This opinion will be unpublished and

may not be cited except as provided by

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







Harold Sibenaller,





IFP, Inc.,


Commissioner of Economic Security,




Filed July 1, 2003


Anderson, Judge


Department of Economic Security


Brandon V. Lawhead, Lawhead Law Offices, 301 Main Street, Austin, MN  55912 (for relator)


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


IFP, Inc., Hayfield LOC, ATTN: Human Resources, 2125 Airport Drive, Faribault, MN  55021-7798 (pro se respondent employer)


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


U N P U B L I S H E D  O P I N I O N




            Relator challenges the determination of a representative of the Commissioner of Economic Security disqualifying him from receiving unemployment benefits because of employment misconduct.  Because we conclude that the commissioner’s representative’s decision was unsupported by the evidence, we reverse.



            Relator Harold Sibenaller was employed by respondent IFP, Inc. (IFP), a food and pharmaceutical-manufacturing company, from December 1994 to January 31, 2002.  Sibenaller’s last position with IFP was as a production supervisor.  In that capacity, his responsibilities included managing a division of production activities in the process portion of the plant, enforcing work rules, and ensuring that operators on the production line performed their jobs accurately and in a timely fashion. 

            In August 2001 Sibenaller attended a meeting where he was instructed on how to complete forms known as “batch sheets.”[1]  Sibenaller was instructed to neatly fill in the blank boxes on the sheet but there was no further expectation at that time that the supervisors would also initial the documents.  Subsequently, on January 24, 2002, Sibenaller and other supervisors had another meeting and the issue of having the production supervisors initial the batch sheets was discussed.  Sibenaller testified that because the meeting was cut short and no conclusion as to initialing was announced, he continued IFP’s practice of not initialing the batch sheets.

            Also, at this January 24 meeting, production manager Tim Dahle advised Sibenaller and the other supervisors of work rules.  First, he reminded all the supervisors that they were expected to begin and end their shifts as the schedule dictated and to punch out every day for a half-hour lunch break.  Dahle also told the supervisors that overtime had been authorized so that each of them could remain on the clock after their shift for a half hour to review the line operators’ batch-sheet documentation for completeness and accuracy.  When Sibenaller expressed dissatisfaction with the requirement to review this information, Dahle told him and the other supervisors that noncompliance with the work rules would result in disciplinary action.

            After this meeting, Sibenaller occasionally failed to punch out for lunch and keep his regularly scheduled work hours.  Sibenaller testified that, at least once, he punched out for lunch but was forced to punch back in when employees came to him with questions.  Sibenaller testified that these other employees

had questions of how to do stuff so I had to go out and show them how to do it or do it myself. * * * *  The job was more important to me than * * * taking a half hour lunch.


On January 28, 2002, general manager Rolf Rogers spoke with Sibenaller about his concern that Sibenaller was not following work policies.  Thereafter, Sibenaller punched out for lunch each day until he was fired two days later. 

            The final incidents that led to Sibenaller’s termination of employment occurred on January 30, 2002.  IFP had training sessions scheduled for certain employees that day and Dahle posted a schedule listing when each line operator was to be relieved from work to attend the training.  The operators on Sibenaller’s line were scheduled to go to training after completing their shift, but Sibenaller removed two employees from the line during their shift to attend the training.  He replaced these employees with employees who were not trained to work on the product being manufactured.

            During that same shift, someone from Sibenaller’s crew filled out the batch sheets before the work was completed, rather than afterward as required.  According to Rogers, such an act is a violation of company policy and Food and Drug Administration (FDA) regulations that, if discovered by the FDA, could subject IFP to criminal investigation and plant shutdown.  Late in his shift that day, Sibenaller was required to be part of a tour of the plant.  When the tour ended, the next shift’s supervisor relieved him; Sibenaller left that day without noticing the mistake on the batch sheets.[2] 

            The client for whom Sibenaller’s line was producing the pharmaceutical product was touring the building and inspecting the production line that day.  When the customer noticed the mistake on the batch sheets, the client and IFP shut down the line for three days to review procedures and reset the line. 

