This opinion will be unpublished and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
Keith S. Hook,
Bloomington Auto Care,
Commissioner of Employment and Economic Development,
Filed March 2, 2004
Department of Employment and Economic Development
Agency File No. 4836 03
Keith S. Hook, 3533 Wyoming Avenue South, St. Louis Park, MN 55426 (pro se relator)
Lee B. Nelson, Katrina I. Gulsted, Department of Employment and Economic Development, 390 North Robert Street, St. Paul, MN 55101 (for respondent Department of Employment and Economic Development)
Bloomington Auto Care, 1700 East Old Shakopee Road, Bloomington, MN 55425 (respondent)
Considered and decided by Klaphake, Presiding Judge, Randall, Judge, and Harten, Judge.
Relator challenges the decision by the commissioner’s representative that he was disqualified from receiving unemployment benefits because he quit without good reason attributable to his employer. Because the record reasonably supports the commissioner’s representative’s conclusion, we affirm.
Relator Keith S. Hook began working at respondent Bloomington Auto Care as an automotive technician on 20 January 2003. Through his first three days of employment, relator reported to work late. Respondent’s president, Donald Darnell, warned relator that he must begin working on time, and relator stated that he would try. But the pattern of tardiness continued: relator punched in 2 to 12 minutes after his 8:00 scheduled start time every day he was scheduled to work from 31 January through 10 February. On Tuesday, 11 February, Darnell met relator outside the shop and told him that he had to either report to work on time or work the second shift. The following day, relator arrived at work late, called a tow truck for his toolbox, and left.
The economic security department disqualified relator from receiving unemployment benefits, finding that he had been discharged for employee misconduct. Relator appealed.
At the hearing before the ULJ, relator testified that he had explained to Darnell when he was hired that he had arrived at his previous job between 10 minutes before and 10 minutes after 8:00. Relator testified that he is a single parent and has to drop off his son before going to work. He also explained that his travel time to Bloomington Auto Care fluctuates because of stoplights along the route. Relator also testified (contrary to Darnell’s testimony) that, because Darnell had told him that his choice was either to arrive on time or to be let go, he assumed that he was discharged when he arrived late the following day.
The ULJ affirmed, finding that relator had been discharged because he committed employee misconduct. The ULJ concluded that (1) relator was consistently late because he dropped his son off at a bus stop; (2) Darnell warned relator that he had to arrive at work on time or else his employment could be terminated; and (3) relator continued to arrive late after receiving the warning. Relator appealed.
The commissioner’s representative affirmed relator’s disqualification, but found that relator quit his employment. The commissioner’s representative found that, after relator arrived at work late on 12 February, he packed his tools and left without any indication from Darnell, by word or action, that he was actually discharged. The commissioner’s representative found that personal reasons, no matter how compelling, and anticipation of being discharged do not constitute good reasons for quitting caused by the employer. In addition, the commissioner’s representative determined that, even if relator had been discharged, the outcome would remain the same because the evidence indicates that he committed employee misconduct. Relator now challenges the commissioner’s representative’s findings.
On appeal, a reviewing court examines the decisions of the commissioner’s representative, rather that that of the employment law judge. Kalberg v. Park & Recreation Bd., 563 N.W.2d 275, 276 (Minn. App. 1997). Decisions of the commissioner’s representative are afforded “particular deference.” Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).
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). Factual findings are reviewed in the light most favorable to the commissioner’s decision and will not be disturbed as long as there is evidence that reasonably tends to sustain those findings. Schmidgall v. Filmtec Corp., 644 N.W.2d 801, 804 (Minn. 2002).
The commissioner’s representative found that relator quit his employment. “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) (2002). “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. § 268.095, subd. 5(a) (2002). An employee, who was notified of a future discharge and ends employment while employment in any capacity is still available, has quit employment. Minn. Stat. § 268.095, subd. 2(b).
Darnell testified that, on 12 February, relator came into the auto shop after 10:30, waited for a tow truck to pick up his tools, and did not speak to anyone before leaving with the tow truck. Relator testified that Darnell met him outside the shop when he arrived at 8:20 that morning, he told Darnell there was nothing he could do because a car had stalled to block traffic, and he then called a tow truck to take his tools. The evidence, when viewed in the light most favorable to the conclusion, supports the commissioner’s representative’s findings that relator’s employer did not indicate to relator that he was discharged.
The commissioner’s representative also determined that relator did not have good reason to quit caused by the employer. An employee who quits without good reason caused by the employer is disqualified from receiving unemployment benefits. Minn. Stat. § 268.095, subd. 1(1) (2002). The determination that an employee quit without good reason attributable to the employer is a legal conclusion, but it must be based on findings that have the requisite evidentiary support. See Zepp v. Arthur Treacher Fish & Chips, Inc., 272 N.W.2d 262, 263 (Minn. 1978). A good reason attributable to the employer is directly related to the employment and is significant to cause an average, reasonable person to become unemployed rather than remain in employment. Minn. Stat. § 268.095, subd. 3(a) (2002).
Relator testified that he could not make a firm 8:00 start because he drops his son off at a bus stop before going to work. He also testified that he could not work the night shift because he needs to be at home with his son in the evenings. He now claims that he would not have quit his previous job if he had known that his tardiness would be a problem for respondent. But good personal reasons to quit do not equate with good reason attributable to the employer. Edward v. Sentinel Mgmt. Co., 611 N.W.2d 366, 368 (Minn. App. 2000), review denied (Minn. 6 June 2000).
Relator also testified that Darnell told him on 11 February to either arrive to work on time or he would be discharged, causing him to assume that he was discharged after he arrived to work late on 12 February. But notification of a future discharge is not considered good reason to quit attributable to the employer. Minn. Stat. § 268.095, subd. 3(d). We therefore conclude that the commissioner’s representative’s finding that relator quit his employment without good reason attributable to his employer is reasonably supported by the evidence.