This opinion will be unpublished and

may not be cited except as provided by

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






Michelle M. Toftely,





Qwest Communications Corp.,



Commissioner of Economic Security,



Filed April 22, 2003


Gordon W. Shumaker, Judge


Department of Economic Security

File No. 718302




Stephen C. Fiebiger, Stephen C. Fiebiger & Associates, Chartered, 2500 West County Road 42, Suite 106, Burnsville, MN 55337 (for relator)


Matthew E. Klein, Dorsey & Whitney, LLP, Suite 1500, 50 South Sixth Street, Minneapolis, MN 55402-1498; and


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



            Considered and decided by Shumaker, Presiding Judge, Randall, Judge, and Wright, Judge.


U N P U B L I S H E D   O P I N I O N



Relator Michelle M. Toftely appeals the Minnesota Department of Economic Security (MDES) commissioner’s representative’s determination that she was discharged from working at Qwest Corporation (Qwest) for employment misconduct.  Because the commissioner’s representative correctly found that Toftely was discharged for employment misconduct, we affirm.



Relator Michelle M. Toftely began working at Qwest as an internet security engineer in December 1998.  She was a manager whose duties included configuring, installing, and maintaining customers’ managed “fire walls,” so that customers could protect their internal data. 

On March 11, 2002, the general counsel of Qwest sent an e-mail to Qwest managers nationwide, including Toftely.  The subject line of the e-mail stated, “Notice of Legal Hold—Urgent and Confidential.”  Toftely read the subject line, but before opening and reading the contents, she forwarded the e-mail to her husband at his business e-mail address.  Toftely asserts that, because the subject line referred to a “legal hold,” she wanted her husband, a lawyer, to help her with whatever legal question the message might contain and to advise her on Qwest policies.

            After Toftely forwarded the e-mail, she opened and read it and learned that it dealt with document retention because of an SEC investigation and various lawsuits.  The e-mail referred to an attachment which gave categories of documents to be retained, indicated that if there were any questions to contact the legal department, and provided that the “e-mail and the attached memo should not be disclosed to anyone who is not employed by Qwest.”

Qwest had attached an electronic tracer or trap to the e-mail that gave notice whenever someone forwarded it outside the Qwest network.  Qwest received notification that approximately 20 people in numerous states, including Toftely, had forwarded the e-mail to outsiders.  Qwest discharged all those employees.  On March 25, 2002, Qwest discharged Toftely because she had forwarded the e-mail to her husband.

            Toftely applied to the MDES for unemployment benefits.  MDES initially granted this request, but when Qwest appealed this determination an unemployment law judge found that Toftely was discharged for employment misconduct.  This finding disqualified Toftely from receiving unemployment benefits.  She appealed this decision, and the commissioner’s representative affirmed the unemployment law judge.  The commissioner’s representative found that Toftely intentionally violated Qwest’s specific instructions not to disclose the e-mail to outsiders without authorization.  Toftely appeals the commissioner’s representative’s decision.


When reviewing MDES’s determination about an employee’s eligibility for unemployment benefits, we review the commissioner’s findings, not those of the unemployment law judge.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995). Minnesota law places no burden of proof on either party.  Minn. Stat. § 268.105, subd. 1(b) (2002). 

We review findings of fact in the light most favorable to the commissioner’s decision and will not disturb them provided there is evidence that reasonably tends to sustain them.  Ress v. Abbott N.W. Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).  Whether an employee committed disqualifying misconduct is a mixed question of fact and law.  Colburn v. Pine Portage Madden Bros., Inc., 346 N.W.2d 159, 161 (Minn. 1984).  The commissioner determines “[w]hether an employee committed the specific act or acts alleged to be misconduct,” which is a fact question.  Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997). 

This court exercises de novo review to determine whether the employee’s actions as a matter of law constitute employment misconduct and disqualify the employee from receiving unemployment benefits under Minnesota law.  Ress, 448 N.W.2d at 523; see Minn. Stat. § 268.095 (2000) (outlining unemployment benefits disqualification provisions).  We do not determine whether the employee should have been terminated, but only whether the employee is not entitled to unemployment compensation benefits.  Ress, 448 N.W.2d at 523.  Because Toftely admits that she forwarded the confidential e-mail outside the Qwest system, her actions as a matter of law constitute employment misconduct under Minn. Stat. § 268.095, subd. 6(a)(1).

