This opinion will be unpublished and

may not be cited except as provided by

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






Travis L. Wavescorx,





Boise Cascade Office Products, Inc.,



Commissioner of Employment and Economic Development,



Filed March 15, 2005


Halbrooks, Judge



Department of Employment and Economic Development

File No. 19909 03



Travis L. Wavescorx, 235 North Nathan Lane, Apt. #133, Plymouth, MN 55441 (pro se relator)


Boise Cascade Office Products, Inc., 7500 Meridian Circle North, Maple Grove, MN 55369 (respondent)


Lee B. Nelson, Linda A. Holmes, Department of Employment and Economic Development, E200 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101 (for respondent commissioner)




            Considered and decided by Schumacher, Presiding Judge, Toussaint, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N


            Relator challenges the decision by the commissioner’s representative that he is disqualified from receiving unemployment benefits because he quit employment without good reason attributable to his employer.  Relator argues that (1) he did not quit, but that he was fired for requesting time off; and (2) the hearing was unfair because he did not have the opportunity to explain the situation to the judge, he was not given enough time to speak, and the court improperly failed to consider evidence as to his strong work ethic.  Because there is evidence reasonably supporting the finding that relator quit and because relator’s procedural due-process rights were not violated, we affirm.


            Relator Travis L. Wavescorx was employed as a warehouse specialist for Boise Cascade Office Products (Boise).  On October 7, 2003, Wavescorx spoke with two of his supervisors, John Schaefer and Norm Peterson, to request time off—beginning the following day and lasting until October 24—so that he could attend an animation convention in Florida.  His request was denied because he had not provided adequate notice and because he did not have sufficient paid time off (PTO) to cover the request. 

The parties dispute what happened next.  According to Wavescorx, he was “terminated for asking for the time off.”  But Boise maintains that Wavescorx voluntarily quit his job by failing to show up for work after being told that doing so would be considered a resignation. 

Wavescorx testified that after requesting the time off, he was told that Peterson would have to make some calls.  A short time later he was summoned to Peterson’s office.  At this point Peterson allegedly told Wavescorx that “[he] would not be granted the time off and said that [Wavescorx] no longer work[ed] [t]here . . . .  [Wavescorx] asked if [he] was fired, and [Peterson] said no.  [Wavescorx then] asked if [he] was laid off, and [Peterson] said, no . . . you quit[.]”  According to Wavescorx, he then told Peterson that he planned to return to work the next day unless he was told not to do so, to which Peterson replied, “why would you come back, you no longer work here.” 

Wavescorx then asked Peterson to sign and date the request for time off.  He testified that Peterson then asked “why would I sign . . . something for you, you no longer work here, and why would you ask for time off from a job you no longer have.”  After Wavescorx pressed for a signature, Peterson said that he would have to make some calls.  A short time later, Schaefer brought Wavescorx the request, signed by Peterson.  Wavescorx stated that he thanked Schaefer and “expressed . . . second thoughts about going to Florida,” but that Schaefer told him that he was “already terminated from the system.” 

Wavescorx went to Florida for a week, but testified that he “had every intention” of returning to work.  But when he got home, his final paycheck and a notice of termination had arrived in the mail.  Consequently, he never went back to Boise. 

            Boise, on the other hand, maintains that Wavescorx was never discharged, but voluntarily resigned when he failed to show up for work.  Peterson testified that neither he nor Schaefer ever said that Boise was terminating Wavescorx.  Instead, Peterson stated that Wavescorx was “adamant” about going to Florida and that he told Wavescorx “you need to do what you need to do, but you’re making the choice to quit[.]” 

Schaefer likewise testified that, when informed that he could not have the time off, Wavescorx said that he was “going to have to quit then,” and that Peterson told him to do what he had to do.  According to Schaefer, if Wavescorx had shown up at Boise on October 8, he would have been allowed to work.  Schaefer also denied that Wavescorx ever expressed any second thoughts about going to Florida. 

The Department of Employment and Economic Development issued a determination that Wavescorx had been involuntarily dismissed for reasons other than misconduct and was therefore not disqualified from receiving benefits.  Boise appealed.  The unemployment law judge (ULJ) reversed the determination, finding that Wavescorx voluntarily quit his employment when he failed to report to work on October 8.  Wavescorx then appealed the ULJ’s decision, and the commissioner’s representative upheld the decision of the ULJ.  This certiorari appeal follows.


On appeal, this court reviews the decision of the commissioner’s representative rather than that of the unemployment law judge.  Weaver v. Minn. Valley Labs., Inc., 470 N.W.2d 131, 133 (Minn. App. 1991).  The standard of review in economic-security cases is narrow.  McGowan v. Executive Express Transp. Enters., 420 N.W.2d 592, 594 (Minn. 1988).  The factual findings of the commissioner’s representative are “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).  On questions of law, this court is not bound by the commissioner’s conclusions, but exercises its own independent judgment.  Markel v. City of Circle Pines, 479 N.W.2d 382, 384 (Minn. 1992).  Whether a person quit his or her job is a question of fact.  Shanahan v. Dist. Mem’l Hosp., 495 N.W.2d 894, 896 (Minn. App. 1993).  But whether an applicant is disqualified from receiving unemployment benefits is a question of law.  Markel, 479 N.W.2d at 384.

