This opinion will be unpublished and

may not be cited except as provided by

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






Gregory L. Jennings,





Diamond Products Company,



Commissioner of Employment and Economic Development,



Filed September 16, 2003


Halbrooks, Judge



Department of Employment and Economic Development

File No. 9979 02


Thomas H. Boyd, Matthew D. Spohn, Winthrop & Weinstine, P.A., 225 South 6th Street, Suite 3500, Minneapolis, MN 55402 (for relator)


Carol A. Ellingson, Bend & Ellingson, P.A., 6 West 5th Street, Suite 700, St. Paul, MN 55102-1420 (for respondent Diamond Products)


Lee B. Nelson, Philip B. Byrne, 390 North Robert Street, St. Paul, MN 55101 (for respondent commissioner)


            Considered and decided by Halbrooks, Presiding Judge, Anderson, Judge, and Forsberg, Judge.*

U N P U B L I S H E D   O P I N I O N


            Relator argues that the record fails to reasonably support the decision of the commissioner’s representative that he was discharged for misconduct because he did not intentionally engage in misconduct and because the company policy was vague.  We conclude that the evidence in the record reasonably tends to sustain the findings of the commissioner’s representative and affirm.


For 26 years, relator Gregory M. Jennings worked for Diamond Products Company (Diamond), a producer of personal-care products, and its predecessor company, Gillette.  His last ten years were spent working as a chemical mixer.  As a chemical mixer, relator created products by following a formula to add the proper chemicals to a batch.  The federal Food and Drug Administration (FDA) regulated some of Diamond’s personal-care products, such as roll-on deodorants.  FDA regulations provide that each chemical “component shall be added to the batch by one person and verified by a second person.”  21 C.F.R. § 211.101(d) (2001). 

In May 2002, in response to a customer complaint, Diamond investigated a specific batch process.  The investigation showed that an incorrect chemical had been added to the solution that was part of a batch that relator had verified by signing the batch sheet.  Relator subsequently admitted that he had not personally observed or verified the solutions added to the batch.  Relator was terminated because he (1) did not follow Diamond’s batch-documentation policy, (2) falsified the batch document, and (3) violated both FDA regulations and the company’s integrity policy.  Relator’s explanations were that he thought that he was following the correct procedure when he acted and that his actions were identical to what other employees did.  But at the hearing before the unemployment law judge, Diamond produced evidence of several meetings that were held to explain the proper verification policy, beginning when Gillette still owned the company. 

The record showed that on June 3, 1996, Gillette held a meeting for its mixers to discuss its batch-documentation policy.  Gillette also issued a document for mixers.  The document stated that for “FDA products, you MUST have a 2nd person physically watch and verify [that] the correct quantity and correct chemicals go into the batch.  Locker room signatures are not acceptable.”

On October 28, 1996, Gillette held another meeting for mixers.  The sign-in sheet for that meeting included relator’s name.  Relator testified that, although he did not specifically remember the meetings, he must have been there if he signed in.  At that meeting, Gillette distributed a document that stated, “All Roll-on Products and Dandruff Shampoo require a 2nd Checker Signature.  This person must observe you adding the chemicals to the batch and is verifying that the correct chemical and quantity is being added. . . .  This is a critical FDA requirement.”  The handout was also posted after the meeting. 

On March 12, 1998, Gillette held another meeting after an incident with an improper batch.  The meeting focused on Gillette’s “integrity policy.”  Relator’s name again appeared on the sign-in sheet.  A year later, on March 15, 1999, a memorandum outlining the integrity policy was issued to mixers.  The policy explained that disregarding the procedures would lead to termination. 

In April 2000, the Gillette facility where relator worked was purchased by respondent Diamond.  Diamond continued the Gillette integrity policy.  Kevin Riger, a chemical-operations manager for Diamond, testified that relator was not at the initial meeting, but that he met with relator the following day to go over the matters covered by the meeting and the handout. 

Relator testified that “for years” the verification process consisted of the person designated as the checker asking the chemical mixer what went into the batch.  If the mixer said that all the proper chemicals were in the batch, the checker would just sign to verify that the proper chemicals had been added.  Relator testified that he would ask the mixer what chemicals were added, rather than observe the mixer add each chemical, because

[f]or one my supervisor, my direct supervisor was doing it for me over and over and over again.  Also throughout the years that is exactly how it’s been done and I believe that’s how we thought they wanted it done.  And there was no training to say this is how they want it done over those years.


Relator testified that “I didn’t see it correctly on my shift” and he did not believe that he was violating company policy. 

            After his termination, relator applied for unemployment benefits and was denied by the Minnesota Department of Employment and Economic Development.  Relator appealed, but the unemployment law judge affirmed the finding of misconduct and denied benefits.  The commissioner’s representative also affirmed.  The commissioner’s representative determined that (1) relator “knew the integrity policy stated that falsifying batch documents was grounds for dismissal;” (2) relator admitted that he had not verified the chemical batch before signing off on the additions; and (3) relator’s “statement he thought he was following the proper procedure is not reasonable.”  The commissioner’s representative also concluded that whether or not other employees followed the same procedure did not excuse relator’s misconduct.  This appeal follows.




Relator makes two primary arguments concerning why he should not be disqualified from unemployment benefits.  First, he argues that there is no evidence that he had the intent to engage in misconduct.  Second, he contends that he did not engage in misconduct because Diamond never implemented or enforced the visual-verification policy in his department and, as a result, the procedure was vague and confusing. 