            Dahle discharged Sibenaller as of January 30, 2002, for failing to catch the production errors on the batch sheets.  Rogers testified that Sibenaller admitted at the time of his firing that he had not followed the posted training schedule and had not adequately checked the batch sheets.  Sibenaller denies making any such admission.  Respondent Department of Economic Security notes that in his application for benefits, Sibenaller stated that to avoid being discharged he could have “check[ed] the paperwork.”

            An unemployment law judge determined that Sibenaller did not commit employment misconduct and that he was not disqualified from receiving unemployment benefits.  On October 7, 2002, however, a representative of the Commissioner of Economic Security reversed, holding that Sibenaller had committed misconduct. 



            In unemployment benefit cases, this court determines if the record reasonably supports the commissioner’s representative’s decision.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  We review the factual findings of the representative in the light most favorable to the commissioner and we will not disturb those findings if there is evidence in the record that reasonably sustains them.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  When parties present conflicting evidence, we defer to the representative’s findings and ability to weigh the evidence; we will not consider that evidence de novo on review.  Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995). 

The issue is not whether Sibenaller should have been fired, but whether he should be denied unemployment benefits.  McCourtney v. Imprimis Tech., Inc., 465 N.W.2d 721, 724 (Minn. App. 1991).   Whether an employee engaged in disqualifying misconduct is a mixed question of law and fact.  Schmidgall, 644 N.W.2d at 804.  The factual findings should not be overturned on appeal unless the record does not reasonably support those findings.  Id.  But whether an employee’s actions constitute misconduct is a question of law that we review de novo.  Ress v. Abbott N.W. Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989). 

Respondent contends that Sibenaller was properly discharged for intentional employment misconduct, which is defined 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; 


Minn. Stat. § 268.095, subd. 6(a)(1) (2002).[3] 

The 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 (Minn. 2002).  The Houston court articulated a two-pronged test to determine whether an employee’s actions constitute “employment misconduct.”  Id. at 149.  To 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 defines conduct that is intentional to be “deliberate” and “not accidental.”  Id. 

            The second prong identified in Houston 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.



            Sibenaller first argues that his failure to follow an order to punch in and out as the work schedule dictated and to take a half-hour lunch each day did not constitute misconduct.  He claims that because the behavior ultimately benefited IFP by keeping the production line moving, it cannot be labeled misconduct under Minn. Stat. § 268.095.

            IFP claims, though, that just because an employee’s conduct may have beneficial results for the employer it does not necessarily preclude a finding of employment misconduct.  See Soussi v. Blue & White Serv. Corp., 498 N.W.2d 316, 318-19 (Minn. App. 1993) (holding that actions constituting a benefit to an employer do not necessarily preclude a misconduct finding).  In Soussi, a former corporate president disregarded a resolution of the corporation’s board of directors precluding employees from entering into contracts without authorization and approval of the board.  Id. at 317.  This court held that any “good faith” belief that the relator’s side contract would be beneficial to the company is irrelevant in examining whether his actions constituted misconduct.  Id. at 318.  Instead, this court stated that the relator’s disregard for the company’s business policies violated the standards of behavior that the employer had a right to expect and therefore he was properly disqualified from obtaining benefits.  Id. at 319.

            Although here IFP had a policy to punch out for a half-hour lunch break each day, Sibenaller’s “disregard” of this policy to assist other employees in keeping the line operating is hardly misconduct.  IFP expected Sibenaller to answer employee questions or assist line workers when problems arose, whether or not he was on break.  To assume that IFP’s lunch policy envisioned supervisors disregarding employee concerns in favor of taking a full half-hour break borders on the ridiculous.  Although Sibenaller possibly could have returned later to resume his break, at least on some days, Sibenaller felt that he could not do so and continue to ensure that his line operated effectively. 