“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. 2003).  In contrast, “[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).  “The test for determining whether an employee has voluntarily quit is whether the employee directly or indirectly exercises a free-will choice to leave the employment.”  Shanahan, 495 N.W.2d at 896.

            The commissioner’s representative acknowledged that there was conflicting evidence as to whether Wavescorx quit or was discharged.  “When the parties have presented conflicting evidence on the record, this court must defer to the [c]ommissioner’s ability to weigh the evidence.”  Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995).  The parties agree that Wavescorx’s request for time off was denied and that Wavescorx did not report for work on October 8.  There is no documentary evidence that Wavescorx was discharged on October 7, and the employer testified that he was not terminated.  The commissioner’s representative resolved the factual dispute in favor of Boise, expressly determining that the employer provided the more credible testimony and evidence.  The record thus provides sufficient support for the commissioner’s representative’s finding of fact that Wavescorx quit his employment.

            Under Minnesota unemployment law, in general, “[a]n applicant who quit employment shall be [disqualified from] all unemployment benefits . . . .”  Minn. Stat. § 268.095, subd. 1 (Supp. 2003).[1]  Because he found that Wavescorx quit his job with Boise, the commissioner’s representative did not err in holding that Wavescorx was disqualified from receiving unemployment benefits. 

            Wavescorx suggests that his hearing was not fair because he had not yet received information from Boise regarding the name of its attorney, potential witnesses, and descriptions of documents.  But Wavescorx raised this issue to the ULJ, who asked Wavescorx, “[a]side from the difficulties with the process, was there some document or piece of information that you felt you needed that you didn’t get?”  Wavescorx responded, “No.  No, not necessarily.  No.”  Thus, it is not clear how Wavescorx has been prejudiced by this situation.

            Wavescorx next argues that the hearing was unfair because he did not have the opportunity to fully explain to the ULJ that he was not informed that Boise would be represented by counsel,[2] that he was not given enough time to speak, and that the court improperly failed to consider evidence as to his strong work ethic.  While not directly stated, Wavescorx appears to be arguing that his due-process rights were violated.

            “Unemployment benefits are an entitlement protected by the procedural due process requirements of the fourteenth amendment.”  Schulte v. Transp. Unlimited, Inc., 354 N.W.2d 830, 832 (Minn. 1984).  Due process requires that a party receive adequate notice and an opportunity to be heard.  Id. at 833-34.  In this context, the opportunity to be heard means the “opportunity to be present during the taking of testimony or evidence, to know the nature and contents of all evidence adduced in the matter, and to present any relevant contentions and evidence the party may have.”  Juster Bros., Inc. v. Christgau, 214 Minn. 108, 119, 7 N.W.2d 501, 507 (1943). 

            Wavescorx suggests that he was not given enough time to speak, but points to nothing in the record to indicate that he was provided insufficient time to present his case.  He was asked by the ULJ whether he had any other questions.  He responded, “No, I thought of something I’d like to add.”  The ULJ then allowed Wavescorx to add the desired testimony. 

            It is true that the ULJ did not allow Wavescorx to introduce his performance review.  But the commissioner is authorized to adopt evidentiary rules for unemployment-compensation hearings and those rules need not conform to the Minnesota Rules of Evidence.  Minn. Stat. § 268.105, subd. 1(b) (2002).  Under the rules adopted by the commissioner, the decision to admit or exclude evidence is generally within the discretion of the ULJ.  Minn. R. 3310.2922 (2003).  Here, Boise did not dispute Wavescorx’s work performance.  The issue was whether Wavescorx quit or was discharged.  Thus, the performance review was not relevant, and the ULJ did not abuse his discretion in refusing to admit it into evidence. 


[1]  The revisor’s office inadvertently substituted the term “ineligible for” for the term “disqualified from” in Minn. Stat. § 268.095, subds. 1, 4, 7, 8(a) (Supp. 2003).  See Minn. Stat. § 268.095, subds. 1, 4, 7, 8(a) (2002) (using term “disqualified from”); 2003 Minn. Laws 1st Spec. Sess. ch. 3, art. 2, § 11 (making other changes to Minn. Stat. § 268.095, subd. 1, but retaining term “disqualified from”); 2003 Minn. Laws 1st Spec. Sess. ch. 3, art. 2, § 20(j), (k) (directing revisor to change the term “disqualified from” to “ineligible for” only in Minn. Stat. § 268.095, subd. 12, and then to renumber to Minn. Stat. § 268.085, subd. 13b).

[2] There is no indication in the record that Wavescorx raised this issue to the ULJ.