This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-204

 

Barbara J. Dalin,

Relator,

 

vs.

 

Qualex, Inc.,

Respondent,

 

Commissioner of Employment and Economic Development,

Respondent.

 

Filed September 23, 2003

Affirmed

Gordon W. Shumaker, Judge

 

Department of Employment and Economic Development

File No. 13883 02

 

 

 

Leonard W. Glewwe, Moore, Costello & Hart, PLLP, 55 East Fifth Street, Suite 1400, St. Paul, MN 55101 (for relator)

 

Qualex, Inc., c/o Gates McDonald & Co., P.O. Box 1738, Columbus, Ohio 43216-1738 (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 Willis, Presiding Judge; Shumaker, Judge; and Stoneburner, Judge.

 

U N P U B L I S H E D   O P I N I O N

 

GORDON W. SHUMAKER, Judge

 

Relator was fired from her job for violating her employer’s photocopying policy.  The Minnesota Department of Employment and Economic Development, the unemployment law judge, and the Commissioner of Employment and Economic Development’s representative determined that relator’s actions constituted employment misconduct and thus disqualified her from receiving unemployment benefits.  Relator now challenges the decision of the commissioner’s representative.  We affirm.

FACTS

            Relator Barbara Dalin was hired on January 28, 2002, to work full time as a photo-lab operator for Qualex, Inc., a one-hour photo-development lab located in a Target store.  As a photo-lab operator, her duties included serving customers, developing pictures, mixing chemicals, and cleaning the lab.  When relator was hired, her employer gave her a list of work rules for employees who worked within Target’s store operations.  Included in this list was notice that a violation of a copyright law or of the employer’s policies involving copyright infringement constituted gross misconduct and sufficient cause for termination.  Another listed act of gross misconduct was the failure to ring up a sale in its entirety.  Relator initialed each prohibited act on the list and signed the form acknowledging that she had read and understood the work rules and that she would abide by them.

Under the copyright policy, a picture taken by a professional photographer, or a picture that had a copyright notice or “do not copy” indication on the back of it, could not be copied on the photocopy machine.  Several weeks before relator was terminated, her manager orally warned her not to allow customers to make copies of professionally made photos after he observed that relator had done so.  At that time, the manager warned her to check each picture for professional quality, for a copyright notice, or for “do not copy” words.  He also warned her that the employer was sending a “secret shopper” around to various Qualex photo-lab locations in the area to ensure that photo-lab operators were not violating the copyright policies.  The manager testified that he had also orally warned relator one other time not to reproduce professionally made photos.  Relator acknowledged that her manager had warned her not to copy professionally made photos and that she should look for copyright notices or “do not copy” indicators.

In July 2002, a “secret shopper” asked relator to copy a small photo.  Relator testified that, because she was very busy, a Target employee who was assisting her at the photo lab entered the password into the photocopy machine for the “secret shopper.”  The first copy of the picture did not turn out, so relator then assisted the “secret shopper” in making a second copy. 

Relator testified that the photo was small, did not appear to be professionally taken, had spots on it after coming out of the copy machine, and had faded handwriting all over the back of it.  She also testified that she was having problems with her vision that day because she did not have her glasses with her and that when she looked at the back of the picture she did not see a copyright notice or “do not copy” language.  Appellant stated that all she saw on the back of the photo were people’s names handwritten.  After the second copy turned out poorly as well, relator apologized to the “secret shopper” about the poor quality of the copy, gave the picture and both copies to the “secret shopper” without taking any payment, and wrote “paid Barbara photo lab” on the photo envelope.  Relator has conceded that she should not have given the “secret shopper” the copies without payment and that she should have destroyed the copies instead.

The next day, relator’s manager showed relator the photograph.  Relator testified that on the back of the photo she then saw “not to copy” in faint, red letters.  Relator was suspended and then subsequently terminated for employment misconduct.

D E C I S I O N

When reviewing the Minnesota Department of Employment and Economic Development’s determination about an employee’s qualifications for unemployment benefits, we review the commissioner’s representative’s findings rather than the unemployment law judge’s findings.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  We have a narrow standard of review that requires us to view the commissioner’s representative’s findings in the light most favorable to the decision.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  We will not disturb the commissioner’s representative’s findings if there is evidence that reasonably tends to sustain them.  Id.  And we defer to the commissioner’s representative’s ability to weigh conflicting evidence.  Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995).

