This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1333

 

Roy V. Jewett,

Relator,

 

vs.

 

John Henry Construction, Inc.,

Respondent,

 

Commissioner of Employment and Economic Development,

Respondent.

 

Filed April 5, 2005

Affirmed

Huspeni, Judge*

 

Department of Employment and Economic Development

File No. 5302 04

 

Roy V. Jewett, P.O. Box 443, Eden Valley, MN  55329-0443 (pro se relator)

 

John Henry Construction, Inc., 17060 142nd Street S.E., Big Lake, MN  55309-8925 (respondent)

 

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

 

            Considered and decided by Minge, Presiding Judge; Wright, Judge; and Huspeni, Judge.

U N P U B L I S H E D   O P I N I O N

HUSPENI, Judge

            Relator challenges the decision of the commissioner’s representative that he was disqualified from receiving unemployment benefits because he had quit employment.  Relator contends that he had been laid off and was therefore qualified for unemployment benefits.  Because the evidence in the record reasonably supports the determination that relator quit without good reason caused by the employer, we affirm.

FACTS

            Relator Roy Jewett was employed by respondent John Henry Construction, Inc., which does masonry construction, from February 10, 2003, through October 31, 2003.  Relator worked as a bricklayer/improver, and his scheduled pay rate was $27.04 an hour.  He was not yet a full journeyman bricklayer, but instead was considered to be a bricklayer-in-training or an apprentice bricklayer.  His position included responsibilities not only for direct work with brick, but laborer work as required.

            When Jewett was assigned to a job site on which he was required to work as a laborer, he became frustrated.  A few days later, he told his supervisor that he only wanted to cut and lay brick and did not wish to work as a laborer.  He also said he wanted a raise.  According to Jewett’s version of events, his supervisor told him that he could not do so and Jewett told him, “Well, then you got to lay me off.”  His supervisor responded that, “I guess I got to lay you off,” and then walked out the door.  Jewett testified that when the supervisor did not return, Jewett left and applied for unemployment benefits.

            According to the supervisor, after he told Jewett that he could not meet his demands, Jewett told him that he would quit, asserting that there were ten other employers he could work for.  The supervisor told him that he had better do that because he, the supervisor, was unable to meet Jewett’s demands.  The supervisor explained that Jewett’s abilities did not warrant 100% journeyman pay and that Jewett could not lay brick full time.  The supervisor denied telling Jewett that he was going to lay him off, noting he had no intention of doing so, that Jewett was scheduled to work that day, and that he had work for Jewett to do.  He described Jewett as a very steady employee who was very, very diligent, was never late, and never caused problems.

            When Jewett applied for unemployment benefits, it was determined that he was disqualified because he had quit work.  On appeal, and after a hearing before an unemployment law judge, the disqualification was upheld.  After another appeal, the commissioner’s representative affirmed.  Jewett then brought this certiorari appeal.

D E C I S I O N

            The findings of fact by the commissioner’s representative are viewed in the light most favorable to the decision and if there is any reasonable evidence to sustain the findings, they will be affirmed.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  The appellate court will review questions of law de novo.  Id.  Whether the employee quit employment voluntarily or was involuntarily terminated is a question of fact.  Shanahan v. Dist. Mem’l Hosp., 495 N.W.2d 894, 896 (Minn. App. 1993).  We defer to the findings of the commissioner’s representative.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).

            An applicant who quits employment is disqualified from receiving unemployment benefits unless an exception applies.  Minn. Stat. § 268.095, subd. 1 (Supp. 2003).[1]  But an employee who is discharged is qualified for benefits unless the discharge was based on misconduct.  Id., subd. 4 (Supp. 2003).  Relator argues that he was qualified for benefits because he was laid off.

            “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).  “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.  A layoff due to lack of work shall be considered a discharge.”  Minn. Stat. § 268.095, subd. 5(a) (2002).

            In this case, the commissioner’s representative found that Jewett’s job included laborer responsibilities; that he had requested that he be given an increase in pay and that he only perform bricklaying duties; that he said that he had other companies that would pay him more; and that his supervisor then told him he had better do so because the supervisor could not meet his demands.  The commissioner’s representative determined that Jewett left work and performed no further work for the employer, that he had been given no information that he was discharged, and that the employer had full-time work available for him.  Clearly giving greater credibility to the testimony of the supervisor than to that of Jewett, the commissioner’s representative concluded that Jewett had quit his employment.

            Jewett contends that the evidence shows that he did not quit.  He asserts that, contrary to the finding by the commissioner’s representative, his supervisor told him that he, the supervisor, would have to lay Jewett off.  Jewett also cites other evidence in support of his claim that he did not quit.  First, he cites the fact that he bought a home in March, eight months before this incident happened, and asserts people do not quit a steady job immediately after taking on a large responsibility.  Further, he notes that he immediately signed up for unemployment and received it for three months and that it was not until he opened up a new claim that his former employer said that he quit.  He notes he also continued paying his union dues, which he would not have done had he quit.  Jewett also asserts that he did not tell his employer that there were ten other employers he could have worked for.  He notes that his employer described him as a very steady employee who had always performed well.  He asserts that this not only shows his character but his reliability.

            Jewett’s arguments are challenges to the credibility determination of the commissioner’s representative.  The duty of this court, however, is to review whether the findings of the commissioner’s representative were reasonably supported by the record.  Schmidgall, 644 N.W.2d at 804.  Our review of the record shows that the findings are fully supported by the record.

            An additional claim raised by Jewett is that, if he did in fact quit, the quit was for good reason due to a substantial change in the terms of employment.  Minn. Stat. § 268.095, subd. 3 (Supp. 2003).  Jewett asserts that his job description was that of a bricklayer/improver and he had been assigned to work only as a laborer.

            If an employee quits for good reason caused by his employer, he is qualified to receive unemployment benefits.  Minn. Stat. § 268.095, subd. 1(1) (Supp. 2003).  A good reason to quit occurs when it is “significant and would compel the average, reasonable worker to quit and become unemployed rather than remaining in the employment.”  Id., subd. 3(a)(2).  The commissioner’s representative noted that Jewett complained about his pay and duties, but that he was being paid an appropriate rate and performing duties pursuant to this employment agreement.  The record amply supports the determination of the commissioner’s representative.  Jewett was  employed as a bricklayer/improver whose duties explicitly included work as a laborer; he was not yet a full journeyman bricklayer.  He continued to receive his full wage rate whether he was working as a bricklayer, as a laborer, or as a combination of both.  The conditions under which Jewett worked would not cause a reasonable person to quit.

            The decision of the commissioner’s representative that Jewett was disqualified from receiving unemployment benefits because he quit without good reason caused by his employer is affirmed.

            Affirmed.



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

[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).