Anna M. Wegner, Relator, vs. Diamond Product Company (Corp), 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This opinion will be unpublished and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

A03-685

 

Anna M. Wegner,

Relator,

 

vs.

 

Diamond Product Company (Corp),

Respondent,

 

Commissioner of Employment

and Economic Development,

Respondent.

 

Filed March 2, 2004

Reversed Hudson, Judge

 

Department of Employment

and Economic Development

File No. 16481 02

 

 

Thomas H. Boyd, Matthew D. Spohn, Winthrop & Weinstine, P.A., Suite 3500, 225 South Sixth Street, Minneapolis, Minnesota 55402 (for relator)

 

Carol A. Ellingson, Bend & Ellingson, P.A., 6 West Fifth Street, Suite 700, St. Paul, Minnesota 55102 (for respondent employer)

 

Linda Holmes, Lee B. Nelson, Philip B. Byrne, Department of Employment and Economic Development, 390 North Robert Street, St. Paul, Minnesota 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

HUDSON, Judge

On certiorari appeal from the commissioner's representative's finding of employment misconduct, Wegner contends she did not intentionally ignore her employment duties or violate the standards of conduct expected by her employer.  We conclude that the record does not support the finding that Wegner committed misconduct, and we reverse.

FACTS

Relator Anna Wegner began working at Gillette Company, a manufacturer of personal-care products, in September of 1978.  Wegner was employed as a chemical mixer for Gillette from September 30, 1996, to December 9, 1996, and again from August 16, 1999, until September 2002.  After Gillette was purchased by respondent Diamond, Wegner continued to work for Diamond until her employment termination in September 2002.

In the chemical-mixer position, employees and managers act as "checkers" and verify that the mixers added the correct chemicals and quantities to a product batch.  Prior to 1996, checkers were only required to verbally verify with mixers whether they added the correct chemicals and quantities to product batches.  But on October 28, 1996, Gillette held a meeting for mixers and at that meeting distributed a document, which stated:

All Roll-on Products and Dandruff Shampoo require a 2nd Checker Signature.  This person must observe you adding the chemicals to the batch and is verifying that the correct chemical and quantity is being added. . . .  This is a critical FDA requirement.

 

(Emphasis added.)  Wegner attended the October 28th meeting.  Gillette implemented the visual-verification policy because a federal regulation governing the manufacture of personal-care products provides that each "component [chemical] shall be added to the batch [of product] by one person and verified by a second person."  21 C.F.R. § 211.101(d) (2003). 

            On December 9, 1996, Wegner was transferred to work in other areas within Gillette's plant. 

In 1999, Gillette implemented a batch mix "integrity policy," which stated that batch documentation "must be accurate and truthful, [and that] knowingly failing to enter information truthfully will result in termination." 

            On August 16, 1999, Wegner returned to the position of chemical mixer.  At that time, two other chemical mixers, Diane Olmstead and Keith Cilley, trained Wegner on the policies and practices of the position of chemical mixer, including her function as a "checker."  Because Wegner was not a chemical mixer when the integrity policy was implemented, Kevin Reiger, plant operation's manager, trained Wegner on the batch-mixing integrity policy.   

            Wegner claims that when she returned to the position of chemical mixer in 1999, she was not trained that, as a "checker," she must visually verify that mixers added the correct chemicals and quantities to batches.  Wegner's claim was supported by the testimony of Diane Olmstead.  Olmstead testified that she trained Wegner that as a "checker," verification required that she verbally confirm that chemical mixers added the proper chemical and quantities to a batch.  Cilley testified that he told Wegner to read the batch manual for an explanation of her function as a "checker."  The batch manual states that the chemical mixer must verify that the mixer adds the correct chemical to a batch, but does not define the term "verify."  Cilley also testified that he understood that verification meant visual observation and that it was his practice to train by demonstration.  But Cilley testified that he did not remember training Wegner.

In April 2000, the Diamond chemical company purchased Gillette.  On April 4, 2000, Diamond held a meeting and notified employees that it had adopted Gillette's company policy on mixing and the mixing-integrity policy.  

