This opinion will be unpublished and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
Duane J. Pomeroy,
Fusion Coatings Division,
Department of Employment and Economic Development,
Affirmed; motion granted
Department of Employment and Economic Development
File No. 15465 04
Katherine A. McBride, Meagher & Geer, P.L.L.P.,
Considered and decided by Worke, Presiding Judge; Willis, Judge; and Minge, Judge.
Relator challenges the decision of the SURJ that he was disqualified from receiving unemployment compensation benefits because he quit without good reason caused by his employer. Because the SURJ did not impermissibly consider evidence outside the record, and because the SURJ did not err in concluding that relator’s work situation would not have caused an average, reasonable worker to quit and that relator quit for other reasons, we affirm.
Relator Duane J. Pomeroy began working for Fusion Coatings, Inc. (“Fusion”) in May 1987. When his employment terminated in September 2004, Pomeroy was working as a production welder. In January 2004, Fusion instituted an increase in the pace of its welding assembly line, requiring the production of one unit per two and one-half minutes instead of one unit per three and one-half minutes. Pomeroy met with his supervisors and indicated that he was having trouble adapting to the faster pace, and requested a switch to a different production line with a slower pace. Pomeroy was older than the others on the line and characterized his situation as “we’re all going 70 miles an hour, but the other guys are driving Vipers and I’m driving a Yugo.”
The unemployment law judge (“ULJ”) heard conflicting testimony about the reaction of Pomeroy’s supervisor to his request to switch positions. Pomeroy testified that his supervisor flatly refused to let him switch positions, as he had not yet gained the required proficiency level on his current line. Pomeroy insisted he was never given the opportunity to gain proficiency, as he had yet to be assigned to the necessary tasks. However, Pomeroy’s supervisor testified that he merely cautioned Pomeroy, suggesting that switching positions before gaining proficiency would negatively affect Pomeroy’s ability to qualify for a pay increase.
Faced with what he interpreted as an untenable situation, Pomeroy looked for other work and received a conditional offer of employment. Pomeroy then tendered his resignation to Fusion. However, because he did not pass the requisite physical exam, the conditional offer of employment was withdrawn and Pomeroy attempted to rescind his resignation. Fusion refused and Pomeroy was unemployed.
The Department of Employment and Economic Development (“DEED”) initially determined that Pomeroy was not eligible for unemployment compensation benefits, finding that he voluntarily quit without a good reason caused by his employer. Pomeroy appealed, and the ULJ reversed this determination, finding that Fusion caused Pomeroy to voluntarily quit for a good reason. Fusion appealed to the Senior Unemployment Review Judge (“SURJ”), who reversed the ULJ and found that Pomeroy quit for personal reasons and, therefore, was disqualified from receiving unemployment benefits. Pomeroy now brings this certiorari appeal challenging the SURJ’s decision.
certiorari appeal, this court reviews the decision of the SURJ. Tuff v.
Knitcraft Corp., 526 N.W.2d 50, 51 (
I. Disqualification for Voluntary Termination of Employment
According to the
statute, a good reason caused by the employer is a reason “(1) that is directly
related to the employment and for which the employer is responsible; (2) that
is adverse to the worker; and (3) that would compel an average, reasonable
worker to quit and become unemployed rather than remaining in the
applicant was subjected to adverse working conditions by the employer, the
applicant must first complain and allow the employer a reasonable opportunity
to correct the adverse working conditions before such conditions may be
considered good reason to quit caused by the employer.
several cases have addressed the situation in which the employer increased work
responsibility. For example, in Zepp v. Arthur Treacher Fish & Chips,
Inc., the applicant voluntarily quit his position when the employer more
than doubled his workload over two years of employment. 272 N.W.2d 262, 263 (
“where the employee is simply frustrated or dissatisfied with his working
conditions” do not constitute a good reason caused by the employer. Portz
v. Pipestone Skelgas, 397 N.W.2d 12, 14 (
The statute provides that
the analysis is conducted on the specific facts of each case. Minn. Stat. § 268.095, subd. 3(b) (2004). Pomeroy advocates application of a heightened
standard: whether the change in working conditions would compel the average,
reasonable 56-year-old Fusion employee – i.e., Pomeroy – to quit and become
unemployed. This would remove the
objective-reasonableness requirement from the statute and supplant it with a
subjective standard. However, this is
not the law. “The standard for
determining good cause is that standard of reasonableness as applied to the
average man or woman, and not to the supersensitive.” Erb v.
Comm’r of Econ. Sec., 601 N.W.2d 716, 718 (Minn. App. 1999) (quotation
omitted); see also State v. Harris, 590 N.W.2d 90, 98 n.1 (
In addition, there is no evidence that Pomeroy experienced physical or mental ailments because of changes in the assembly line speed, or that his superiors criticized his work. The entire assembly-line team was required to meet the new time requirements; it did not fall on the shoulders of any single employee. Although Pomeroy claims his age was a significant consideration, there is substantial evidence that age was not a significant factor in determining ability to do the work in question, and that objectively viewed, the work conditions would not compel a reasonable employee to quit. Rather, there is evidence that Pomeroy voluntarily quit for personal reasons: he was unhappy with the work situation and decided another job was more attractive. The SURJ did not err in concluding that Pomeroy quit without good cause attributable to Fusion.
II. Motion to Strike
moved to strike a portion of DEED’s brief, arguing that it refers to a document
that is not in the record. While
conducting a de novo hearing on appeal, the SURJ may not consider any evidence
outside the record established at the evidentiary hearing before the ULJ.
Pomeroy moved to
strike footnote three on page seven of DEED’s brief, as well as the sentence
that precedes the footnote. The document
referred to in the footnote is a letter from Fusion’s human-resources manager
to the SURJ, seeking review and reversal of the ULJ’s decision. Any consideration of that document was
improper for two reasons. First, Pomeroy
lacked an opportunity to respond to the assertions in the letter, as he was
never provided with a copy. Second, the
letter attempts to introduce new facts into the record, which the clear
language of the statute prohibits.
Therefore, we grant Pomeroy’s motion to strike this material, as this court
will generally “strike documents in a brief that are not part of the appellate
record.” State v. Dalbec, 594 N.W.2d 530, 533 (
Pomeroy urges this court to find that the presence of this letter in the record
constitutes a violation of his right to procedural due process and requires
remand for a further evidentiary hearing where Pomeroy can respond to the
factual assertions made in the letter.
In the criminal context, when an individual suffers a deprivation of a
constitutional right as a result of an evidentiary ruling, the state must show
that the error was “harmless beyond a reasonable doubt.” State
Affirmed; motion granted.
Effective August 1, 2004, the statutory title of the individual conducting
review proceedings under Minn. Stat. § 268.105, subd. 2 (2004), was changed to
“senior unemployment review judge.” Compare
Our analysis is not affected by the fact that Pomeroy attempted to rescind his
notice of quit. As the statute clearly
states, “An employee who seeks to withdraw a previously submitted notice of
quitting shall be considered to have quit the employment if the employer does
not agree that the notice may be withdrawn.”
 Pomeroy interprets Zepp as holding that the applicant’s age (57 years) was determinative; yet, it was the doubling of the workload over two years that rendered the employer’s demands unreasonable. Zepp, 272 N.W.2d at 263.