This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-99-1202

 

Colette M. Welch,

Relator,

 

vs.

 

Single Source Transportation,

Respondent,

 

Commissioner of Economic Security,

Respondent.

 

 

Filed March 21, 2000

Affirmed

Huspeni, Judge*

 

Department of Economic Security

File No. 2308UC99

 

 

Colette M. Welch, P.O. Box 248, Lac du Flambeau, WI 54538 (pro se relator)

 

Single Source Transportation, P.O. Box 1160, Columbus, OH 43216-1160 (respondent)

 

Kent E. Todd, 390 North Robert Street, St. Paul, MN 55101 (for respondent Commissioner of Economic Security)

 

 

††††††††††† Considered and decided by Toussaint, Chief Judge, Kalitowski, Judge, and Huspeni, Judge.

U N P U B L I S H E DO P I N I O N

 

HUSPENI, Judge

††††††††††† Relator Colette M. Welch challenges the commissionerís representativeís decision that relator quit her employment without a good reason caused by the employer and, therefore, was not qualified to receive reemployment insurance benefits.Because the evidence sustains the determination of the commissionerís representative, we affirm.

FACTS

††††††††††† Relator Colette M. Welch worked at Single Source Transportation, a trucking company, from August 1994 to January 16, 1999.She worked as a team driver with her husband until August 1997, when he was placed on medical leave because he was undergoing a liver transplant.From August 9, 1997, until some time in November 1998, relator worked as a solo driver for different terminals within the company.In November 1998, relatorís husband returned from medical leave and they once again began driving as a team.But during a route to Los Angeles in January 1999, relatorís husband once again became ill.Relator claims that on January 16, 1999, she was involuntarily terminated from her employment.

Challenging relatorís claim that she was involuntarily terminated from employment, relatorís terminal manager, Jolleen Volbert, testified that relator called her during the route to Los Angeles and stated that she had to take her husband to the Mayo Clinic because he had become ill again.According to Volbert, relator told her, ďI have to give this up.ĒVolbert further testified that relator said she had to stay home to take care of her husband and was making a ďlife style change.Ē

Relator testified that she only said that her husband could no longer drive and she was taking him to the Mayo Clinic; she denied saying, ďI have to give this upĒ or indicating that she was quitting.

Both relator and Volbert agree that during the disputed telephone conversation, Volbert told relator that due to changes in the terminal, solo driving was no longer allowed.They also agree that Volbert told relator that she might look into driving with Kim Bruin, who was seeking a partner to drive part-time.Relator claims that she told Volbert that she had already talked to Kim Bruin about driving with her, but due to the fact that Bruin was not willing to drive full-time, the two could not team up.Finally, both relator and Volbert agree that relator never inquired about solo-driving opportunities, either in St. Cloud or other terminals.Volbert admits that she suggested driving with Bruin, but denies ever offering relator any positions.

On January 16, 1999, relator ceased to be an employee of Single Source Transportation.Volbert testified that a week or two after the telephone conversation, relator called her and asked whether she would qualify for reemployment insurance.Relator filed for reemployment insurance benefits, and the Department of Economic Security found that she had been involuntarily terminated from her employment and was eligible for the benefits.The employer appealed, and after a hearing where both relator and Volbert testified, via telephone, the reemployment insurance judge reversed the prior decision, finding that relator voluntarily quit and was unable to show good cause by the employer.This decision was affirmed by the commissionerís representative.

D E C I S I O N

††††††††††† Whether an employee has been terminated or quit voluntarily is primarily a question of fact.Midland Elec., Inc. v. Johnson, 372 N.W.2d 810, 812 (Minn. App. 1985).

This court employs a narrow standard of review on appeals from the Commissioner of Economic Security and will not disturb the findings of the Commissionerís representative if the record contains evidence that reasonably tends to sustain them.

 

Whitehead v. Moonlight Nursing Care, Inc., 529 N.W2d 350, 352 (Minn. App. 1995) (citing White v. Metropolitan Med. Ctr., 332 N.W.2d 25, 26 (Minn. 1983)).The commissionerís determination of whether an employee was properly disqualified from receiving reemployment insurance benefits is a question of law, which is not binding on this court.Soussi v. Blue & White Serv. Corp., 498 N.W.2d 316, 318 (Minn. App. 1993).

