This opinion will be unpublished and

may not be cited except as provided by

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







Jyni Koschak,


RCM Technologies (USA), Inc.,

Commissioner of Economic Security,


Filed January 7, 2003


Wright, Judge


Department of Economic Security

File No. 1192801


Martha A. Eaves, Benjamin L. Weiss, Southern Minnesota Legal Services, Inc., 300 Minnesota Building, 46 East Fourth Street, St. Paul, MN  55101; and


Charles H. Thomas, 12 Civic Center Plaza, Suite 3000, Mankato, MN  56002-3304 (for relator)


RCM Technologies, Inc., P.O. Box 988, Morlton, NJ  08053 (respondent)


Linda A. Holmes, 390 N. Robert Street, St. Paul, MN  55101 (for respondent Commissioner of Economic Security)



Considered and decided by Shumaker, Presiding Judge, Anderson, Judge, and Wright, Judge.

U N P U B L I S H E D  O P I N I O N



Relator challenges the decision by the commissioner’s representative that she engaged in misconduct that disqualified her from receiving unemployment benefits.  The commissioner’s representative found that relator’s actions showed a disregard of the standards of behavior her employer had a right to expect.  Because relator did not intentionally ignore standards of behavior that her employer had a right to expect, we reverse.



Relator Jyni Koschak worked for respondent RCM Technologies for four years.  She was one of several RCM employees who performed services for RCM’s client, 3M, at the 3M facility.  RCM fired Koschak after she distributed a going-away card for a co-worker to fellow RCM and 3M employees. 

Attached to the card was a note explaining that Koschak’s co-worker, DeMonica Mottley, was a single parent with a heart condition and that Mottley’s two children had asthma.  The note stated that Mottley “was asked to sign a form promising that she would not miss any more work for the next 6 months,” and explained that in light of her children’s health problems, Mottley resigned her position, rather than signing the form.  The note concluded, “Let’s send her off with some $$$.” 

Koschak was fired one month after distributing the note and card.  Her discharge notice stated that she violated policies prohibiting disclosure of confidential employee information outside RCM and inappropriate use of electronic communications.  Koschak’s request for unemployment benefits was denied based on the determination that she was discharged due to employment misconduct.  She appealed to the Minnesota Department of Economic Security.  At the hearing on November 29, 2001, Koschak testified that she was motivated only by compassion for Mottley in distributing the note.  Koschak did not believe that the information contained in the note was confidential, because Mottley had openly shared her circumstances with several employees at RCM and 3M.  Koschak also did not believe her actions were prohibited, because it was common to solicit money for various employee causes.  Koschak knew that RCM wanted to portray itself favorably to its client, 3M, and she did not intend the note to reflect poorly on RCM.   Koschak also testified that she did not understand that the confidential information and electronic communications policies barred her actions.  The confidential information policy was part of Koschak’s employment contract and both policies were part of the employee handbook.

Although the note was circulated to Koschak’s supervisor, RCM gave Koschak no warning that distributing the card and note was prohibited or that the note’s content violated company policy.  RCM’s human resources manager testified that the one-month delay in discharging Koschak was due to an information-gathering process.  According to the manager, Koschak was not given the usual three-part warning process, however, because her offense warranted an “immediate discharge.” 

When the unemployment law judge denied the unemployment benefits, Koschak appealed to the Commissioner of Economic Security.  In its April 15, 2002 decision, the commissioner’s representative found that Koschak was not entitled to unemployment benefits, because she was discharged for “employment misconduct.”  Specifically, the commissioner’s representative concluded that Koschak’s actions in distributing a note that contained confidential information and “negative inferences about the management of RCM” to RCM’s client, 3M, qualified as “intentional conduct in violation of the standards of behavior the employer has a right to expect” within the meaning of Minn. Stat. § 268.095, subd. 6(a)(1) (2000).  Koschak brought a certiorari appeal of the decision of the commissioner’s representative.



On appeal, this court reviews the commissioner's decision, not that of the unemployment law judge.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  We review findings of fact in the light most favorable to the commissioner's decision and will not disturb them provided there is evidence that reasonably tends to sustain them.  Ress v. Abbott N.W. Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).  Whether an employee committed disqualifying misconduct is a mixed question of fact and law.  Colburn v. Pine Portage Madden Bros., Inc., 346 N.W.2d 159, 161 (Minn. 1984).  The determination of whether the employee committed a particular act is a question of fact.  Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  Whether the act constitutes misconduct is a question of law on which this court is “free to exercise its independent judgment.”  Ress, 448 N.W.2d at 523 (citations omitted). 

An employee who is discharged for misconduct is disqualified from receiving unemployment compensation benefits.  Minn. Stat. § 268.095, subd. 4(1) (2002).  Employment misconduct is defined as

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.


Id., subd. 6(a)(1) (2002).  Koschak argues that because she did not possess the requisite intent, the commissioner erred in finding that circulating the farewell note among 3M employees was employment misconduct.  We agree. 

The Minnesota Supreme Court articulated a two-pronged test to determine whether an employee’s actions constitute “employment misconduct” within the meaning of Minn. Stat. § 268.095, subd. 6(a)(1).  Houston v. Int’l Data Transfer Corp., 645 N.W.2d 144, 149 (Minn. 2002).  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.  The second prong of the Houston test requires an analysis of the employee’s intent that is “separate and distinct” from the intentional conduct required in the first prong.  Id. at 150.  Thus, the Houston test 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.