In May 2002, Diamond received a customer complaint about an improperly mixed batch of deodorant.  In response to the complaint, Diamond held a meeting to give mixers additional training on the checker function.  Diamond also investigated the matter.  In the course of the investigation, Wegner was interviewed and admitted that prior to May 2002 she believed that verbal verification was the proper method of verification.  Wegner explained that after Diamond re-trained the chemical mixers on the visual-verification policy in May of 2002, she began physically observing mixers.  Diamond suspended Wegner on September 17, 2002, and terminated her employment on September 24, 2002. 

            Wegner applied for unemployment benefits on October 16, 2002, and the Minnesota Department of Employment and Economic Development (Department) determined that Wegner was disqualified from receiving benefits.  Wegner appealed this decision.  On February 11, 2003, the unemployment law judge reversed the Department's decision.  Diamond appealed this decision on March 7, 2003.  The commissioner's representative reversed the unemployment law judge's determination and found Wegner was disqualified from receiving benefits.  The commissioner's representative found that Wegner's statement that she thought she was following the proper procedures by verbally verifying with chemical mixers was not believable.  This certiorari appeal follows.

D E C I S I O N

An employee discharged for misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4(1) (2002).  We review the factual findings of the commissioner's representative in the light most favorable to the decision and determine whether evidence in the record reasonably tends to sustain those findings.  Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996).  But the ultimate determination of whether an employee was properly disqualified from receiving benefits is a question of law, which appellate courts review de novo.  Minn. Stat. § 268.095, subds. 4, 6 (2002); Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989). 

Employment misconduct is defined under Minnesota law as intentional conduct in violation of the standards of behavior that the employer has a right to expect.  Minn. Stat. § 268.095, subd. 6(a)(1) (2002).  The supreme court interpreted the statutory definition of misconduct in Houston v. Int'l Data Transfer Corp., 645 N.W.2d 144, 149 (Minn. 2002).  The court must ask, (1) is the conduct intentional, and (2) does the conduct disregard either "standards of behavior that an employer has the right to expect" or "the employee's duties and obligations to the employer?"  Id.  The court interpreted "intentional" to mean "deliberate and not accidental."  Id. (citation omitted).  The second-prong definitions were interpreted to "contemplate that the word ‘disregard' includes intent that is separate and distinct from the intent to engage in the conduct in question."  Id. at 150.  Therefore, there must be a showing

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.

 

Id.

            A good-faith misunderstanding of the employer's rules or policies does not constitute misconduct.  Tuckerman Optical Corp. v. Thoeny, 407 N.W.2d 491, 493 (Minn. App. 1987); Norman v. Campbell-Logan Bindery, 376 N.W.2d 723, 725 (Minn. App. 1985).

We first address respondents' claim that two unpublished opinions affirming the commissioner's representative's determination of misconduct when Diamond Products terminated employees for similar conduct are controlling.  See Jennings v. Diamond Products Co., No. C6-02-2196, 2003 WL 22135981 (Minn. App. September 16, 2003); Haessly v. Diamond Products Co., No. C8-02-2216, 2003 WL 22014745 (Minn. App. August 26, 2003).  Respondents cite to both cases in support of the commissioner's representative's disqualification of Wegner.  First, we note that, as unpublished cases, they have no precedential value.  Minn. Stat. § 480 A. 08, subd. 3(c) (2002); Dynamic Air, Inc. v. Bloch, 502 N.W.2d 796, 800 (Minn. App. 1993).  But, in any event, this case is factually distinguishable from Haessly and Jennings.  For example, Jennings was employed at Gillette and Diamond a combined twenty-six years and was employed as a chemical mixer continuously for the last ten years of his employment.  Jennings, 2003 WL 22135981, at *1.  Similarly, Haessly was employed as a chemical mixer from 1989 until her employment was terminated in 2002.  Haessly, 2003 WL 22014745, at *1.  Thus, both Haessly and Jennings attended meetings discussing the visual-verification policy in 1996 and then worked as chemical mixers continuously for the next seven years. 

Conversely, Wegner worked as a chemical mixer from September 30, 1996, to December 9, 1996, and then again in April 1999 until her termination in September 2002.  While Wegner attended the October 28, 1996, meeting discussing the visual-verification policy, she left the department shortly after that meeting and did not return for 2-1/2 years.  In addition, in Jennings,Jennings admitted he knew about the visual-verification policy.  Jennings, 2003 WL 22135981 at *3.  Wegner made no such admission.  Because of these factual distinctions, Haessly and Jennings carry little weight here.