The question in this case is whether appellant quit or was discharged.Minn. Stat. ß 268.095, subd. 2a (Supp. 1999), provides that ďa quit from employment occurs when the decision to end the employment was, at the time the employment ended, the employeeís.Ē

An applicant who quits employment shall be disqualified from all benefits except when:

(1) the applicant quit the employment because of a good reason caused by the employer.

 

Minn. Stat. ß 268.095, subd. 1(1) (Supp. 1999).Minn. Stat. ß 268.095, subd. 3 (Supp. 1999), provides in part:

(a)A good reason caused by the employer for quitting is a reason:

(1)that is directly related to the employment and for which the employer is responsible; and

(2)that is significant and would compel an average, reasonable worker to quit, and became unemployed rather than remaining in the employment.

 

Once the employer has established that the employee voluntarily quit, the burden shifts to the employee to prove that she left employment with a good reason caused by the employer.Marz v. Department of Employment Servs., 256 N.W.2d 287, 290 (Minn. 1977).

The commissionerís representative concluded that relator voluntarily quit.There was conflicting testimony given during the hearing in this matter.The commissionerís representative chose to accept Volbertís version of her conversation with relator.Where credibility is at issue, ďthis court must defer to the Commissionerís ability to weigh the evidence.ĒWhitehead, 529 N.W.2d at 352.The district courtís credibility determination will not be reversed unless it is clearly erroneous.Varco-Pruden Bldgs. v. Becker & Sons Constr., Inc., 361 N.W.2d 457, 459 (Minn. App. 1985) (citation omitted).The representativeís findings are not clearly erroneous.Because the commissionerís representative is given broad discretion regarding questions of fact, we conclude that there was no error in concluding that appellant quit.

The burden then shifted to relator to show she quit due to a good reason caused by her employer.The commissionerís representative concluded that relator did not meet her burden.We agree.Relator claims that after she told Volbert that she could no longer work as a team driver because of her husbandís illness, she was never apprised of other driving positions.While it is undisputed that Volbert did not offer relator a solo-driving position, that is not an indication of good cause attributable to the employer.Because Volbertís terminal was no longer doing solo driving, a fact that was made clear to relator, there was no position for relator within that terminal.But when relatorís husband first became ill she worked as a solo-driver for other terminals within the company and, therefore, knew that it was an option for her to explore.Relatorís failure to ask about solo-driving positions in other terminals, in conjunction with her statements, indicated to Volbert that she was no longer interested in continuing her employment as a truck driver.The commissionerís representativeís determination that relator did not quit due to a good reason caused by her employer is supported by the record.

Relator also continues to argue that her telephone conversation with Volbert resulted in relatorís discharge.A claimant who is discharged shall not be disqualified from benefits, Minn. Stat. ß 268.095, subd. 4 (Supp. 1999).The definition of discharge is:

††††††††††† A discharge from employment occurs when any words or actions by an employer would lead a reasonable employee to believe that the employer will no longer allow the employee to work for the employer in any capacity.

 

Minn. Stat. ß 268.095, subd. 5 (Supp. 1999).When there is a dispute concerning whether the employee quit or the employer discharged him, the employer has the burden of proof.Brown v. Port of Sunnyside Club, Inc., 304 N.W.2d 877, 879 (Minn. 1981).

††††††††††† The commissionerís representative rejected relatorís argument that she was discharged, indicating that

nothing about [relatorís] conversation with the employer justified a conclusion * * * that the employer had no subsequent work for her.* * *The evidence shows that continued employment was available as a solo driver and that [relator] had worked in that capacity for the employer in the past.

 

There is ample support in the record for the commissionerís decision on this issue.

††††††††††† Finally, relator claims that the reemployment insurance judge erred in excluding two exhibits during the hearing.These documents were excluded after Volbert stated that they did not accurately state her actions.Relator did not object to the evidentiary ruling at the hearing.Therefore, she has waived her right to challenge the exclusion on appeal. Dent v. State, 441 N.W.2d 497, 498 (Minn. 1989).

††††††††††† Affirmed.



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