We conclude, as neither party disputes, that the first prong of the Houston test is satisfied.  Koschak intentionally distributed the note to 3M employees.  Thus, our analysis focuses on the second prong to determine if the record supports a finding that Koschak possessed the requisite intent to disregard the standards of behavior her employer had a right to expect when she circulated the farewell note.  

            The commissioner concluded that, because the note revealed confidential information and contained negative inferences about RCM, Koschak committed “intentional conduct in violation of standards of behavior which an employer has a right to expect” when she circulated the note among 3M and RCM employees.  Koschak correctly argues that the presence of negative inferences alone does not establish that she sent the note with the intent required to establish disqualifying employment misconduct.  Koschak’s actions must be examined in totality to determine whether she sent the note with the intent to ignore standards of behavior that RCM has a right to expect, thereby warranting disqualification from receiving unemployment benefits.

            An employee’s decision to violate intentionally a reasonable policy of the employer constitutes employment misconduct.  Schmidgall v. Filmtec Corp., 644 N.W.2d 801, 806 (Minn. 2002).  Inadvertent disregard for an employer’s policies and standards of behavior, however, does not satisfy the intent requirement.  See Group Health Plan, Inc. v. Lopez, 341 N.W.2d 294, 297-98 (Minn. App. 1983) (no disqualifying misconduct found where employee violated vague policy).  An employee’s conduct must be “deliberate, calculated, and intentional.”  McGowan v. Executive Express Trans. Enters., Inc., 420 N.W.2d 592, 596 (Minn. 1998).  Where the conduct is deliberate and intentional, a single incident is sufficient to establish misconduct.  Ress, 448 N.W.2d at 524.  In sum, a finding of misconduct requires a showing that there is a deliberate violation of a reasonable policy of which the employee is aware and chooses to ignore.  Schmidgall, 644 N.W. 2d at 806.

            RCM’s policy regarding confidential information does not explicitly proscribe disclosure of the type of information contained in the note.  As included in Koschak’s employment termination letter, it provides, in pertinent part,

[y]ou have the obligation to insure that all confidential information remains the property and private information of RCM.  Employees who disclose confidential information will be subject to disciplinary action up to and including immediate discharge. 


The policy restricts disclosure of trademark secrets, proprietary business interests, and “other confidential information.”  “Confidential information” is not further defined.  It is undisputed that when Koschak distributed the note, Koschak did not understand that RCM’s request that Mottley sign a form promising no additional absences from work, which Mottley disclosed freely to Koschak and other co-workers, was confidential.  Consequently, Koschak did not know that the note contained the type of information RCM intended to be covered by its policy.  Our review of the record leads us to conclude that Koschak’s unwitting disclosure of what she later learned the employer claimed to be confidential information does not constitute an intentional violation of a reasonable policy of the employer.

            An employee’s deliberate action in contravention of an employer’s warning also constitutes misconduct.  See Schmidgall, 644 N.W.2d at 805-06 (failure to report injury during same shift after counseling and two written warnings by employer); Ideker v. LaCrescent Nursing Center, Inc., 296 Minn. 240, 241, 207 N.W.2d 713, 714 (1973) (use of hostile language on vulnerable patient on two separate occasions after receiving warning not to do so).  But even after the note was circulated to her supervisor, Koschak never received a warning, which would have enabled her to mitigate the impact of the disclosure by retrieving the note from circulation.  Koschak did not learn that she had done anything wrong until her employer discharged her one month after the note was circulated.

            The uncontroverted evidence establishes that Koschak, motivated by compassion for her co-worker, intended to solicit and explain why financial support for her co-worker was needed.  Koschak did not consider her co-worker’s departure disciplinary, nor did she consider the events preceding the departure confidential in light of Mottley’s disclosure to Koschak and others.  Moreover, the solicitation was consistent with RCM’s corporate culture as RCM and 3M employees often circulated solicitations for financial support among each other for worthy causes.  See Riley v. Transp. Corp. of America, Inc., 462 N.W.2d 604, 608 (Minn. App. 1990) (employee did not engage in disqualifying misconduct where employee believed activity was within normal workplace culture).

            Citing Soussi v. Blue & White Serv. Corp., 498 N.W.2d 316 (Minn. App. 1993), the commissioner argues that Koschak cannot knowingly violate RCM’s expectations or policies and later claim her good faith motivation is sufficient to excuse misconduct.  In Soussi, we concluded that an employee, despite his good faith belief that his actions would benefit the employer, committed misconduct because he knew his actions were contrary to a resolution passed by the employer’s board of directors.  Id. at 318-19.  The employee’s actions in Soussi are distinguishable from Koschak’s actions in two respects.  First, unlike RCM’s policy, the employer’s policy as set forth in the board resolution was unambiguous.  Second, unlike Koschak, the employee deliberately acted contrary to the resolution.  The record before us simply does not support the application of Soussi to Koschak’s conduct.

On appeal, counsel for the commissioner ably represented the commissioner’s position notwithstanding the impediments presented by the facts of this case and the commissioner’s inattention to the requisite intent to establish “employment misconduct.”  We conclude, however, that Koschak is entitled to unemployment benefits, because her actions do not constitute misconduct under the Houston test.  Because Koschak did not deliberately ignore standards of behavior that RCM had a right to expect when she circulated a farewell card and note among RCM and 3M employees soliciting financial support for a co-worker who was resigning in anticipation of additional health-related absences, we reverse the commissioner’s denial of unemployment benefits based on employee misconduct.