This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-01-297

 

 

David Anderson,

Relator,

 

vs.

 

K Mart Corporation,

Respondent,

 

Commissioner of Economic Security,

Respondent.

 

 

Filed August 28, 2001

Affirmed

Lansing, Judge

 

Minnesota Department of Economic Security

File No. 869100

 

David Anderson, 14540 Shannon Parkway, Apt. 403, Rosemount, MN 55068-7140 (pro se relator)

 

K Mart Corporation, 3100 West Big Beaver Road, Troy, MI 48084-3163 (respondent)

 

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

 

Considered  and  decided  by  Lansing, Presiding Judge,  Amundson, Judge, and

 

Lindberg, Judge.*

                                               

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

 

U N P U B L I S H E D   O P I N I O N

 

LANSING, Judge

David Anderson appeals the commissioner’s determination that he is disqualified from receiving unemployment benefits.  Because the record supports the factual determination that Anderson gave notice of his intention to quit, the employer’s termination of his employment one day before his intended date of quitting did not transform the voluntary quit into an involuntary discharge, and we affirm.           

F A C T S

            K Mart employed David Anderson as a full-time team manager.  In October 1999, Anderson began training on a part-time basis with a financial-services company to generate additional personal income.  K Mart management became concerned that Anderson was conducting financial-services business on K Mart’s time. 

            On September 14, 2000, representatives from the K Mart district office met with Anderson to discuss whether his financial-services work was interfering with his employment at K Mart.  Anderson was angry and upset about the meeting.  The next day, Anderson approached the store manager to inform her that he was taking the rest of the day off as a personal day.  Anderson then told her that he would open the store on September 17, but that September 17 would be his last day of work for K Mart.

            After Anderson left the store, the store manager told the district office that Anderson had informed her that his last day of work was September 17.  The district office told her to call Anderson at home and tell him that his employment was terminated because of his work with the financial-services company.  On September 16, the manager told Anderson in a telephone conversation that K Mart had terminated his employment.  

            Anderson applied for unemployment benefits.  An unemployment law judge determined that Anderson was disqualified because he quit effective September 17 without good cause attributable to K Mart.  The commissioner’s representative affirmed the decision of the unemployment law judge.  By writ of certiorari, Anderson appeals from the decision of the commissioner’s representative, claiming that the evidence does not support the conclusion that he intended to quit effective September 17, 2000. 

D E C I S I O N

Generally, an applicant who quits employment without good reason caused by the  employer will  be disqualified  from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 1 (2000).  A quit occurs when a “decision to end the employment was, at the time the employment ended, the employee’s.”  Id. subd. 2(a) (2000).  A discharge occurs “when any words or actions by an employee would lead a reasonable employee to believe that the employer will no longer allow the employee to work for the employer in any capacity.”  Id. subd. 5(a) (2000).  Whether an employee voluntarily quit or was discharged is a question of fact.  Midland Elec., Inc. v. Johnson, 372 N.W.2d 810, 812 (Minn. App. 1985).

The commissioner’s representative’s findings of fact are reviewed in the light most favorable to the decision and must be sustained if there is evidence reasonably tending to support them.  Id.  Appellate courts defer to fact findings made by the commissioner’s representative.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  The ultimate determination of whether an employee is disqualified from receiving unemployment benefits is a question of law, which this court reviews de novo.  Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).

            The commissioner’s representative found that Anderson quit effective September 17.  Anderson argues that he did not intend to quit and did not give formal notice that he was quitting, and thus the commissioner’s finding cannot be sustained.  But we are not free to reweigh facts and make credibility determinations; our review focuses on whether the evidence reasonably supports the commissioner’s findings.

The evidence reasonably supports the finding that Anderson quit effective September 17.  The record confirms that Anderson approached the store manager on September 15 and informed her that his last day of work for K Mart would be September 17.  In his testimony, Anderson acknowledged that he might have insinuated to the store manager that September 17 would be his last day.  Although it is uncontested that K Mart discharged Anderson one day before his intended quit date, an employer’s unwillingness to allow an employee to work after the employee has given notice of his intention to quit does not change the quit to a discharge.   See  Minn. Stat. § 268.095, subd. 5(b) (2000) (employer’s discharge of employee during notice period does not change quit to discharge if discharge within 30 days of noticed date of quitting).

Viewing the testimony in the light most favorable to the findings, the record supports the finding of the commissioner’s representative that Anderson gave notice that he was quitting effective September 17.  Although Anderson’s testimony in some respects contradicts this finding, we must defer to the credibility determinations of the commissioner’s representative.  The evidence is sufficient to support the commissioner’s determination that Anderson quit employment effective September 17.

            Affirmed.