This opinion will be unpublished and

may not be cited except as provided by

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







Bobby McGary,


Best Buy Stores LP,

Commissioner of Employment and Economic Development,


Filed July 20, 2004


Wright, Judge


Department of Employment and Economic Development

File No. 6041 03



Bobby McGary, 5809 73rd Avenue North, Apartment 50, Brooklyn Park, MN  55429 (pro se relator)


Best Buy Stores LP, 7601 Penn Avenue South, Richfield, MN  55423 (respondent)


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



            Considered and decided by Kalitowski, 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 challenges the decision of the commissioner’s representative that he was disqualified from receiving unemployment benefits because he was discharged for employment misconduct.  We affirm.



Relator Bobby McGary was employed as a cashier by respondent Best Buy Stores from March 6, 2001, to February 20, 2003.  On February 17, 2003, Best Buy general manager Kristy Holt and McGary’s supervisor, Leanne Holmberg, met with McGary to discuss his availability to work at night and his demeanor and conduct while working.  Holt advised McGary that he could not lean on the counter while sitting at the cash register.  McGary responded that he needed to lean on the counter because he was suffering from back pain caused by a recent car accident.  After offering to replace the stool McGary was using with a chair that supported his back, Holt reiterated that McGary could not continue to lean on the counter.  Holt also directed McGary to smile and acknowledge the customers and to improve his appearance.  McGary responded, “I don’t have to be your friend, I don’t have to like you” and “I don’t have to kiss your ass.”  Holt warned McGary that if he said that again, he would be suspended.  McGary repeated the statement, and Holt suspended him.  Best Buy terminated McGary based on his insubordination on February 17 and two other incidents in which McGary made inappropriate remarks to female customers. 

McGary applied for unemployment benefits.  The Department of Employment and Economic Development found McGary disqualified because he was terminated for employment misconduct.  The department’s determination was affirmed by an unemployment law judge and the commissioner’s representative.  This certiorari appeal followed.



We review the findings of the commissioner’s representative rather than those of the unemployment law judge.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  In doing so, we view these findings in the light most favorable to the decision of the commissioner’s representative to determine whether the evidence reasonably sustains the findings.  Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).  Whether an employee committed unemployment misconduct is a mixed question of fact and law.  Colburn v. Pine Portage Madden Bros., Inc.,346 N.W.2d 159, 161 (Minn. 1984).  Whether the employee committed a particular act is a question of fact, which we review for clear error.  See Scheunemann v. Radisson South Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  Whether the act constitutes misconduct is a question of law, which we review de novo.  Ress, 448 N.W.2d at 523.

An employee who is discharged for employment misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4(1) (2002).  Employment misconduct is defined as “(1) any intentional conduct . . . that disregards the standards of behavior that an employer has the right to expect of the employee or [that] disregards the employee’s duties and obligations to the employer; or (2) negligent or indifferent conduct . . . that demonstrates a substantial lack of concern for the employment.”  Minn. Stat. § 268.095, subd. 6(a) (2002).[1]  “Inefficiency, inadvertence, simple unsatisfactory conduct, [and] poor performance because of inability or incapacity  . . . are not employment misconduct.”  Minn. Stat. § 268.095, subd. 6(b) (2002). 

McGary argues that the commissioner’s representative erred in determining that he was terminated for employment misconduct because his termination stemmed from his disability.  The commissioner’s representative contends that its decision is supported by the “last straw doctrine.”  Under the last straw doctrine, “behavior unrelated in time or tenor may, as a whole, support a determination of misconduct.”  Barstow v. Honeywell, Inc., 396 N.W.2d 714, 716 (Minn. App. 1986); see also Flahave v. Lang Meat Packing, 343 N.W.2d 683, 687 (Minn. App. 1984) (stating an employee’s repeated infractions of employer’s rules showed substantial disregard of employer’s interests and of duties and obligations owed to employer).  But the final incident resulting in termination must “demonstrate[ ] conclusively the employee’s utter disregard for the employer’s interests.”  Barstow, 396 N.W.2d at 716 (quoting Giddens v. Appeal Bd. of Mich. Empl. Sec. Comm’n, 145 N.W.2d 294, 298 (Mich. 1966)).

            The commissioner’s representative determined that McGary disregarded the standards of behavior that Best Buy had a right to expect from its employee as evinced by McGary’s inappropriate comments to female customers on two different occasions and his insubordinate conduct toward Holt.  The record establishes that McGary received a written warning in July 2001 for making advances and giving his phone number to a 15-year-old customer.  He was reprimanded again in March 2002 for making inappropriate remarks to another customer.  At the hearing, McGary did not dispute that Best Buy received two complaints about his “hitting on” female customers.  And there is ample evidence in the record as to McGary’s insubordination on February 17.  Based on these facts, we conclude that McGary intentionally disregarded the standards of behavior that Best Buy had a right to expect of its employee.

            McGary argues unpersuasively that he was terminated because he was not able to stand while working due to a purported disability.  Assuming for purposes of our analysis that McGary had a disability, the record does not support McGary’s argument.  McGary’s termination notice does not address an inability to perform the duties of the job.  Although McGary testified that Best Buy was dissatisfied with his need to sit on a stool while working, he concedes that Holt offered to reimburse him for a chair with back support in order to alleviate McGary’s need to lean on the counter.  And McGary admits that Best Buy officials told him that he was discharged because of his insubordinate statements and conduct on February 17.  McGary’s assertion that he was terminated because of his disability is contradicted by his own testimony and the record as a whole.

The commissioner’s representative did not err in concluding that McGary was terminated for employment misconduct and, therefore, is disqualified from receiving unemployment benefits. 


[1] The definition of employment misconduct was amended by the legislature, effective August 1, 2003.  2003 Minn. Laws 1st Spec. Sess. ch. 3, art. 2, §§ 13, 20(g); see Minn. Stat. § 645.02 (2002).  We apply the definition in effect at the time the conduct occurred.  Bray v. Dogs & Cats Ltd., 679 N.W.2d 182, 185-86 (Minn. App. 2004).  Because the conduct at issue here occurred prior to August 1, 2003, we apply the 2002 definition of employment misconduct in our analysis.