This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).







Eric N. King,





Dolphin Clerical Group,



Commissioner of Economic Security,



Filed February 13, 2001


Holtan, Judge*


Department of Economic Security

File No. 321300



Betty A. Berger, Southern Minnesota Regional Legal Services, 300 Minnesota Building, 46 East Fourth Street, St. Paul, MN 55101 (for relator)


Dolphin Clerical Group, TCG Incorporated, 258 Hennepin Avenue, Minneapolis, MN 55401 (respondent)


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


            Considered and decided by Toussaint, Chief Judge, Crippen, Judge, and Holtan, Judge.

U N P U B L I S H E D   O P I N I O N


            Relator seeks review of the decision by the commissioner’s representative that he quit his employment, rendering him disqualified for reemployment compensation benefits.  Neither the employer nor the commissioner’s representative filed briefs, and this matter was decided pursuant to Minn. R. Civ. App. P. 142.03.  We reverse.


            Relator had worked for Dolphin Temporary Agency at various assignments since October 23, 1998.  On March 1, 2000, he started a temporary clerical position with Acorn Mini Storage, and his usual hours were from 9:00 a.m. to 6:00 p.m.  He testified that on March 3, 2000, he received a call from Dolphin at about 3:30 p.m., telling him he was discharged.  Dolphin’s telephone log[1] of this conversation stated

                        [Confirmed] that today is his last day at Acorn and that he needs to get his timecard signed today and to leave his key behind.  Told him to call us when he get[s] home this evening.


In contrast, a Dolphin staff member testified that relator had informed Dolphin on March 2 that he did not feel that the Acorn job was appropriate for him.  The staff member testified that he “asked him to remain on the assignment and give it a chance,” but on March 3, relator informed Acorn that he did not wish to work there.

            Relator also testified that because he had worked through his lunch hour, he sought and received permission to continue to work straight through the day, so that he could complete his eight hours and leave at 5:00 p.m.  A little later, at almost 6:00 p.m., Dolphin staff recorded the following conversation with relator:  “Told him I had no further information on Acorn--DNR [do not return], that he needs to follow up next week.”  Dolphin acknowledged that relator had requested work on March 7, but that he was not reassigned.  Dolphin sent relator a letter on March 17, 2000, along with personnel information he had requested, stating:  “The reason for your termination was due to three ‘Do Not Returns.’”

            Meanwhile, on March 10, 2000, relator applied for reemployment compensation benefits.  The department determined that he had been discharged for unsatisfactory performance, and that he qualified for benefits.  Dolphin appealed, contending relator quit, and the reemployment judge reversed.

            On further review, the commissioner’s representative determined that relator had quit his employment because he had informed Acorn that he was unable to perform the job and that he had left before the end of his scheduled shift.  Relator’s claim that Dolphin had discharged him was rejected.  This certiorari appeal followed.


            “Whether an employee has been discharged or voluntarily quit is a question of fact.”  Midland Elec., Inc. v. Johnson, 372 N.W.2d 810, 812 (Minn. App. 1985) (citations omitted).  This court’s scope of review of findings in economic security cases is limited:

                        The narrow standard of review requires that findings 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) (citation omitted). The determination of whether a claimant is disqualified from receiving benefits is a question of law.  Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).[2]  The policy behind the reemployment benefits statute is to provide benefits to “individuals unemployed through no fault of their own.”  Minn. Stat. § 268.03, subd. 1 (Supp. 1999).

            An employee who quits a job without good reason caused by the employer is disqualified from receiving reemployment compensation benefits.  Minn. Stat. § 268.095, subd. 1 (Supp. 1999).  A temporary agency may be an employer for purposes of the economic security act.  Henry v. Dolphin Temp. Help Servs., 386 N.W.2d 277, 279 n.2 (Minn. App. 1986).  “A quit from employment occurs when the decision to end the employment was, at the time the employment ended, the employee’s.”  Minn. Stat. § 268.095, subd. 2(a) (Supp. 1999).

            An employee who is discharged for unsatisfactory performance is qualified to receive reemployment benefits.  See Minn. Stat. § 268.095, subd. 6(2)(b) (Supp. 1999) (noting that simple unsatisfactory conduct is not disqualifying misconduct).  A discharge 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. § 268.095, subd. 5(a) (Supp. 1999).

            In addressing whether this was a quit or discharge, we first note that the commissioner’s representative credited the testimony of Dolphin staff that relator had told the Acorn supervisor he was unable to perform the work assigned, and left before the assignment was completed.  This determination is supported by the record.  In some cases, this scenario could be considered a quit.  See Mbong v. New Horizons Nursing, 608 N.W.2d 890, 895 n.2 (Minn. App. 2000) (noting that if worker at temporary agency fails to complete assignment without good cause, it may constitute a quit).  But under the undisputed facts here, the inquiry does not end yet.

            Dolphin acknowledged that on relator’s last day of work at Acorn, Dolphin staff told him he needed to contact Dolphin the following week.  Although he did so, Dolphin did not reassign him.  Further, Dolphin advised relator several weeks later by letter that “[t]he reason for your termination was due to three ‘Do Not Returns.’”  Thus, neither Dolphin nor relator believed he “quit” Dolphin at the time he left his temporary assignment at Acorn before it was completed.   The undisputed actions of Dolphin in later declining to assign more work to relator and in advising him he was terminated demonstrate that Dolphin discharged relator.  See Minn. Stat. § 268.095, subd. 5(a) (providing discharge occurs when reasonable employee is led to believe employer will no longer allow employee to work in any capacity).



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


[1]  Dolphin kept a telephone log of conversations with its employees.


[2] Because this appeal is resolved as a matter of law, we do not find it necessary to address the effect of the language of the statute providing that the employee’s “entitlement to benefits shall be determined * * * without regard to any common law burden of proof.”  Minn. Stat. § 268.069, subd. 2 (Supp. 1999).