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Yang v. Sandvik, Inc.

Court of Appeals of Minnesota

December 23, 2013

Kevin Yang, Relator (A13-0182),
Sandvik, Inc., Respondent, Nhiaker Yang, Relator (A13-0183), True Yang, Relator (A13-0212), Nhia Thong Moua, Relator (A13-0214), Ge Her, Relator (A13-0217), Kall Khue, Relator (A13-0218), Ker Lor, Relator (A13-0219), Pao Thao, Relator (A13-0220), Yer Moua, Relator (A13-0221), Ma C. Xiong, Relator (A13-0223), Erik Xiong, Relator (A13-0225), Shoua Xiong, Relator (A13-0226), Bee Yang, Relator (A13-0228), Ger Yang, Relator (A13-0230), Xhonching Yang, Relator (A13-0231),
Department of Employment and Economic Development, Respondent.


Department of Employment and Economic Development File No. 30135447-3

Der Yang, Village Lawyer, LLC, St. Paul, Minnesota (for relators)

Matthew P. Kostolnik, Moss & Barnett, Minneapolis, Minnesota; and Thomas F. Hurka (pro hac vice), Morgan, Lewis & Bockius, LLP, Chicago, Illinois (for respondent employer)

Lee B. Nelson, Christine Hinrichs, Department of Employment and Economic Development, St. Paul, Minnesota (for respondent department)

Considered and decided by Stoneburner, Presiding Judge; Hudson, Judge; and Hooten, Judge.


Relators-employees challenge the denial of their claims for unemployment benefits, arguing that the unemployment law judge (ULJ) erred by determining that they quit their jobs without a good reason caused by respondent-employer and that they were not afforded a fair hearing. Because substantial evidence supports the ULJ's determination and the ULJ conducted a fair hearing, we affirm.


Relators are 15 Hmong men who worked the second shift at respondent Sandvik, Inc.'s precision-grind shop. Following their separation from employment, respondent Department of Employment and Economic Development (DEED) determined that relators were ineligible for unemployment benefits because they were discharged on August 13, 2012, for misconduct. Relators appealed this determination, and the ULJ conducted a consolidated, in-person hearing. All relators were represented by one attorney. Only relators Shoua Xiong, Pao Thao, Nhia Moua, Bee Yang, and Ger Yang testified for relators. Human resources manager Cheryl O'Rourke, production supervisor Robert Palm, and plant manager Richard Russo testified on behalf of Sandvik.

A. Events Leading up to Relators' Separation from Employment

The record establishes that in 2008, production manager Jeff Trout held a meeting with second-shift employees. According to Xiong, when some relators asked Trout about the attendance policy, Trout got upset and said, "[W]ell if you don't like it, then go back to where you came from." Xiong testified that nobody complained about this incident afterwards because O'Rourke attended the meeting and observed the incident and because relators feared reprisal. O'Rourke admitted that she attended the meeting, but she testified that she did not recall Trout making this statement and would have fired him if he had.

In April 2012, Moua sent a letter to O'Rourke, complaining about his performance review. At O'Rourke's request, Russo met with Moua to discuss the review. Russo indicated to Moua that he believed that the review, which was "above average, " was appropriate. He thought that Moua "seemed satisfied" after the explanation, and he did not recall Moua raising any other concerns during this meeting. Moua testified that during this meeting, he complained to Russo that he was told by his supervisor that all employees were given the same score but that he knew from talking to his Hmong co-workers that some of them received higher scores.

Also in April 2012, O'Rourke held a meeting with the second-shift employees to discuss an employment survey that was about to be distributed. Relators expressed concerns about pay disparity between the first and second shifts. O'Rourke testified that she investigated these concerns, and she concluded that second-shift employees received a 50 cent per hour premium on top of their base rate and that any other pay differences were attributed to employee seniority.

O'Rourke testified that Xiong complained to her in July 2012 that Sandvik should have hired him instead of Robert Zismer for a new shift-supervisor position. She testified that the position was opened to internal candidates and that she explained to Xiong that Zismer was hired because of his 20 years of supervisory experience. Russo testified that Xiong approached him and asked why the company did not internally hire someone from the shop. He told Xiong that Zismer was selected because the company "needed someone with really strong experience in the sense of managing people and understanding the process." Russo testified that race or national origin did not influence the hiring decision.

