This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-962

 

Anthony E. Ntamere,

Relator,

 

vs.

 

DecisionOne Corp.,

Respondent,

 

Commissioner of Employment and Economic Development,

Respondent.

 

Filed February 8, 2005

Affirmed

Dietzen, Judge

 

Department of Employment and Economic Development

Agency File No. 468-03

 

Anthony E. Ntamere, 1205 Hawthorne Avenue South, #111, Minneapolis, MN 55403 (pro se relator)

 

Lee B. Nelson, Linda A. Holmes, Department of Employment and Economic Development, E2000 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101 (for respondent Commissioner of Employment and Economic Development)

 

DecisionOne Corporation, c/o Sheakley Uniservice Inc., P.O. Box 11874, Harrisburg, PA 17108-1874 (respondent)

 

††††††††††† Considered and decided by Toussaint, Chief Judge; Dietzen, Judge; and Huspeni, Judge.*


U N P U B L I S H E D†† O P I N I O N

 

DIETZEN, Judge

 

††††††††††† By writ of certiorari, relator Anthony Ntamere challenges the commissioner of employment and economic developmentís decision disqualifying him from receiving unemployment benefits.† Because the record reasonably supports the decision of the commissionerís representative that relator quit without good reason caused by the employer, we affirm.†

FACTS

††††††††††† Relator was employed with respondent DecisionOne Corp. as a customer service representative from June 1997 to November 2002.† From his date of hire until August 2001, relator worked on the third shift, which covered weekend hours, earning him an upward shift differential of $2.14 per hour on his base pay of $10.68 per hour.† In August 2001, relator was notified that the third shift was being eliminated.† Respondent gave relator the option of severance pay if he quit or a position on a different shift, and relator accepted a position on the second shift.† In spring 2002, respondent eliminated the second shift and transferred relator to the first shift, which included no weekend hours, no upward shift differential, and according to relator, no offer of severance pay.† The loss of the shift differential reduced relatorís total wages by 16.7 percent, but he suffered no reduction of his base hourly pay rate.† Relator quit his employment in November 2002.†††

Relator suffers from irritable-bowel syndrome (IBS).† To accommodate this condition, respondentís team manager moved relatorís workspace to a more comfortable location and allowed relator longer work breaks.†† In September 2002, relator received a revised copy of respondentís employee handbook, which provided that respondent had the right to alter any policies in the manual.† Relator signed the handbookís acknowledgment page but wrote additional comments stating that he did not accept respondentís right to change his benefits.† In a hearing before the unemployment law judge (ULJ), relator testified that his comments specifically referred to the potential loss of a severance-pay benefit.†

Relatorís original unemployment benefits claim was denied by a department adjudicator, the ULJ, and the commissionerís representative.† This court reversed and remanded because the department did not comply with relatorís subpoena requests.† Ntamere v. DecisionOne Corp., 673 N.W.2d 179 (Minn. App. 2003).† On remand, relatorís claim was again denied by the ULJ and the commissionerís representative.†

D E C I S I O N

††††††††††† On certiorari appeal, a reviewing court must examine the decision of the commissionerís representative, rather than that of the ULJ.† Kalberg v. Park & Recreation Bd. of Minneapolis, 563 N.W.2d 275, 276 (Minn. App. 1997).† Decisions of the commissionerís representative are accorded ďparticular deference.Ē† Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).†

††††††††††† Under Minn. Stat. ß 268.095, subd. 1 (2002)[1], an employee who quits employment is disqualified from receiving unemployment benefits unless a statutory exception applies.† Id.† Relator contends that he qualifies under the exception allowed for ďa good reason caused by the employer[.]Ē† Id., subd. 1(1).† A good reason caused by the employer is defined as a reason ď(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 become unemployed rather than remaining in the employment.Ē† Id., subd. 3(a) (2002).† The determination that an employee quit without good reason attributable to the employer is a legal conclusion, but 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) (interpreting predecessor statute, requiring ďgood causeĒ attributable to employer).† Additionally, ď[a] substantial adverse change in the wages, hours, or other terms of employment by the employer shall be considered a good reason caused by the employer for quitting[.]Ē† Minn. Stat. ß 268.095, subd. 3(c).† Finally, if an employer subjects an employee to adverse working conditions, the employee must notify the employer and give the employer a reasonable opportunity to correct the condition.† Id., subd. 3(b).†††

††††††††††† Relator contends that his 16.7 percent wage reduction resulting from the transfer to the first shift is a substantial adverse change in wages that provides good cause to quit.† In determining what constitutes a substantial adverse change, Minnesota courts have held that a reduction in wages of between 19 and 25 percent, but not a reduction of wages of 15 percent or less, constitutes a good reason caused by the employer for quitting.† See Sunstar Foods, Inc. v. Uhlendorf, 310 N.W.2d 80, 84 (Minn. 1981) (citing cases from various jurisdictions); see also Rootes v. Wal-Mart Assocs., Inc., 669 N.W.2d 416, 419 (Minn. App. 2003) (holding that wage reduction of $1.75 per hour, in addition to a new weekend work shift, was a good reason to quit); Danielson Mobil, Inc. v. Johnson, 394 N.W.2d 251, 253 (Minn. App. 1986) (holding that wage reduction of 19 percent was a good reason to quit); but see Dachel v. Ortho Met, Inc., 528 N.W.2d 268, 270 (Minn. App. 1995) (holding that wage reduction of 10 percent, or $1.07 per hour, was not a good reason to quit).†

††††††††††† We conclude that relatorís 16.7 percent wage reduction due to the loss of the upward shift differential does not amount to a substantial adverse change that constitutes a good reason for quitting caused by the employer.† The reduction is less than the 19 percent decrease in Johnson, which this court found was a good reason to quit.† Johnson, 394 N.W.2d at 253.† In evaluating whether the reduction provided a good cause to quit we also consider that once relator was transferred to a regular daytime schedule during the week, respondent reasonably concluded that relator was no longer entitled to the weekend shift differential.† Relator did not receive a reduction in his base hourly pay, but, like all other employees, was simply no longer eligible for the wage premium because weekend work was no longer available.

††††††††††† Relator also claims that he was subjected to adverse working conditions because other employees exhibited hostility to his more frequent breaks and new workspace that accommodated his IBS.† But relator did not report any hostile acts to respondent, as required by Minn. Stat. ß 268.095, subd. 3(b).† Finally, relator contends that he was not given the opportunity to accept severance pay when he was transferred to the first shift in spring 2002.† But relator was not discharged from employment.† Instead, he was transferred to weekday hours upon elimination of the second shift, and no evidence in the record indicates that severance pay upon termination was a condition of relatorís employment.†

In his testimony before the ULJ, relator repeatedly raised personal concerns regarding respondentís corporate stability, his opposition to respondentís updated employee handbook, and his team managerís indifference to his IBS.† The commissionerís representativeís findings of fact that ď[t]he loss of the shift differential was less of a considerationĒ for quitting is amply supported in the record.† On this record, relatorís subjective reasons for quitting do not constitute a good reason caused by the employer that would qualify relator for unemployment benefits.†

††††††††††† Affirmed.† ††††††



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

[1] Because the discharge occurred in November 2002, we apply the 2002 version of the statute.† Brown v. Natíl Am. Univ., 686 N.W.2d 329, 332 (Minn. App. 2004), review denied (Minn. Nov. 16, 2004).†