This opinion will be unpublished and

may not be cited except as provided by

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







Jose M. Gutierrez,


American Masonry Restoration Corp.,

Commissioner of Employment and Economic Development,


Filed May 24, 2005


Wright, Judge


Department of Employment and Economic Development

File No. 989 04



Jose M. Gutierrez, 1117 Blaine Avenue, Racine, WI  53405-2904 (pro se relator)


American Masonry Restoration Corp., 7701 East River Road, Fridley, MN  55432-2458 (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 Wright, Presiding Judge; Randall, Judge; and Minge, Judge.


U N P U B L I S H E D  O P I N I O N




Relator challenges the decision of the commissioner’s representative that he quit his employment without a good reason attributable to the employer and is, therefore, disqualified from receiving unemployment benefits.  We affirm.



Relator Jose Gutierrez worked on masonry projects with American Masonry Restoration Corporation (American Masonry) for several years.  After working on an outdoor project during the fall of 2001, Gutierrez continued working through the winter because indoor work was available.  However, American Masonry laid off Gutierrez in November 2002 because work was not available during the winter of 2002-2003.  He resumed his work in May 2003 and continued working until November 7, 2003, earning $27.20 per hour.  This latter period of employment is the subject of this appeal.

During this period of employment, Gutierrez worked in Fridley, Minnesota, while maintaining his residence in Racine, Wisconsin.  He stayed at a motel in Minnesota during the work week and returned to Racine on weekends.  The distance between his residence and work was more than 350 miles. 

Although Gutierrez was never guaranteed 40 hours of work per week, he was considered a full-time employee.  The nature of the work was often dependant on the weather.  At times, without advance notice, Gutierrez did not work a full week because of unfavorable weather conditions.

One such week occurred in October 2003.  Following a week of reduced hours, Gutierrez asked to be laid off because he could not support his family and pay for his hotel, food, and travel expenses without working a 40-hour week.  Gutierrez’s supervisor declined the request because the employer had upcoming work assignments for Gutierrez.   Gutierrez remained employed for three additional weeks.  On November 7, 2003, he quit and applied for unemployment benefits shortly thereafter.  After several appeals, including a remand for a hearing, the commissioner’s representative determined that, because Gutierrez quit his employment “without good reason caused by the employer,” he was disqualified from receiving unemployment benefits.  This certiorari appeal followed.



We review the decision of the commissioner’s representative rather than that of the unemployment law judge. Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  In doing so, we view the factual findings of the commissioner’s representative 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).  “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).   Whether an employee has a good reason to quit caused by the employer is a question of law, which we review de novo.  Peppi v. Phyllis Wheatley Cmty. Ctr., 614 N.W.2d 750, 752 (Minn. App. 2000).

As an initial matter, we consider whether Gutierrez quit or was discharged from his employment.  Under Minnesota law, an applicant for unemployment benefits who quit employment without a good reason caused by the employer is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 1 (Supp. 2003).[1]  “A quit from employment occurs when the decision to end the employment was, at the time the employment ended, the employee’s.”  Id., subd. 2(a) (Supp. 2003).  A discharge from employment, however, “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.”  Id., subd. 5 (2002).

Gutierrez testified that he asked his supervisor to lay him off for the winter because he anticipated that the weather would prevent him from working the number of hours necessary to earn enough to pay for commuting expenses and to support his family.  Gutierrez quit shortly after his employer denied the layoff request.  Because Gutierrez chose to end the employment at a time when his employer had work available for Gutierrez, the commissioner’s representative correctly determined that Gutierrez quit his employment. 

            In light of this conclusion, we next consider whether Gutierrez had a good reason to quit caused by the employer.  Gutierrez argues that his employer’s refusal to lay him off during the winter when the weather might not permit him to work a 40-hour week constitutes a good reason to quit attributable to the employer because working fewer than 40 hours prevented him from earning enough money to pay his household and work-related expenses.  Under Minnesota law,

(a)  A good reason caused by the employer for quitting is a reason:

                        (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.


Id., subd. 3(a) (Supp. 2003).  “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 unless the change occurred because of the applicant’s employment misconduct.”  Id., subd. 3(c) (Supp. 2003). 

            Gutierrez’s decision to quit was based on his belief that he would have insufficient hours in the future to cover his expenses.  These expenses were exacerbated by Gutierrez’s decision to reside in Racine and commute to Fridley weekly.  But Gutierrez, not his employer, was responsible for the commuting expenses, which were a critical factor in his decision to quit.  Because Gutierrez’s work was somewhat dependent on the weather, his employer never guaranteed him a 40-hour work week.  And at the time he quit, Gutierrez had experienced only one week during which he had not worked 40 hours.  Thus, the record does not support a conclusion that his decision to quit was motivated by a substantial adverse change in hours or wages.  Gutierrez testified that he was concerned that he would not be able to work enough hours during the winter months to cover his expenses.  But at the time he quit, Gutierrez’s employer had work available for him to perform.  Gutierrez’s reason for quitting, therefore, does not constitute a good reason caused by the employer.  Because Gutierrez quit without a good reason caused by the employer, the commissioner’s representative did not err in concluding that Gutierrez is disqualified from receiving unemployment benefits.

            Gutierrez argues for the first time on appeal that he quit his employment because he was required to perform substandard work against his will.  In advancing this claim, Gutierrez relies on information that is not part of the record below.  The record on appeal comprises only the papers, exhibits, and transcripts of the testimony that were reviewed by the commissioner’s representative.  See Minn. R. Civ. App. P. 110.01; Minn. R. Civ. App. P. 115.04.  Further, “[i]t is well settled that an appellate court may not base its decision on matters outside the record on appeal, and that matters not produced and received in evidence below may not be considered.”  Plowman v. Copeland, Buhl & Co., 261 N.W.2d 581, 583 (Minn. 1977).  Although there are exceptions to this rule, the information provided does not meet any of these exceptions.  Because this argument was neither considered nor decided by the commissioner’s representative and because it relies on information outside the record, we decline to address this issue on appeal.


[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).