This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
Anthony A. Powell,
Independent School District #2859,
Commissioner of Economic Security,
Filed May 6, 2003
Minnesota Department of Economic Security
File No. 153802
Anthony A. Powell, 4862 – 86th Circle, Glencoe, Minnesota 55336 (pro se relator)
Stephen M. Knutson, Michelle D. Kenney, Knutson, Flynn & Deans, P.A., 1155 Centre Point Drive, Suite 10, Mendota Heights, Minnesota 55120 (for respondent employer)
M. Kate Chaffee, Lee B. Nelson, Department of Economic Security, 390 North Robert Street, St. Paul, Minnesota 55101 (for respondent commissioner)
Considered and decided by Minge, Presiding Judge, Kalitowski, Judge, and Hudson, Judge.
U N P U B L I S H E D O P I N I O N
Relator challenges the commissioner’s representative’s decision that he was disqualified from receiving unemployment benefits because he voluntarily quit his employment to avoid a possible termination. Relator contends he quit because the employment was unsuitable and that under Minn. Stat. § 268.095, subd. 1(3), (4) (2002), he qualifies for unemployment benefits. Because we conclude that Minn. Stat. § 268.095, subd. 1(3), (4) does not apply to relator’s claim, and because the record reasonably supports the decision of the commissioner’s representative, we affirm.
On August 27, 2001, Anthony Powell (relator) began employment as a public school teacher with Independent School District #2859, Glencoe-Silver Lake Public Schools (ISD #2859). Specifically, relator was employed as an alternative learning program instructor at an annual salary of approximately $28,000. Relator quit a similar teaching position in Hutchinson to take the position with ISD #2859. Relator’s salary in Hutchinson was approximately $21,500 per year.
During the course of relator’s employment, ISD #2859 became dissatisfied with relator’s job performance. In one incident, during a self-defense class instructed by relator, ISD #2859 believed that instead of teaching basic self-defense skills, relator was instructing students on how to break bones and injure people. Relator was also heard using the phrase “the family jewels” which ISD #2859 felt was inappropriate language to use in front of students.
On September 24, 2001, 29 days after the employment began, relator was called into a meeting with the school district’s superintendent, the principal, and two union representatives. Relator was informed of performance issues in four areas: lack of student control, inappropriate teaching techniques, inappropriate comments to students during a lesson, and lack of preparation. Relator was also told that, as a result of these performance problems, a recommendation would be made to the school board that his employment be terminated. Relator was given an opportunity to respond to the performance issues, but he declined to do so. Relator was advised that he had the option of resigning rather than proceeding through a hearing and facing the possibility of discharge.
Before making a decision, relator met with union representatives who advised him that only the school board could terminate him during the school year, that relator had the right to request a hearing before the school board, and that relator could not be terminated until such a hearing had occurred. After this meeting, relator asked the school district superintendent if the school district would give him a half-year’s pay with benefits if he resigned immediately. The superintendent responded that she would have to discuss the matter with the chair of the school board.
A settlement agreement was eventually reached between the parties. Relator submitted a letter of resignation, dated November 2, 2001, in which he stated he quit for “personal reasons.” As part of the negotiated agreement, the resignation became effective November 3, 2001, so that it would appear relator had at least one quarter of teaching experience. Relator also received a severance payment of $4,000. The school board officially accepted relator’s resignation on November 8, 2001. Relator did not attend the school board meeting. At no time during relator’s brief employment did he complain to ISD #2859 about the adverse job conditions that he now claims influenced his decision to quit.
On November 4, 2001, relator filed a claim for unemployment benefits. On December 12, 2001, a department adjustor found that relator was “not disqualified” from receiving benefits. ISD #2859 appealed that determination and the unemployment law judge reversed the department’s determination, concluding that relator did not quit because of a good reason caused by the employer, and that no exception to disqualification applied. Relator then appealed the unemployment law judge’s determination. The commissioner’s representative concluded that relator voluntarily quit employment to avoid termination, and that relator was disqualified from receiving unemployment benefits. This appeal followed.
D E C I S I O N
Relator argues that the commissioner’s representative erroneously concluded that he did not qualify for unemployment benefits under Minn. Stat. § 268.095, subd. 1 (2002) because he voluntarily quit employment. Relator contends that he quit employment because it was unsuitable, and that under Minn. Stat. § 268.095, subd. 1(3), (4), he qualifies for unemployment benefits. We disagree.
