This opinion will be unpublished and

may not be cited except as provided by

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






Charles N. Ngo,





Amtech Electric, Inc.,



Commissioner of Employment and Economic Development,



Filed August 12, 2003


Gordon W. Shumaker, Judge


Department of Employment and Economic Development

Agency File No. 4874 02




Russell A. Norum, 2538 Nicollet Avenue South, Minneapolis, MN 55404 (for relator)


Paul J. Zech, Janet C. Ampe, Felhaber, Larson, Fenlon & Vogt, P.A., 225 South Sixth Street, Suite 4200, Minneapolis, MN 55402-4302 (for respondent-employer)


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




            Considered and decided by Anderson, Presiding Judge, Shumaker, 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 Department of Employment and Economic Development’s determination that he committed employment misconduct.  Because the commissioner’s representative properly ruled that relator was disqualified from receiving unemployment-compensation benefits as a result of employment misconduct, we affirm.


            Relator Charles N. Ngo worked as an electrician for respondent Amtech Electric, Inc.  Ngo was a part-owner of Amtech before he sold his interest to his partner, Nhut Dang, in May 2001.  Ngo had signed a noncompete agreement with Amtech.  He also signed an agreement dated November 18, 2001, that required him to “[i]nform Roger [Laycock] or Nick [Dang] of any meeting or ‘WalkThru’ with potential customers or projects prior to attending.”

            On February 19, 2002, Ngo received a call from El Kora Market about a project.  He did not call Dang or Laycock about this project prior to going to El Kora Market and giving an estimate for the requisite work.  On February 20, 2002, Ngo began working on the El Kora Market project.  On February 21, 2002, Amtech terminated Ngo for, among other reasons, performing work for El Kora Market without Amtech’s knowledge or consent. 

Ngo applied for unemployment benefits with the Department of Employment and Economic Development (DEED).  DEED denied Ngo’s application because it found that Amtech terminated Ngo for employment misconduct.  On appeal, the unemployment law judge (ULJ) reversed DES’s determination of disqualification.  Amtech appealed and the commissioner’s representative reversed the ULJ’s finding and ruled that Ngo committed employment misconduct when he “moonlighted” at El Kora Market.  Ngo petitioned this court for certiorari review.


            We review the commissioner’s representative’s findings, not the unemployment law judge’s findings.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  The commissioner’s representative’s findings raise a mixed question of law and fact.  Colburn v. Pine Portage Madden Bros., Inc., 346 N.W.2d 159, 161 (Minn. 1984).  Whether an employee committed the specific act or acts alleged to be misconduct is a fact question.   Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  But we exercise de novo review to determine whether Ngo's actions constituted employment misconduct as a matter of law, thus disqualifying him from receiving unemployment benefits under Minn. Stat. § 268.095 (2002).  Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).

[Our] narrow standard of review requires that findings [of fact] be viewed in the light most favorable to the decision, and if there is evidence reasonably tending to sustain them, they will not be disturbed.


White v. Metro. Med. Ctr., 332 N.W.2d 25, 26 (Minn. 1983). 

When the parties have presented conflicting evidence on the record, this court must defer to the Commissioner’s ability to weigh the evidence; we may not weigh that evidence on review.


Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995). 

            We conclude that there is evidence reasonably tending to support the commissioner’s representative’s determination that Ngo violated his November 18, 2001 agreement to “advise Amtech of any potential customers or projects before meeting with the customers.”  Ngo admitted that he did not tell Amtech about the El Kora Market project prior to his February 19, 2002 meeting.  When asked, “Did you tell anyone at Amtech that you were going [to El Kora Market?],” Ngo responded, “No I didn’t * * *.”  Thus, the commissioner’s representative properly determined that Ngo violated the November 18, 2001 agreement when he met with El Kora Market without first informing Laycock or Dang about the meeting.