            Sibenaller next maintains that the commissioner’s representative erred by determining that his replacement of experienced line workers with inexperienced ones constituted misconduct.  He maintains that he was forced to put inexperienced employees on the line because IFP required him to keep the production line moving, despite the unavailability of more experienced personnel.

An employee’s decision to intentionally violate his employer’s reasonable policy constitutes employment misconduct.  Schmidgall, 644 N.W.2d at 806.  Where an employee’s conduct is deliberate and intentional, a single incident is sufficient to establish misconduct.  Ress, 448 N.W.2d at 524.

IFP apparently relies on the existence of the posted training schedule to establish that Sibenaller must have intentionally acted contrary to the company’s policy.  It appears to be undisputed that Sibenaller did not follow the posted schedule.  But there is little evidence that Sibenaller acted intentionally or even negligently.  Respondents did not establish, for example, that Sibenaller knew of the training schedule and intentionally disregarded it by sending his workers to training at the wrong time.  Indeed, Sibenaller denied admitting at the time of his termination that he had been given any instructions on relieving employees. 

IFP did not adequately make known its training policy and therefore Sibenaller’s actions do not constitute employment misconduct.  Because it is the employer’s duty to supply well-trained employees and there is no evidence in the record to indicate that Sibenaller intentionally placed inexperienced or unqualified staff on the line, Sibenaller’s conduct did not rise to the level of intentional misconduct as contemplated by Houston and Minn. Stat. § 268.095, subd. 6(a)(1).

            Finally, the commissioner’s representative held that Sibenaller’s failure to prevent or detect the mistakes in the paperwork on January 30 was “not mere inadvertence or simple unsatisfactory conduct.”  Because IFP made review of paperwork part of Sibenaller’s job and authorized overtime to ensure that supervisors had time to do such work, the commissioner’s representative concluded that the failure to complete this work constituted employment misconduct.

            Although it is unclear whether Sibenaller adequately reviewed this paperwork before leaving, it is undisputed that a mistake occurred on the batch sheets.  The commissioner’s representative speculated that Sibenaller’s replacement of trained line workers with inexperienced employees may have led to the mistaken paperwork.  But because no evidence exists to support such a supposition, it is just as likely that IFP’s requirement that Sibenaller participate in a tour of the building that day may have caused the error. 

            Simply put, there has been no showing that Sibenaller intentionally disregarded duties that IFP had a right to expect him to perform.  Mere inadvertence or unsatisfactory behavior is not employment misconduct.  Minn. Stat. § 268.095, subd. 6(b).  Although we recognize that IFP was forced to shut down production for a number of days to fix the problem caused by the mistaken batch sheets, because there is insufficient evidence to support a finding of employment misconduct, we conclude that reversal of the commissioner’s representative is appropriate.


[1]  Batch sheets consist of a list of ingredients that go into one particular run, or “batch,” and the particular steps taken to create the product.

[2]  The parties dispute whether Sibenaller left early that day and whether he completed his review of the paperwork. 

[3] Before 1997, employment misconduct was not defined by statute.  The unemployment compensation statute merely provided that “discharge for misconduct” was a disqualifying condition for unemployment benefits.  Houston v. Int’l Data Transfer Corp., 645 N.W.2d 144, 149 (Minn. 2002) (citing Minn. Stat. § 268.09, subd. 1(b) (1996) and Minn. Stat. § 268.09, subd. 1(1) (1971)).  In 1973, the supreme court interpreted the term “misconduct” as “willful or wanton disregard of an employer’s interests” or a “deliberate violation or disregard of standards of behavior.”  Tilseth v. Midwest Lumber Co.,, 295 Minn. 372, 374-75, 204 N.W.2d 644, 646 (1973).  The Tilseth description of “misconduct” was in effect until the legislature statutorily defined the term in 1997 and changed the statutory reference to “employment misconduct.”  Houston, 645 N.W.2d at 149 (citing Act of Apr. 23, 1997, ch. 66, § 49, 1997 Minn. Laws 357, 387 (codified at Minn. Stat. § 268.09, subd. 12 (Supp.1997)).