This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
Best Buy Stores LP,
Commissioner of Employment and Economic Development,
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.
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). “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 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.