The commissioner’s representative’s findings are a mixed question of law and facts.  Colburn v. Pine Portage Madden Bros., Inc., 346 N.W.2d 159, 161 (Minn. 1984).  The commissioner’s representative determines the fact question of whether an employee committed the alleged acts of misconduct.  Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  We review de novo whether the employee’s actions constituted employment misconduct and disqualified the employee from receiving unemployment benefits under Minn. Stat. § 268.095, subds. 4, 6 (2002).  Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989). 

The Minnesota Supreme Court recently interpreted the meaning of employment misconduct under Minn. Stat. § 268.095, subd. 6(a)(1), in Houston v. Int’l Data Transfer Corp., 645 N.W.2d 144, 149-50 (Minn. 2002).  In Houston, the court articulated a two-pronged analysis to determine whether an employee’s actions constitute employment misconduct under the statute.  Id. at 149.  “[T]o constitute employment misconduct, [the employee’s] conduct must (1) be intentional and (2) disregard standards of behavior the employer has a right to expect or the employee’s duties and obligations to the employer.”  Id

Under the first prong, the court requires that the intent to engage in the conduct in question be “deliberate” and “not accidental.”  Id.  The second prong requires that the employee’s intent be “separate and distinct from the intent to engage in the conduct in question.”  Id. at 150.  Thus, the Houston analysis for employment misconduct requires 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

Relator argues that the commissioner’s representative erred by determining that she was terminated for employment misconduct when she copied a professionally made photo and gave the copies to the “secret shopper” without charge.  Relator also argues that the commissioner’s representative erred by not making findings that the reasons for termination were pretextual.

The commissioner’s representative found that relator was aware of her employer’s policies against reproducing photos that were made professionally, contained a copyright notice, or stated “do not copy.”  The commissioner’s representative also found that relator knew about her employer’s policy that prohibited her from giving customers photocopies free of charge.  And despite her knowledge of these policies, relator reproduced a professionally made photo and gave it to the “secret shopper” free of charge.  The commissioner’s representative determined that relator knowingly violated her employer’s policies, which disregarded the standards of behavior her employer had a right to expect and, thus, constituted employment misconduct.

Under the first prong of the Houston analysis for employment misconduct, relator must have intended to copy the professionally made photo.  Relator concedes that she made copies of the “secret shopper’s” photo and gave the copies to her free of charge.  She argues that she did not notice such language on the photo, and thus could not have intended to make a copy of a professionally made photo.  But she also concedes that she saw the “do not copy” language on the photo the next day when her manager showed her the photo. 

She also argues that, because the photo was not produced on the day of the hearing before the unemployment law judge, the employer could not prove that the notice was on the photo the day the “secret shopper” came into the store.  However, the commissioner’s representative found that the photo did contain the words “do not copy” on the back, and thus appears to have made a credibility determination regarding relator’s testimony.  See Scheunemann, 562 N.W.2d at 34 (stating that fact finder is charged with making credibility determinations).  Because relator deliberately made the copy and gave the photo free of charge, relator met the intent required in Houston’s first prong. 

Under the second prong of the Houstonanalysis, relator’s conduct must have 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.  See Houston, 645 N.W.2d at 150.  Generally, an employee who refuses to comply with an employer’s reasonable policies and requests engages in employment misconduct, thus disqualifying her from receiving unemployment benefits.  Schmidgall, 644 N.W.2d at 806.  We conclude that the employer’s policies against reproducing copyrighted photos in violation of copyright laws are reasonable, as is the policy requiring customers to pay for their photocopies.

Relator concedes that she knew about her employer’s policies against reproducing professionally made photos and, at least on the day after the incident, that the photo from the “secret shopper” stated on the back that the photo should not be copied.  She also concedes that she should not have given the shopper the photo copies free of charge, but did so to maintain good customer relations.  However, an act that may benefit the employer does not necessarily preclude a finding of employment misconduct.  Soussi v. Blue & White Serv. Corp, 498 N.W.2d 316, 318-19 (Minn. App. 1993). 

As to relator’s argument that the reasons for termination were pretextual, we find no evidence in the record to support her argument that the employer terminated her employment because she had filed a workers’ compensation claim or because she called a telephone technical assistance number at the home office.

Because relator failed properly to confirm the nature of the “secret shopper’s” photo and gave the copies to the shopper without charge, relator disregarded the employer’s reasonable policies of which she was aware and thus violated the standards of behavior that her employer had a right to expect.  Therefore, we conclude that the commissioner’s representative properly determined that relator was terminated for employment misconduct and is disqualified from obtaining unemployment benefits.

Affirmed.