B. Relators Leaving Work Mid-Shift

In late July 2012, Moua was reassigned from operating two automatic machines to operating three automatic machines. Moua testified that operating three machines caused him shoulder and back pains, that he reported this to team lead Thao, and that Thao reported it to his supervisors and Russo. On August 6, 2012, Moua was again reassigned. Russo testified that the reassignment resulted from machines being moved to change the flow of materials and to improve the operating process. Moua's work hours or pay did not change, but he moved to a different part of the factory and operated one manual machine. According to Russo, Moua's reassignment was not motivated by race or national origin. Moua admitted that the reassignment was made, in part, to alleviate his pain from having to operate multiple machines. Moua did not complain to management about this reassignment.

Xiong testified that on the day that Moua was reassigned, he observed Zismer "forcing or bullying Mr. Nhia Moua like a child . . . by the new machine" but did not hear their conversation. Xiong explained: "[Zismer] did not use his hands or push [Moua], no physical contact, but just the expression on [Zismer]'s face, I can tell that he did not like the individual."

That same day, and at Thao's request, Russo held a meeting with second-shift employees to discuss Moua's reassignment. Russo thought that the main concerns were that Moua felt disrespected by the change and the lack of discussion with him beforehand. Thao testified that he brought up issues of racial discrimination at this meeting. Xiong testified that other relators brought up the 2008 incident involving Trout so that Russo could investigate it. Russo testified that relators did not raise concerns about racial discrimination at this meeting. Russo believed that the issue was instead about the treatment of second-shift employees compared to first-shift employees. Russo testified that relators "brought up more operational issues" and that "there [were] many questions on why the changes, why [Moua] was being moved, why Bob Zismer was hired, [and] the role of Bob Zismer." He testified that he told the second-shift employees to "give [him] a chance to look into this, let [him] talk to [his] managers and supervisors, and . . . that [he] would have a meeting later that week."

Two days later, during the second shift, Russo called a meeting with the second-shift employees. Russo testified that when he began a presentation outlining the company's vision and the operational reasons for all of the changes, relators focused their concern on Moua's reassignment and the concerns they had raised on August 6. At some point during this meeting, Russo, Moua, and Xiong left to talk privately about the reassignment. Russo testified that he apologized to Moua for any disrespect he may have felt and explained to Moua that the reassignment was meant to be good for everyone. Russo further testified that he offered to move Moua back to his old position and that Moua accepted this offer. Moua claimed that Russo never made this offer and only told him that he should "just start working and don't mention anything else." Moua testified that he brought up the issue of discrimination and asked Russo to "call in everyone to talk and to compromise." According to Xiong, Moua said to Russo that management has discriminated against him and asked Russo to investigate and "fix his concerns." Xiong testified that Russo and Moua "never got to a conclusion" as to Moua's work assignment. Russo denied that he told Moua to just do what he said.

During Russo's separate meeting with Moua and Xiong, the other second-shift employees continued their discussion. Tensions escalated. Thao told Trout that Moua should be recognized for his good work and that they should not be discriminated against. He claimed that Trout yelled and said that Moua was unable to perform his job. Thao admitted that he was the first one to leave the room and that other relators followed him. Thao took his tool box when he left.

Russo described the situation as "a very chaotic scene." According to him, relators were "all at the front of the shop . . . [and] gathering up their stuff." Eleven relators handed Russo their pass cards that allowed them access to the building, and at least two relators left with their tool boxes. All relators left work mid-shift. Xiong testified that as relators were leaving, Thao asked Russo to have O'Rourke set up a meeting with them so that they could discuss their concerns. Thao testified that when he requested this meeting, Russo told him that O'Rourke was out of the country and did not say when she would return. Russo denied that relators asked him to set up a meeting with O'Rourke. Russo testified that he asked Thao to discuss the situation, but Thao refused. He further testified that he asked relators to stay and told them that O'Rourke would be in on Monday.

Russo testified that three second-shift employees stayed behind, including Kodjo Edoh, who is African-American. Thao disputed Russo's testimony that Edoh stayed at work. He testified that Edoh walked out with relators. Xiong testified that ...

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