Application of Minn. Stat. § 268.095

Minn. Stat. § 268.095, subd. 4(1), states that an employee is disqualified from receiving unemployment benefits if she 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). 

However, employment misconduct does not include:

inefficiency, inadvertence, simple unsatisfactory conduct, poor performance because of inability or incapacity, or absence because of illness or injury with proper notice to the employer.


Minn. Stat. § 268.095, subd. 6(b).

The supreme court recently interpreted the meaning of employment misconduct under Minn. Stat. § 268.095, subd. 6(a)(1) in Houston v. Int’l Data Transfer Corp., 645 N.W.2d 144 (Minn. 2002).  The court articulated a two-pronged test to determine whether an employee’s actions constitute “employment misconduct.”  Id. at 149.  The employee’s conduct must

(1) be intentional and (2) disregard standards of behavior the employer has a right to expect or the employee’s duties and obligations to the employer.


Id.  Under the first prong, the court defines conduct that is intentional to be “deliberate” and “not accidental.”  Id.  Toftely does not dispute the first prong of the Houstontest.  She admits that she deliberately forwarded the e-mail to her husband.

            The second prong of the Houstontest requires an analysis of the employee’s intent that is “separate and distinct” from the intentional conduct required in the first prong.  Id. at 150.  Thus, the Houston test for employment misconduct requires

that the employee not only engaged in intentional conduct, but also intended to, or engaged in conduct that evinced an intent 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.



Toftely claims she did not have the intent required to establish disqualifying employment misconduct because (1) the record does not contain any Qwest policy against such conduct; (2) the information in the e-mail was public information; and (3) Toftely forwarded the e-mail so that she could perform her job better, thus benefiting Qwest.

            The record does not support Toftely’s contention that Qwest had no policy against forwarding e-mails outside of the company.  The Qwest Code of Conduct Manual, on which Toftely was trained, clearly forbids this behavior.  It states that confidential information should not be disclosed to non-Qwest employees, including family.  Toftely admits that she had seen the Qwest Code of Conduct Manual and acknowledged that she is responsible for adhering to its contents.

Toftely’s argument that the contents of the e-mail contained public information suggests that Toftely did not agree with Qwest’s characterization of the e-mail as “confidential.”  The supreme court has defined “confidential information” in the employment context as “that which an employee knew or should have known was confidential.”  Jostens, Inc. v. Nat’l Computer Sys., Inc., 318 N.W.2d 691, 702 (Minn. 1982) (citing Structural Dynamics Research Corp. v. Eng’g Mechs. Research Corp., 401 F. Supp. 1102 (E. D. Mich. 1975).  The e-mail’s subject line clearly indicated that the e-mail was confidential.  Toftely admits that she read the subject line.  Therefore, we conclude Toftely knew or should have known that the e-mail was confidential.

            Finally, Toftely’s justification that she forwarded the e-mail to her husband so that she could better perform her job is without legal merit.  See Soussi v. Blue & White Serv. Corp., 498 N.W.2d 316, 318-19 (Minn. App. 1993) (rejecting the idea that employee can ignore reasonable policy or instruction of employer if acting in good faith or to benefit employer).

            Toftely deliberately violated a reasonable policy of Qwest.  See Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 806 (Minn. 2002) (stating an employee’s decision to violate knowingly a reasonable policy of the employer is misconduct.)  Qwest’s confidentiality policy is reasonable because Qwest has a strong interest in protecting communications between its employees and legal counsel.  Additionally, once an e-mail leaves Qwest’s system, Qwest has no control over who sees the contents of the forwarded e-mail.  Thus, we hold that Toftely was discharged for employment misconduct under Minn. Stat. § 268.095, subd. 6(a)(1), and is disqualified from receiving unemployment benefits.