On appeal, this court must examine the decision of the commissioner’s representative, rather than that of the unemployment law judge. Kalberg v. Park & Recreation Bd., 563 N.W.2d 275, 276 (Minn. App. 1997). Decisions of the commissioner’s representative are “accorded particular deference.” Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995). The findings of the commissioner’s representative must 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). The ultimate determination of whether an employee is disqualified from receipt of unemployment benefits is a question of law that this court reviews de novo. Ress v. Abbott N.W. Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989). Whether an employee has quit employment for a good reason caused by the employer is a question of law reviewed de novo. Edward v. Sentinel Mgmt. Co., 611 N.W.2d 366, 367-68 (Minn. App. 2000), review denied (Minn. Aug. 15, 2000). The question of job suitability, in deciding if an individual had good cause to quit, is a legal question. Valenty v. Med. Concepts Dev., Inc., 491 N.W.2d 679, 682 (Minn. App. 1992) (Valenty I), aff’d in part, modified in part, 503 N.W.2d 131, 134 (Minn. 1993) (Valenty II).
Generally, an applicant who voluntarily quits employment is disqualified from receiving unemployment benefits. Minn. Stat. § 268.095, subd. 1. An exception applies to an applicant who quit the employment within 30 calendar days of beginning the employment because the employment was unsuitable. Minn. Stat. § 268.095, subd. 1(3). But this exception generally applies in the context of an applicant who is currently receiving unemployment benefits and takes a job outside his or her usual line of work, but quits because the employment is not suitable. See Valenty II, 503 N.W.2d at 134 (holding that a person receiving unemployment benefits who accepts an unsuitable job will not be disqualified from receiving benefits, if worker quits within a reasonable time).
Here, relator’s employment with ISD #2859 only lasted 29 days, but relator’s teaching position with ISD #2859 was not a change in vocation. In fact, relator quit a similar teaching position in Hutchinson to accept the teaching position with ISD #2859. Additionally, relator was not unemployed and receiving unemployment benefits prior to beginning the new teaching position with ISD #2859. We conclude that Minn. Stat. § 268.095, subd. 1(3), does not apply to relator’s claim.
Even if we were to conclude that Minn. Stat. § 268.095, subd. 1(3), is applicable, relator’s teaching position with employer was suitable employment. “Suitable employment” means:
[e]mployment in the applicant’s labor market area that is reasonably related to the applicant’s qualifications. In determining whether any employment is suitable for an applicant, the degree of risk involved to the health and safety, physical fitness, prior training, experience, length of unemployment, prospects for securing employment in the applicant’s customary occupation, and the distance of the employment from the applicant’s residence shall be considered.
Minn. Stat. § 268.035, subd. 23a (2002). Employment is considered unsuitable if the wages, hours, or other conditions of employment are substantially less favorable than those prevailing for similar employment in the labor market area. Minn. Stat. § 268.035, subd. 23a(g)(2) (2002).
Relator argues that his employment was unsuitable because he was expected to work uncompensated during his lunch break and study hall periods, and that he was expected to work extended, uncompensated hours during the work day. Relator also contends that the employment was unsuitable because he was not provided with staff development mechanisms, or adequate materials and supplies, and because management itself was inadequate. While relator identifies conditions of the employment that he alleges were unsuitable, he has failed to establish how these conditions made the employment substantially less favorable than similar teaching positions in the same labor market area. Absent in the record is a comparison of hours, salary, and working conditions for this teaching position as compared to similar teaching positions in the area.
Wages is the only statutory factor we are able to consider from the record provided. See Henrickson v. Northfield Cleaners, 295 N.W.2d 384, 387 n.3 (Minn. 1980) (finding wages a factor to be considered in determining whether a job is suitable). Although relator argues that his employment with ISD #2859 was unsuitable, relator’s salary increased when he accepted the teaching position with ISD #2859. Relator’s subjective belief that the employment is unsuitable is not determinative. Kuether v. Personnel Pool of Minnesota, 394 N.W.2d 259, 260 (Minn. App. 1986). “The determination must be based on the statutory criteria.” Id. at 261. On the facts presented here, we are unable to find support for relator’s argument that the conditions of his employment were substantially less favorable than similar teaching positions in the area.
Relator also argues that he is eligible for unemployment benefits under Minn. Stat. § 268.095, subd. 1(4). We disagree. Relator alleges that he was enrolled in reemployment training before he was forced to withdraw to allocate time to defend his claim for unemployment benefits. An applicant who quits unsuitable employment and quits to enter reemployment assistance training is not disqualified from receiving unemployment benefits. Minn. Stat. § 268.095, subd. 1(4). But we find no support in the record that relator was enrolled in reemployment assistance training, that he quit unsuitable employment so he could attend such training, or that the retraining met the statutory definition of reemployment assistance training under Minn. Stat. § 268.035, subd. 21a (2002). Therefore, we conclude that Minn. Stat § 268.095, subd. 1(4), does not apply to relator’s claim.
