Cuitlauhac Sanchez, Relator, vs. Jennie-O Turkey Store, Inc., Respondent, Commissioner of Employment and Economic Development, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-526

 

Cuitlauhac Sanchez,

Relator,

 

vs.

 

Jennie-O Turkey Store, Inc.,

Respondent,

 

Commissioner of Employment and Economic Development,

Respondent.

 

Filed November 18, 2003

Affirmed

Harten, Judge

 

Department of Employment and Economic Development

Agency File No. 316 03

 

Antonio Tejeda, Anderson, Larson, Hanson & Saunders, 331 Southwest Third Street, Willmar, MN 56201 (for relator)

 

Thomas P. Kieselbach, Andrea E. Reisbord, Cousineau, McGuire & Anderson, 1550 Utica Avenue South, Suite 600, Minneapolis, MN 55416 (for respondent Jennie-O Turkey Store, Inc.)

 

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

 

            Considered and decided by Harten, Presiding Judge, Hudson, Judge, and Crippen, Judge.*

 

U N P U B L I S H E D   O P I N I O N

 

HARTEN, Judge

 

            Relator Cuitlauhac Sanchez challenges the commissioner's representative's finding that he committed misconduct.  Because the record supports the commissioner's representative's finding that relator was negligent and demonstrated a substantial lack of concern for his employment, we affirm.

FACTS

 

            While working for respondent Jennie-O Turkey Store, Inc., as a maintenance line mechanic, relator Cuitlauhac Sanchez committed four violations of respondent's rules.

In August 2002, he was insubordinate, raising his voice and becoming agitated with a supervisor.  Relator testified that the supervisor did not allow him to take breaks, made fun of him, and yelled at him.  Relator admitted that he asked the supervisor, in a raised voice, whether she thought that relator was her son.  Relator received his first written warning.

In October 2002, relator picked up some food products while not wearing the required rubber gloves, facemask, sleeves, or apron.  Relator told the supervisor that he understood the policy necessitating the safety equipment, but that he was in a hurry.  Relator later testified that he had been working on the line to help out because such work was not part of his ordinary job duties and that he had been wearing an apron, but had forgotten to wear the sleeves.  Relator also testified that he was not informed of the policy regarding the proper safety equipment until after he received the warning.  Relator received a second written warning and was told that a third rule violation could result in a suspension.

In November 2002, relator removed his gloves while working on a piece of equipment with small pieces of hardware.  He testified that it is difficult to grab small bolts while wearing rubber and vinyl gloves and that it was necessary to remove his gloves to fix the machine, but that he had disinfected his tools and his hands.  Relator received a third written warning and a three-day suspension.  The supervisor testified that he warned relator that a fourth violation could result in discharge, but relator did not remember the warning.

In December 2002, relator worked on equipment that comes in contact with food products while wearing greasy cotton gloves.  Relator testified that his gloves were not greasy, but only wet, and that they had been disinfected.  Later that morning, relator met with a human resources supervisor and was discharged.

The Minnesota Department of Economic Security determined that relator was disqualified from receiving unemployment benefits because his discharge was a result of employee misconduct.  Relator challenged the determination.  Following a hearing, an unemployment law judge found that a preponderance of the evidence revealed that relator had been fired due to employment misconduct and affirmed the determination.  Relator again challenged the determination; the commissioner's representative affirmed.  This appeal followed.

D E C I S I O N

Relator claims that the commissioner's representative erroneously determined that relator's actions constituted misconduct.  A determination that a particular act constitutes employment misconduct is a question of law that this court may review independently.  Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996). 

            The legislature outlined two types of employment misconduct:

(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).

The commissioner's representative determined that relator's actions were negligent and demonstrated a substantial lack of concern for his employment, under Minn. Stat. § 268.095, subd. 6(a)(2).  The record supports that determination.  Relator does not challenge it; he argues instead that his actions do not meet the definition of intentional misconduct found in Minn. Stat. § 268.095, subd. 6(a)(1). Because relator never previously presented this argument, we do not address it.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).

Even if relator's arguments were properly before us, we would find them without merit.  He argues that his violation for insubordination was his defense against the verbal abuse of a supervisor.  But the commissioner's representative determined that relator questioned the authority of the supervisor.  When parties present conflicting evidence, this court defers to the findings of the commissioner's representative and may not review the evidence de novo.  Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995).

Relator argues that he was unaware of the additional sanitation equipment required for handling food.  But when he was hired, he received a copy of respondent's policy regarding protective equipment required when handling food products, and when the supervisor reprimanded him, he explained that he had been "in a hurry," not that he was unaware of the rule.

Relator argues that his third violation occurred because he was trying to perform his duties and that handling small bolts and other hardware could not be done while wearing gloves.  But, instead of discussing the issue with a supervisor, relator worked on the machine without the gloves, notwithstanding respondent's policies.

Relator challenges his fourth violation by claiming that, if his gloves were dirty, it was because he had been working on a dirty machine.  But relator was aware of the policies requiring sanitary equipment when working on machines that came in contact with food products.

Finally, relator argues that his violations, at most, amount to mere inefficiency or unsatisfactory conduct.  See Minn. Stat. § 268.095, subd. 6(b) (2002) (stating that such acts are not employment misconduct).  But relator's repeated violations of respondent's sanitation policies extended beyond mere "[i]nefficiency, inadvertence, [or] simple unsatisfactory conduct."  Relator's actions were negligent and demonstrated a lack of concern for his employment; they meet the standard of Minn. Stat. § 268.095, subd. 6(a)(2).

Affirmed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.