemployment benefits.  Minn. Stat. § 268.095, subd. 4(1) (2002).  Employment misconduct includes “any intentional conduct * * * that disregards the standards of behavior that an employer has the right to expect of the employee * * * .”  Minn. Stat. § 268.095, subd. 6(a)(1) (2002).

            Whether a former employee is disqualified from receiving unemployment benefits is a mixed question of fact and law.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  The determination of whether the employee committed a particular act is a determination of fact.  See Colburn v. Pine Portage Madden Bros., Inc., 346 N.W.2d 159, 161 (Minn. 1984).  Whether that act constitutes unemployment misconduct is a legal determination.  Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996).  This court defers to the factual determinations of the commissioner’s representative if they are reasonably supported by evidence in the record, but we exercise independent judgment with respect to questions of law.  Id.

            Miller first challenges the representative’s findings of fact on the statements he made to the subordinate employee.  Miller admits that he asked the employee questions about her and her boyfriend’s “living arrangements” and expressed interest in dating her mother, but characterizes the latter comment as “just a matter of a joke.”

The record before the representative included written statements by the employee and another Wal-Mart employee who was present during the incident.  The witness stated that Miller asked the employee how old she was, whether she lives with her boyfriend, and whether her mother looks like her, and that Miller’s questions created an uncomfortable situation.  We conclude that these statements provided adequate support for the representative’s factual findings.

            Miller argues that his actions did not constitute “employment misconduct” under section 268.095 because his conduct did not evince a “willful or wanton” disregard of his employer’s interests.  As a preliminary matter we note that the common law “willful or wanton” standard cited by Miller has been superseded by statute.  See Minn. Stat. § 268.095, subd. 6(a)(1), 6(e) (2002) (defining misconduct as “intentional conduct * * * that disregards the standards of behavior that an employer has the right to expect” of employees and describing the statutory definition as “exclusive”).  Under the current statutory standard, a finding of employment misconduct requires “a sufficient showing in the record that the employee not only engaged in intentional conduct, but also intended to * * *  ignore or pay no attention to his or her duties and obligations or the standards of behavior the employer has a right to expect.”  Houston v. Int’l Data Transfer Corp., 645 N.W.2d 144, 150 (Minn. 2002).

            The record contains unchallenged evidence that Miller acknowledged receiving Wal-Mart’s policy on sexual harassment at the outset of his employment, that he was previously reprimanded for making inappropriate comments of a sexual nature to his subordinates, and that after the previous incident he was told that subsequent similar incidents would lead to his termination.  In light of this evidence, we conclude that Miller deliberately ignored standards of behavior that Wal-Mart had a right to expect when he asked the employee intimate questions about her personal life.