This opinion will be unpublished and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
Richard E. Misel, Jr.,
Department of Employment
and Economic Development,
Filed September 19,
Department of Employment and Economic Development
File No. 7871 05
Richard E. Misel, Jr., 2734 18th Street Northwest, Baudette, MN 56623-8889 (pro se relator)
Lakeside Protection, Inc., 4113 Wildwood Drive Northwest,
Williams, MN 56686 (respondent)
Linda A. Holmes, Lee B.
Nelson, 1st National Bank Building, 332 Minnesota Street Suite E-200, St. Paul,
MN 55101-1351 (for respondent Department of Employment and Economic Development)
Considered and decided by Ross, Presiding Judge;
Shumaker, Judge; and Wright, Judge.
this certiorari appeal, relator Richard Misel challenges the unemployment law
judge’s decision that he quit without good reason caused by his employer and
that he was disqualified from receiving unemployment benefits. Because the record contains substantial
support for the unemployment law judge’s findings of fact and the conclusions
of law are not erroneous, we affirm.
Richard Misel quit his full-time job as a security officer for
respondent Lakeside Protection, Inc., on April 24, 2005. His letter of resignation gave economic and
other circumstances as his reasons for quitting. He cited the increasingly high cost of
transportation, stated that he had no money to repair his or his wife’s
vehicle, and complained that they both had to use his father’s truck for
transportation. Misel applied to the
Department of Employment and Economic Development for unemployment
benefits. The department adjudicator
determined that Misel had quit his job without good reason caused by Lakeside. On
appeal, the unemployment law judge (ULJ) reached the same conclusion and later affirmed
the decision after reconsideration.
Misel challenged that decision through a writ of certiorari, but when
the department found that the hearing could not be fully transcribed, this
court remanded the case for a new hearing.
The ULJ again determined that Misel quit without good reason caused by Lakeside and that he was disqualified from receiving
unemployment benefits. The ULJ then
affirmed on reconsideration. The present
certiorari appeal follows.
Misel challenges the ULJ’s determination that he quit
employment without good cause and is therefore disqualified from receiving
unemployment benefits. This court may
reverse or modify the ULJ’s decision if Misel’s substantial rights have been
prejudiced because the findings, inferences, conclusion, or decision are
affected by legal error or are unsupported by substantial evidence. Minn.
Stat. § 268.105, subd. 7(d)(5) (Supp. 2005). Whether an employee has good cause to quit is
a question of law reviewed de novo. Peppi v. Phyllis Wheatley Cmty. Ctr., 614
N.W.2d 750, 752 (Minn.
App. 2000). But we defer to the ULJ’s
credibility determinations and the ULJ’s weighing of evidence. See
Jenson v. Dep’t. of Econ. Sec., 617 N.W.2d 627, 631 (Minn. App. 2000), review denied (Minn. Dec. 20, 2000) (relying on credibility
determinations); Whitehead v. Moonlight
Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn.
App. 1995) (refusing to reweigh conflicting evidence). We will not disturb the ULJ’s fact findings
that are supported by the evidence. Schmidgall v. FilmTec Corp., 644 N.W.2d
801, 804 (Minn.
2002) (noting narrow review standard applied to findings of DEED’s predecessor
agency, the Department of Economic Security).
An applicant who quits employment is disqualified from
receiving unemployment benefits unless the applicant falls within a statutory
exception. Minn. Stat. § 268.095,
subd. 1 (Supp. 2005). One exception
occurs when the applicant quits because of a “good reason caused by the
§ 268.095, subds. 1(1) (Supp. 2005), 3 (2004). A good reason caused by the employer is one
that is (1) directly related to the employment and for which the employer was
responsible; (2) adverse to the worker; and (3) would compel an average,
reasonable worker to quit and become unemployed rather than remaining in the
employment. Id., subd. 3(a). If the applicant was subjected to adverse
working conditions, he must complain to the employer and give the employer a
reasonable opportunity to correct the adverse condition before quitting. Id.,
We first address whether Lakeside’s
failure to follow the terms of its policy manual gave Misel good reason to
quit. Misel contends that Lakeside failed to follow the terms of employment set out
in a policy manual effective June 1, 2003, which provides for employee performance
reviews every six months, with raises, if any, based on the reviews.
