This opinion will be unpublished and

may not be cited except as provided by

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






Michael S. Mapes,


Wal-Mart Associates, Inc.,
Commissioner of Employment and Economic Development,


Filed March 30, 2004


Stoneburner, Judge


Department of Employment and Economic Development

File No. 1905102


Jodi J. Langhorst, Jodi J. Langhorst Law Office, 16186 Main Avenue Southeast, Prior Lake, MN 55372 (for relator)


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


Lee B. Nelson, Department of Employment and Economic Development, 390 North Robert Street, St. Paul, MN 55101 (for respondent Commissioner)


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



U N P U B L I S H E D  O P I N I O N




            Relator challenges the decision by the commissioner’s representative that he was not qualified to receive unemployment-compensation benefits because he had been discharged for misconduct.  We affirm.


Wal-Mart Associates, Inc. employed relator Michael Mapes for 11 years.  Wal-Mart terminated his employment as a district manager for the optical division based on events that occurred during a retreat.

            In the summer of 2002,  Mapes and the managers of Wal-Mart vision centers in Mapes’s district and another district attended a meeting at a resort in northern Minnesota.  The male and female managers were assigned to separate lodges at the resort.

            Most or all of the managers arrived at the resort the evening before the actual district meeting was to be held.  There was an informal “introductory” meeting held around a campfire where Mapes reminded everyone that “we are representing Wal-Mart.”  All of the managers were drinking alcohol that evening, but Mapes became intoxicated.

            Between midnight and 2:00 a.m., Mapes and three other men, two of whom were managers who reported to Mapes, went to the female managers’ lodge and entered by a side door.  They went to the room of a female manager with whom they had often joked in the past, and entered without knocking.  She was asleep but woke up when they entered.  Mapes sat on the bed.  The female manager got up and proceeded to talk and joke with the men.  Mapes admits that they “may have been a little bit loud,” waking up the other female managers.  There was no allegation of sexual harassment, nor did the group intend to wake the other managers.  They stayed in the room for about 15 or 20 minutes. 

            It was alleged that Mapes put out his cigarette on the carpet outside the manager’s room, leaving a burn stain and a hole.  Mapes said the burn was unintentional and occurred because the cigarette fell or was bumped from his hand, and he picked it up. 

            Mapes and one other district manager were in charge of running the district meeting the following morning.  The meeting started one-half hour late.  Mapes said the delay was because he had to drive to the local Wal-Mart store to get sales reports that were necessary for the meeting.  And he claims that he found out that a throat culture taken before he left for the meeting indicated that he had strep-throat, so he had to obtain a prescription and wait for it to be filled before he could return to start the meeting.    Several weeks after the retreat, one of the female managers anonymously complained to the regional manager about Mapes’s behavior at the resort, including the allegation that Mapes started the meeting late due to a hangover.  The regional manager investigated the incident by speaking with several employees who were present at the meeting, including the female manager whose room Mapes had entered.  She expressed concern over whether Mapes’s behavior was appropriate, specifically his sitting on her bed.

            The regional manager also spoke to Mapes who confirmed the allegations about his nighttime activities but denied that he intentionally put out his cigarette on the carpet and started the meeting late due to a hangover.  Mapes’s employment with Wal-Mart was terminated “for inappropriate behavior in leadership while . . . conducting a district meeting.”  Prior to this incident, Mapes’s employment history with Wal-Mart showed only standard or above standard evaluations.  His record over the previous 11 ½ years was unblemished until this incident.

            After Mapes’s employment was terminated, he applied for unemployment benefits.  The Minnesota Department of Employment and Economic Development determined that Mapes was qualified to receive benefits.  Wal-Mart contested the determination, and an unemployment law judge affirmed.  Wal-Mart appealed to the Commissioner of Employment and Economic Development.  The commissioner’s representative determined that Mapes had committed employment misconduct and therefore was disqualified from receiving unemployment benefits.  The commissioner’s representative specifically found that the morning meeting began late not because Mapes was hung over but because he needed to get the sales figures from the Brainerd Wal-Mart and did not allow adequate time or otherwise arrange to get the reports before the meeting began.  This certiorari appeal followed. 



The scope of review in an economic security case is narrow.  Where there is evidence reasonably tending to support the findings of a commissioner’s representative, this court will not disturb them.  Kalberg v. Park & Recreation Bd. of Minneapolis, 563 N.W.2d 275, 276 (Minn. App. 1997).  We review the factual findings of the commissioner’s representative in a light most favorable to the decision, and we leave that determination intact so long as the record reasonably supports the factual findings.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002). 

An employee discharged for misconduct is disqualified from receiving unemployment benefits.  Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  Whether an employee committed a specific act of misconduct is a question of fact.  Id.  Whether an employee committed misconduct that disqualifies a person from eligibility for unemployment benefits is a mixed question of law and fact.  Colburn v. Pine Portage Madden Bros., Inc., 346 N.W.2d 159, 161 (Minn. 1984).  Whether a specific act constitutes misconduct is a question of law reviewed de novo.  Schmidgall, 644 N.W.2d at 804.  Generally, an employee commits misconduct by refusing to comply with an employer’s reasonable requests and/or policies.  See McGowan v. Executive Express Transp. Enters., Inc., 420 N.W.2d 592, 596 (Minn. 1988).

Disqualifying misconduct is defined by statute as:

(1)       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; or

(2)       negligent or indifferent conduct, on the job or off the job, that demonstrates a substantial lack of concern for the employment.


Minn. Stat. § 268.095, subd. 6(a) (2002).[1]

The Minnesota Supreme Court has articulated a two-prong test to determine whether an employee’s actions constitute employment misconduct under Minn. Stat. § 268.095, subd. 6(a)(1).  Houston v. Int’l Data Transfer Corp., 645 N.W.2d 144, 149 (Minn. 2002).  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, intentional conduct requires a “deliberate” act that is “not accidental.”  Id.  Under the second prong, the term “disregard” includes “intent that is separate and distinct from the intent to engage in the conduct in question.”  Id. at 150.  Therefore, to satisfy the Houston test, the employee must have “not only engaged in intentional conduct,” but must have also evidenced 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.”  Id

There is no question that Mapes’s conduct while on the retreat was intentional.  After specifically reminding his colleagues to remember that they were representing Wal-Mart, he became intoxicated, entered the women’s lodge very late at night, disturbed a manger by entering her bedroom and sitting on her bed, and disturbed others.  This conduct satisfies the intentional conduct prong of the test for whether conduct constitutes misconduct. 

Although the company-sponsored retreat occurred off of Wal-Mart’s premises, Wal-Mart had a right to expect that its district manager would behave professionally while on a weekend retreat that combined meetings with some time for relaxation.  Mapes was aware of the importance of maintaining appropriate behavior, but ignored that standard once he started drinking.  Mapes’s behavior intentionally disregarded the standard Wal-Mart had a right to expect, and therefore constituted misconduct. 



[1] Minn. Stat. § 268.095, subd. 6(a) (2002), has been amended.  2003 Minn. Laws ch. 3, art. 2, § 13.  The new definition of employment misconduct, effective August 1, 2003, is “any intentional, negligent, or indifferent conduct, on the job or off the job, (1) that evinces a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee, or (2) that demonstrates a substantial lack of concern for the employment.”  Id. (amending Minn. Stat. § 268.095, subd. 6(a)); Minn. Stat. § 645.02 (2002) (providing laws effective August 1 of year enacted unless otherwise specified).  This case deals with events occurring prior to the amendment and so is governed by the 2002 version of the statute.