Finally, the case law on which relator relies addresses the issue of whether the employee had “good reason to quit attributable to the employer,” not whether the employment was suitable. On the record before us, relator’s teaching position with ISD #2859 was suitable employment. The new position was reasonably related to relator’s qualifications as a teacher, and was essentially identical to relator’s prior teaching position in Hutchison. Additionally, relator received an increase in salary, and the new teaching position was in relator’s labor market area.
The commissioner’s representative found that relator voluntarily quit employment in anticipation of a possible termination in order to avoid blemishing his record. Relator does not dispute that he voluntarily quit his employment. Rather, relator argued at the hearing that he had good reason to quit attributable to the employer because ISD #2859 breached the teachers’ contract, provided poor leadership, and engaged in a pattern of harassment. But the record supports the commissioner representative’s finding that relator quit employment to avoid a possible termination. First, in a telephone conversation with a Department of Economic Security employee on November 27, 2001, relator stated, “I quit rather than have a discharge appear on my record.” Second, in his application for unemployment benefits relator attached a letter dated November 13, 2001, in which he stated, “The final incident that led me to quit was being threatened with termination of my employment.” Third, as part of a negotiated severance package, relator received $4,000 in exchange for his immediate resignation, thereby negating the necessity of school board proceedings to terminate him. Minnesota case law establishes that quitting to avoid a possible disciplinary termination disqualifies an applicant from receiving unemployment benefits. See, e.g., Seacrist v. City of Cottage Grove, 344 N.W.2d 889, 892 (Minn. App. 1984) (police sergeant who resigned to avoid disciplinary action which would have harmed pending application for police chief was disqualified from receipt of unemployment benefits); Ramirez v. Metro Waste Control Comm’n, 340 N.W.2d 355, 357-58 (Minn. App. 1983) (worker who sought to preserve work record by resignation after employer threatened to terminate employment for excessive tardiness was disqualified from receipt of unemployment benefits). Furthermore, notification of discharge is not considered a good reason caused by the employer for quitting. Minn. Stat. § 268.095, subd. 3(2)(d) (2002). The record supports the commissioner’s representative’s finding that relator voluntarily quit to avoid termination. Therefore, we will not disturb this finding.
Even if relator did quit for the reasons he argued at the hearing, there is no evidence in the record that relator ever complained to ISD #2859 about his working conditions, either personally or via the grievance procedure provided in the teachers’ collective bargaining agreement. An applicant subjected to “adverse working conditions” by the employer must first complain to the employer and give the employer a “reasonable opportunity” to correct the adverse working situation before the applicant can be considered to have a “good reason caused by the employer for quitting.” Minn. Stat. § 268.095, subd. 3(2)(b); see also Larson v. Dep’t of Econ. Sec., 281 N.W.2d 667, 669 (Minn. 1979) (janitor disqualified from receipt of unemployment benefits where he failed to report continuing mistreatment by coworkers, so employer had no chance to correct situation and could not be said to have given janitor “good cause” to quit); Burtman v. Dealers Disc. Supply, 347 N.W.2d 292, 294 (Minn. App. 1984) (employee disqualified from receipt of unemployment benefits where he quit after working only three days because he failed to notify employer of offensive working conditions and could not be said to have given employer “good cause” to quit), review denied (Minn. July 26, 1984).
Because the record supports the commissioner’s representative’s finding that relator voluntarily quit employment to avoid a possible disciplinary termination, no exception under Minn. Stat. § 268.095, subd. 1, applies, and relator is disqualified from receiving unemployment benefits.
 See, e.g., Krantz v. Loxtercamp Trans., Inc., 410 N.W.2d 24, 27 (Minn. App. 1987) (employee had good reason to quit after employer breached employment agreement by extending work hours); Porrazzo v. Nabisco, Inc., 360 N.W.2d 662, 665 (Minn. App. 1985) (substantially increased hours and responsibilities without increase in salary provided good reason for employee to quit); Nelson v. Bemidji Reg’l Interdistrict Council, 359 N.W.2d 38, 41 (Minn. App. 1984) (employee has good reason to quit if job responsibilities are increased without a corresponding increase in compensation).