An employee discharged for misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4(1) (2002).  “We review the factual findings of the commissioner’s representative in the light most favorable to the decision and determine whether there is evidence in the record that reasonably tends to sustain those findings.”  Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996).  The ultimate determination of whether an employee was properly disqualified from receiving benefits, however, is a question of law, and appellate courts exercise independent judgment when deciding that question.  Id.

Employment misconduct is defined under Minnesota law as intentional conduct in violation of the standards of behavior that the employer has a right to expect or negligent or indifferent conduct demonstrating a lack of concern for the employer.  Minn. Stat. § 268.095, subd. 6(a)(1), (2) (2002).  The supreme court recently interpreted the statutory definition of misconduct in Houston v. Int’l Data Transfer Corp., 645 N.W.2d 144, 149 (Minn. 2002), as including two prongs.  On review, a court must determine whether (1) the conduct is intentional and (2) the conduct disregards either “standards of behavior that an employer has the right to expect or the employee’s duties and obligations to the employer.”  Id.  The supreme court interpreted “intentional” to mean “deliberate and not accidental.”  Id.  The terms of the second prong were interpreted to “contemplate that the word ‘disregard’ includes intent that is separate and distinct from the intent to engage in the conduct in question.”  Id. at 150.  Therefore, there must be a showing “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.

            Here, the first prong of the intentional misconduct test has been met because relator testified that he deliberately signed the November 2001 batch sheet.  Relator argues that the second prong cannot be met because he did not believe that, by signing the batch sheet without actually observing the chemical additions, he was disregarding his duties and Diamond’s expectations.  But the commissioner’s representative found that relator’s “statement that he thought he was following the proper procedure” was not credible.  The commissioner’s representative concluded that the actions of other employees were not important and that relator intentionally disregarded the duties and obligations that he owed to his employer.  We will uphold the commissioner’s factual findings if evidence in the record reasonably tends to sustain those findings.  Lolling, 545 N.W.2d at 377. 

Relator testified that he would typically ask the mixer rather than observe the mixer add each chemical.  But relator also testified that he knew it was a violation of the integrity policy to sign as a checker without observing the mixing.  He admitted attending the training and instructional meetings held by Gillette and Diamond and recalled a training that stated that a second person must verify the addition of chemical components for roll-on products.  The handouts distributed at the meetings and thereafter posted in work areas clearly explain that a second person must physically watch and verify that the correct quantity and correct chemicals go into the batch. 

When parties present conflicting evidence, we defer to the findings of the commissioner’s representative and may not again review the evidence.  Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995).  Because the commissioner’s findings have reasonable evidentiary support, we defer to his review of the conflicting evidence and will not set aside the findings.


Relator also contends that he did not engage in misconduct because evidence that his supervisor and other employees on his shift never visually verified a batch demonstrates that Diamond never implemented or enforced the visual-verification policy in his department.  As a result, the procedure was vague and confusing.  “As 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).  But “[a] good faith misunderstanding of the employer’s rules or policies does not constitute misconduct.”  Tuckerman Optical Corp. v. Theony, 407 N.W.2d 491, 493 (Minn. App. 1987) (citation omitted).

Relator relies on Bautch v. Red Owl Stores, Inc., 278 N.W.2d 328 (Minn. 1979), for the proposition that an employee who follows the practice of management, even if the management’s practice violates a written policy, does not engage in misconduct.  In Bautch, the supreme court upheld a jury’s verdict that the plaintiff was wrongfully terminated.  There, the employee, a waitress, was fired for consuming food and drink without paying at the restaurant where she worked, in violation of a posted policy.  Id. at 329.  The waitress was never directly advised to stop the practice.  Id. at 330.  The court concluded that, because other employees and management violated the posted policy by also consuming food and drink without paying, and because the plaintiff was never told to discontinue the practice, the employer’s policy was “vague and uncertain.”  Id. at 331.  The supreme court held that the plaintiff was wrongfully terminated because “there can be no disobedience in the first instance if there is no clear prohibition of the conduct.”  Id. 

But unlike the employee in Bautch, relator here was directly advised that a mixer must have a second person physically watch and verify that the correct quantity and correct chemicals go into the batch.  This policy was communicated at several meetings over the course of a few years.  Moreover, the record shows that relator knew that the integrity policy stated that falsifying batch documents was grounds for dismissal.  On this record, it cannot be said that Diamond “never enforced” the mixer policy or the integrity policy or that “management had acquiesced in the violation of the express policy.”  There was no evidence that Diamond was aware that other employees were not following the procedures.  Further, there was evidence that the integrity policy was enforced, and in fact led to at least one of the integrity-policy meetings. 

Relator also relies on Tuckerman Optical for the proposition that, when an employer’s policy is vague or poorly communicated, the employee’s mistaken understanding of these policies is not considered misconduct.  In Tuckerman Optical, this court affirmed the commissioner’s decision that the employee was not terminated for employment misconduct.  There, a store manager was fired for allowing her employees to list the entire time they were scheduled to perform an inventory as time worked on their time cards, even if they left early after finishing the inventory.  407 N.W.2d at 492.  The manager testified that her supervisor authorized the practice, and her supervisor and other employees testified similarly.  Id. at 492-93.  The court noted that Tuckerman Optical had produced contradictory evidence, but emphasized the burden of proof and recognized that the reviewing court must only look for evidence in the record to support the commissioner’s representative’s decision.  Id. at 494. 

Here, the evidence supports the commissioner’s representative’s finding that relator failed to comply with his employer’s batch-verification process.  Unlike Tuckerman Optical, where there is evidence that a supervisor authorized the actions of the manager, there is no evidence that Diamond gave relator’s supervisor the authorization to disregard the written policy.  The commissioner’s representative properly concluded relator was discharged for misconduct and is disqualified from receiving benefits.




*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.