            Ngo argues that the November 18, 2001 agreement was not part of his employment contract.  This argument fails, however, because Ngo agreed to follow this policy when he signed the November 18, 2001 agreement, whether or not the agreement became part of his employment contract.  He also argues that such a violation is not a sufficient reason to terminate him.  But we need not address this issue because we do not determine whether Ngo should have been terminated, but rather whether he should be denied unemployment compensation benefits because of his termination.  Hansen v. C.W. Mears, Inc., 486 N.W.2d 776, 780 (Minn. App. 1992), review denied (Minn. July 16, 1992). 

Next, we must determine as a matter of law whether Ngo committed employment misconduct when he violated his agreement.  Under Minnesota law, an employee is disqualified from receiving unemployment benefits if he is discharged for employment misconduct.  Minn. Stat. § 268.095, subd. 4(1).

The commissioner’s representative determined that Ngo was discharged for employment misconduct under Minn. Stat. § 269.095, subd. 6(a)(1), which defines employment misconduct 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.


But employment misconduct does not include

[i]nefficiency, inadvertence, simple unsatisfactory conduct, poor performance because of inability or incapacity, or absence because of illness or injury with proper notice to the employer.


Minn. Stat. § 268.095, subd. 6(b).


The first prong of the employment-misconduct definition is that an employee’s conduct was intentional.  The supreme court has recently defined intentional conduct to be “deliberate” and “not accidental.”  Houston v. Int’l Data Transfer Corp., 645 N.W.2d 144, 149 (Minn. 2002). 

Here, Ngo’s attending a meeting with El Kora Market without first calling Laycock or Dang to make them aware of the job was deliberate conduct.  Ngo’s conduct was intentional because his signature on the November 18, 2001 letter proves that he received and read this agreement and that he knew that Dang did not approve of him starting a job before telling him about it.  Thus, Ngo’s conduct was intentional conduct.  See Soussi v. Blue & White Serv. Corp., 498 N.W.2d 316, 318 (Minn. App. 1993) (holding that an employee committed misconduct when he entered into a contract without authorization, which he knew was against the board’s policy); Sivertson v. Sims Sec., Inc., 390 N.W.2d 868, 871 (Minn. App. 1986) (stating that a knowing violation of an employer’s rules is misconduct).

The second-prong of the employment misconduct definition is that

the employee * * * 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.


Houston, 645 N.W.2d at 150.  The commissioner’s representative determined that:

an employer has a right to expect that an employee will not ignore reasonable agreements and instructions.  Amtech had a right to expect that Ngo would * * * abide by his agreement to advise Amtech of any potential customers or projects before meeting with the customers.


The supreme court has provided that “[a]s a general rule, refusing to abide by an employer’s reasonable policies and requests amounts to disqualifying misconduct.”  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002) (citation omitted).

            Here, Amtech’s policy that Ngo tell Laycock or Dang about a potential customer or job prior to conducting a meeting or a “Walk-Thru” was a reasonable policy because it allowed Amtech to keep track of the jobs that Ngo and the company had, and it ensured that Ngo was not competing with Amtech in violation of the noncompete agreement.  Ngo’s failure to call his employers after receiving El Kora Market’s request for service violated Amtech’s policy and constitutes the disregard of a standard of behavior that Amtech had a right to expect.  Ngo knew the cell-phone numbers of Dang and Laycock, and Laycock testified that the phones were turned on.  Ngo’s failure to call either of them prior to going to El Kora Market was a deliberate act of employment misconduct.

            Although the parties raised other issues alleging that Ngo violated his noncompete agreements with Amtech and the union and failed to transport Amtech’s tools in the company’s truck, we specifically do not address these issues and decide this case based solely on Ngo’s violation of his November 18, 2001 agreement with Amtech.  Also, we need not address Ngo’s argument that Amtech’s testimony was based on improper hearsay evidence. See Seemann v. Little Crow Trucking, 412 N.W.2d 422, 426 (Minn. App. 1987) (providing that the rules of evidence do not need to be applied in unemployment compensation benefit proceedings).