Here, it is clear that Wegner's conduct satisfied the first prong of the Houston test for misconduct because Wegner intentionally signed batch documents stating that she had performed the checker function when she had not visually verified the chemical mixers add the chemicals to the batches.  But Wegner argues that her conduct does not satisfy the second prong of the Houston test, because she was never properly trained on the visual verification policy and believed she was following company policy by conducting verbal verification with the chemical mixers. 

            The commissioner's representative found Wegner's testimony that she believed she was following the correct company procedures as a "checker" by conducting verbal verification with the chemical mixers was not reasonable or believable.  The commissioner's representative relied on the following findings to make this determination.  First, on April 16, 1999, Wegner was provided a copy of the integrity policy, which stated that when filling out a batch document an employee "must be accurate and truthful, [and that] knowingly failing to enter information truthfully will result in termination."  Second, Wegner's supervisor and Kevin Cilley, a union steward and co-worker, acknowledged that she had been fully trained and was qualified to perform all area 32 mixing operations.  Third, Wegner attended the October 28, 1996, meeting in which her employer explained the visual verification policy.  Finally, Diamond held a meeting in April of 2000 explaining that it would adopt Gillette's batch policy and the integrity policy. 

This court defers to the credibility determinations of the commissioner's representative.  Nyberg v. R.N. Cardozo & Brother Inc., 243 Minn. 361, 364, 67 N.W.2d 821, 823 (1954); Heitman v. Cronstroms Mfg., Inc., 401 N.W.2d 425, 427 (Minn. App. 1987).  Factual findings are reviewed in the light most favorable to the commissioner's decision and will not be disturbed as long as there is evidence that reasonably tends to sustain these findings.  Schmidgall v. Filmtec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  But here, the record does not support the commissioner's representative's findings.  Rather, the evidence supports Wegner's argument that, as in Tuckerman,Wegner's good-faith understanding of the policy was that verbal verification was proper. 

Indeed, a review of the record reveals that only two facts support the commissioner's representative's conclusion that Wegner intentionally disregarded her employer's directives: (1) Wegner's attendance at the October 1996 meeting; and (2) Cilley's testimony that he understood that verification meant observation and that he trained employees by demonstration.  There is no other evidence in the record that Diamond trained Wegner that verification meant visual verification.  Indeed, the bulk of the evidence in the record supports Wegner's belief that verbal verification was the proper method for checker verification.

While Wegner attended the 1996 meeting, she was transferred from her position as a mixer two months after this meeting and did not return to this position for 2-1/2 years.  It is not reasonable to expect that because Wegner attended the training at the 1996 meeting she was sufficiently trained on her function as a checker in 1999. 

In addition, the direct testimony concerning how Wegner was trained on the verification policy in 1999 does not support the commissioner's representative's finding that Wegner knew of the visual-verification policy.  First, Cilley testified that he does not remember training Wegner.  Moreover, he stated that when he does train someone he does not make a special point to instruct him or her that as a checker they must physically observe the chemical mixer add the chemicals to the batch.  Rather, he tells trainees to read the manual, which only indicates that the checker must verify with the mixers that they added the correct chemical to a batch.  The manual does not define the term verify.  Cilley testified that he only expands on the meaning of verification if it comes up in the course of training.  Although Cilley testified he understood that verification meant observation and that he trained employees by demonstration, this testimony does not contradict his related testimony that he did not expand on what verification meant unless it was made an issue. 

            Significantly, Wegner's other trainer, Olmstead, testified that she did not train Wegner to physically observe the chemical mixers add the chemicals to the batch.  Rather, Olmstead trained Wegner that verbal verification was a proper method of verification.  Furthermore, Reiger's decision in May of 2002 to re-train employees on the checker function following the customer complaint indicates that he did not believe that the checker function was clearly understood by the chemical mixers. 

Finally, the commissioner's representative relied on the fact that Wegner was trained on the integrity policy in 1999 to support its determination, but this finding does not support the commissioner's representative's determination because the integrity policy did not define or expand on the definition of verification.  Therefore, training on this policy did not clarify that verification meant visual verification rather than verbal verification. 

            Based on these facts, we conclude that the record does not support the commissioner's representative's determination that Wegner violated the second prong of the Houston test for misconduct by intentionally ignoring her employer's policy to visually verify that the chemical mixers added the correct chemicals and quantities to each product batch. 

Reversed.