According to Misel, he received only one review and one raise
under the policy and Lakeside otherwise did
not follow it. This court has held that
an employer’s breach of its unconditioned promise to raise an employee’s wages
provides good cause to resign. Hayes
v. K-Mart Corp., 665 N.W.2d
550, 553 (Minn. App. 2003), review denied (Minn.
Sept. 24, 2003). But the ULJ found that Lakeside did not promise Misel any raises because any
raise would be conditioned on other factors under the policy. We agree.
The ULJ found that in early 2003—four years after Misel began
work at Lakeside—Lakeside issued a new policy
indicating that it would conduct a performance review every six months and that
employee raises would depend on the review.
After a short time, however, Lakeside’s
owner determined that the policy was infeasible and its supervisors stopped
following the schedule. The policy sets
out a point system for assessing job performance and provides that certain
points trigger specified hourly wage increases.
But it also provides for no wage increase in the case of low-performance
points. Additionally, it limits wage
increases for years in which the company receives no increase in payments from
its sole security client; in that event, Lakeside
employees would receive raises only “on a percentage basis.” Unlike the employee in Hayes, Misel was never unconditionally promised that he would
receive any raises.
The ULJ made two additional findings that undermine Misel’s
contention that Lakeside failed to keep its alleged
wage-increase promises to him. The ULJ found
that in 2002 and 2003, Lakeside’s sole security client did not increase its payments to Lakeside. The ULJ also determined that Lakeside had given Misel three significant raises during
the relevant period. In January 2003, Lakeside raised Misel’s wages from $8.70 per hour to
$9.00. In August 2003, Lakeside
raised Misel’s wages to $9.25. And in
August 2004, Lakeside raised Misel’s wages by
$1.00, to $10.25 per hour. These
findings, which are fully supported in the record, establish that Misel
received wage increases in excess of the increases the policy might have
required for this period. Even assuming
retroactive application of the policy, Misel received a 30-cent raise in
January 2003, while the policy would afford no specific increase because
Lakeside’s security client had not increased its payments to Lakeside. Lakeside gave
Misel a 25-cent increase in August 2003, while the policy again directed no
specific increase. Misel received no
increase six months later, but again, the policy directed no specific wage
increase for the period for the same reason.
Finally, Misel’s $1.00 raise in August 2003 exceeds any specific wage
increase that he asserts was promised by Lakeside’s policy, even speculating
that he would have achieved a perfect 100-point evaluation during his hypothetical
six-month reviews for that period.
Lakeside did not promise Misel a wage increase every six
months, and Lakeside gave Misel wage increases
during the challenged period. The ULJ’s
decision that the alleged wage-promise breach did not provide Misel a good
reason to quit caused by Lakeside is supported
by substantial evidence and is not erroneous as a matter of law.
We next address Misel’s claim that a new schedule gave him
good reason to quit. An employee who is
subject to adverse conditions by an employer must complain and give the
employer a reasonable opportunity to correct the conditions before they may be
considered good reason caused by the employer to quit. Minn. Stat. § 268.095, subd. 3(c). The ULJ found that Lakeside
asked the security officers, including Misel, whether they would be willing to experiment
with a new schedule, and that Misel consented.
Misel challenges these findings, claiming that he had voiced
his objections to the proposed schedule before he eventually consented. He contends also that Lakeside
knew that the schedule would create difficulties for him. But the ULJ did not credit this testimony,
and the findings are supported by substantial evidence, which we will not
reweigh. The ULJ’s supported finding that
Misel did not complain about the schedule to Lakeside
defeats Misel’s contention that the change in schedule gave him good reason to
Misel raises several additional issues, which we have
reviewed. None provides a basis for
reversal. We therefore affirm the ULJ’s