This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Rodney E. Duklet,
Stellar Concrete & Masonry,
Commissioner of Employment and Economic Development,
Filed July 26, 2005
Department of Employment and Economic Development
File No. 10391 04
Rodney E. Duklet,
& Masonry, Stellar Contractors, Inc.,
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 Minge, Presiding Judge; Lansing, Judge; and Halbrooks, Judge.
By writ of certiorari, relator challenges the determination that he quit his employment without a good reason attributable to his employer, thereby disqualifying him from receiving unemployment benefits. Because the record reasonably supports the findings and the decision that relator quit without good reason attributable to his employer, we affirm.
From June 1997 to November 2003, relator Rodney Duklet was employed by respondent Stellar Concrete & Masonry (Stellar) as a finisher foreman. In that capacity, Duklet supervised a crew of construction workers in commercial concrete and masonry projects and earned approximately $40 per hour. Due to the seasonal nature of the construction business, Stellar is often forced to terminate several people per week during the winter months. Termination decisions are largely influenced by a worker’s seniority within the company. As Stellar’s president explained, “[T]he people that have been with us the longest, . . . our leaders and supervisors, are generally the ones that get laid off last.”
Duklet was scheduled to retire from Stellar in January 2004. But in the fall of 2003, and faced with the prospect of winter layoffs, Duklet offered to take a “voluntary layoff” in order to ensure that “somebody else who had a wife and kids” would not be laid off. In addition, he explained that he “didn’t want to work when it was cold [outside]” and that he would “rather have [been] laid off than somebody else.” When questioned by the unemployment-law judge (ULJ), Duklet testified:
Q: Okay. When you took the voluntary layoff did you know that you weren’t going to be returning to work?
A: Pretty much so, yes. I guess to admit that I do. I just didn’t want to walk outside. I worked outside since I was twelve years old. I didn’t want to work in the cold.
A: I mean lay me off so I can be warm.
The ULJ found that Duklet “volunteered to be laid off,” concluding that he quit his employment because “the decision to end the employment was [Duklet’s].” The senior unemployment-review judge (SURJ) declined to conduct further proceedings and adopted the findings and decision of the ULJ in full. This appeal follows.
We normally review the
decision of the SURJ rather than that of the ULJ. Tuff v. Knitcraft Corp., 526 N.W.2d
50, 51 (
I. Factual Findings
challenges two of the factual findings made by the ULJ. On appeal, this court views the
factual findings 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 (
Duklet first challenges the finding that he “quit when he chose to take voluntary retirement on 11-1-03.” But the ULJ’s finding actually states that Duklet “volunteered to be laid off on November 1, 2003. The applicant intended to retire as of January 1, 2004.” Nevertheless, Duklet himself testified that he would rather have been “laid off than somebody else” and that he was planning to retire in January 2004. Because there is evidence reasonably tending to sustain the ULJ’s finding that Duklet voluntarily agreed to be laid off, we will not disturb it.
Duklet next challenges the finding that Stellar would not have laid him off if he had not volunteered and that “[c]ontinuing work was available” for him. In his brief, Duklet explains that another senior employee had been laid off in late 2003 and that “work was slow and sporadic.” But this information was not offered at the hearing. Regardless, Stellar’s president specifically stated that if Duklet had not offered to leave, he would have been retained and “somebody else would’ve had to leave.” Because there is evidence in the record to reasonably sustain the ULJ’s finding, we will not disturb it.
II. Decision to Quit Employment
Duklet essentially argues that he did not quit his employment, explaining that while his retirement was completely voluntary, his “lay off was [Stellar’s] sole decision.” Duklet maintains that although he agreed to the layoff, the final decision to terminate was made by Stellar, and that he had been willing to return to work if requested but that such a request was never made. We must therefore determine whether Duklet quit of his own volition or whether he quit because of a good reason caused by his employer.
A. Quit Employment
employee has been discharged or voluntarily quits is a question of
fact[.]” Midland Elec., Inc. v.
Johnson, 372 N.W.2d 810, 812 (
the ULJ determined that Duklet quit his employment. The record clearly supports the fact that
Duklet, approaching retirement, quit his employment so “somebody else” would
not have to lose their job. Duklet also
admitted that he would not be returning to Stellar after agreeing to a
voluntary layoff because he would be retiring in a couple of months
anyway. The decision to quit was
Duklet’s alone; Stellar simply accepted Duklet’s offer to quit. Duklet’s actions therefore fall under the
statutory definition of “quit.” Minn.
Stat. § 268.095, subd. 2(a). Because the
record supports the fact that Duklet quit his employment of his own accord, he
is statutorily disqualified from receiving unemployment benefits.
B. Good Reason Caused by Employer
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 (
[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.
Here, the record makes clear that Duklet quit his employment through no fault of—or without a good reason caused by—his employer. Stellar was not in any way responsible for Duklet’s decision to leave early; the decision was Duklet’s alone. Nor can Duklet’s seemingly altruistic motive to quit—so that younger workers with families would not have to be laid off—be attributed to his employer as a significant and compelling reason for Duklet to quit for purposes of unemployment compensation.
 Minn. Stat. § 268.105, subd. 2a(a) (2004), gives the SURJ “discretion to decline to conduct a de novo review” if, as here, the ULJ affirms a prior determination issued by the Department of Employment and Economic Development.
Prior to the amendment of the unemployment-benefits
statutes in 2003, the commissioner’s representative reviewed the decisions of
the ULJ. The amendment created the new
position of SURJ, who acts in a similar capacity as the commissioner’s representative
under the previous schema. Minn. Stat. §
268.105, subd. 2 (2004); 2004
 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).
 In addition, “[n]otification of discharge in the future, including a layoff due to lack of work, shall not be considered a good reason caused by the employer for quitting.” Minn. Stat. § 268.095, subd. 3(d) (Supp. 2003). But Duklet was never in danger of discharge. Instead, he had plans to retire in January 2004.