This opinion will be unpublished and

may not be cited except as provided by

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






Adrian C. Thompson,


Marigold Foods LLC,
Commissioner of Economic Security,


Filed May 13, 2003


Stoneburner, Judge


Commissioner of Economic Security


Adrian C. Thompson, 3864 Granada Lane North, Oakdale, MN 55128-3026 (pro se relator)


Lee B. Nelson, M. Kate Chaffee, Department of Economic Security, 390 North Robert Street, St. Paul, MN 55101 (for respondent Commissioner)


            Considered and decided by Stoneburner, Presiding Judge, Lansing, Judge, and Klaphake, Judge.

U N P U B L I S H E D  O P I N I O N



            Relator Adrian C. Thompson challenges the determination of a representative of the Commissioner of Economic Security that Thompson is ineligible for unemployment benefits because he was discharged for misconduct.  We affirm.


            The record reflects that relator Adrian C. Thompson received training regarding the policies of respondent Marigold Foods, LLC, during his employment orientation.  Thompson was discharged from employment on January 22, 2002, pursuant to Marigold’s policy of progressive discipline, for four violations of company policies and practices.  Marigold reprimanded Thompson four times: (1) February 13, 2001, for insubordination because he refused to perform a task as instructed by his supervisor; (2) March 15, 2001, for sleeping on the job; (3) December 20, 2001, for failing to comply with the proper cleaning procedures, thereby, allowing cleaning agent to contaminate milk that was distributed to numerous schools; and (4) January 21, 2002, for violating the company’s policy by reading a newspaper while in the production area during his shift.  In addition, Marigold counseled Thompson on December 31, 2001, about his noncompliance with company procedures and about his inattentiveness while operating machinery. 

            An adjudicator for the Department of Economic Security denied Thompson’s application for unemployment benefits based on a determination that Thompson was discharged for misconduct.  Thompson appealed.  At the hearing, Thompson acknowledged the reprimands, but he argued that (1) the February 13 incident was merely an attempt by him to follow safety protocols before he complied with his supervisor’s instructions; (2) on March 15 he was not sleeping but merely dozing due to taking pain medication; (3) the December 20 contamination problem was not his fault because there were inadequate or nonexistent procedures for how to properly carry out the process; and (4) on January 21, he had not had a chance to read the paper which was found in his possession.  Thompson further argued that he never received adequate instruction regarding Marigold’s policies during his orientation there was a fire at the plant that interrupted his orientation.

            The unemployment law judge also concluded that Thompson was discharged for misconduct and therefore disqualified from receiving benefits.  Thompson appealed to the commissioner whose representative also concluded that Thompson was discharged for misconduct.  Thompson then petitioned for review by writ of certiorari.


Whether an employee engaged in disqualifying misconduct is a mixed question of fact and law.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).   Findings of fact will be reviewed in the light most favorable to the decision.  Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996).  These findings will not be disturbed as long as evidence in the record reasonably tends to sustain them.  Schmidgall, 644 N.W.2d at 804.  But whether the particular acts at issue constitute disqualifying misconduct is a question of law reviewed de novo.  Id.

Thompson acknowledges that he received four reprimands prior to discharge but argues that his actions do not constitute disqualifying misconduct under the statute.

Employment 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).  The supreme court has recently held that to find employment misconduct there must be evidence that the employee’s actions were (1) intentional and “(2) disregard[ed] standards of behavior the employer has a right to expect or the employee’s duties and obligations to the employer.”  Houston v. Int’l Data Transfer Corp., 645 N.W.2d 144, 149 (Minn. 2002). 

            Marigold had a right to expect that Thompson would follow the instructions of his supervisor, that he would not sleep while on the job, that he would follow the proper procedures for ensuring Marigold’s milk product was not contaminated by cleaning solvents, and that he would not violate Marigold’s policy by bringing reading material into the production area during his shift.  Thompson admitted that he was aware of Marigold’s policy prohibiting possession of newspapers in the production area, nonetheless, despite previous reprimands, a prior suspension and a “final warning” on December 20, 2001, that no more violations of work rules would be tolerated, Thompson brought a newspaper to the production area and was looking at the classified sections, a deliberate act demonstrating Thompson’s disregard for the standards of behavior that Marigold had the right to expect.  The commissioner’s representative did not err by concluding that Thompson intentionally disregarded the standards of behavior that Marigold had the right to expect him to follow and that Thompson engaged in indifferent conduct on the job that demonstrated a substantial lack of concern for his employment.