This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-367

 

Brian K. Foltz,
Relator,

vs.

Honeywell International, Inc.,
Respondent,

Department of Employment and Economic Development,
Respondent.

 

Filed January 16, 2007

Affirmed

Wright, Judge

 

Department of Employment and Economic Development

File No. 17016 05

 

 

Brian K. Foltz, 11114 Hampshire Court East, Champlin, MN  55316 (pro se relator)

 

Honeywell International, Inc., 7550 Meridian Circle, Maple Grove, MN  55369 (respondent)

 

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

 

 

            Considered and decided by Willis, Presiding Judge; Peterson, Judge; and Wright, Judge.

U N P U B L I S H E D  O P I N I O N

 

WRIGHT, Judge

 

Relator challenges the unemployment law judge’s decision affirming on reconsideration that relator quit his employment without a good reason caused by the employer.  Relator argues that the unemployment law judge’s telephone hearing was unfair because relator did not have an adequate opportunity to present his case, and he raises other issues for the first time in this certiorari appeal.  We affirm.

FACTS

Relator Brian Foltz was an applications engineer for Respondent Honeywell International, Inc.’s Silent Knight division from October 1985 through October 24, 2005. In May 2005, a customer complained that Foltz was intoxicated.  Honeywell’s employment policy prohibits an employee from reporting to work under the influence of alcohol.  Foltz entered a last-chance agreement with Honeywell.  As a condition of reinstatement, Foltz agreed to comply with Honeywell’s alcohol policies, participate in counseling and treatment through the Employee Assistance Program (EAP), comply with all aftercare recommendations, authorize the EAP to submit Foltz’s monthly progress reports for review, and undergo unannounced alcohol tests for 24 months.  Foltz also agreed that refusal to submit to an alcohol test or testing positive for alcohol at work would “result in disciplinary action up to and including termination.”   

On October 24, 2005, at approximately 10:00 a.m., Honeywell managers Peter Howard and Jim Small observed that Foltz appeared to be under the influence of alcohol.  They also noticed that Foltz smelled of alcohol.  Howard and Small directed Foltz to take an alcohol test.  Foltz refused and submitted a handwritten letter of resignation dated October 24, 2005.  Shortly thereafter, Foltz applied for unemployment benefits, and his application was denied. 

            An unemployment law judge (ULJ) heard Foltz’s appeal of the denial of unemployment benefits by telephone conference and determined that Foltz is disqualified from receiving unemployment benefits because he quit without a good reason caused by his employer.  The ULJ affirmed this decision on Foltz’s motion for reconsideration.  This certiorari appeal followed. 

D E C I S I O N

We review the decision of a ULJ to determine whether the factual findings are supported by substantial evidence in the record or the decision is affected by legal error.  Minn. Stat. § 268.105, subd. 7(d) (2006).  Whether an employee quit without a good reason 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).  But that conclusion “must be based on findings that have the requisite evidentiary support.”  Nichols v. Reliant Eng’g & Mfg., Inc., 720 N.W.2d 590, 594 (Minn. App. 2006).  We review the ULJ’s factual findings in the light most favorable to the decision.  Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996).  We defer to the credibility determinations made by the ULJ.  Skarhus v. Davanni’s Inc., 721 N.W.2d 340, 344 (Minn. App. 2006).

            An employee who voluntarily quits employment is disqualified from receiving unemployment benefits unless the reason for quitting is a good reason caused by the employer.  Minn. Stat. § 268.095, subd. 1(1) (Supp. 2005). 

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;

            (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 employment. 

 

Minn. Stat. § 268.095, subd. 3(a) (2004).  “Notification of discharge in the future . . . shall not be considered a good reason caused by the employer for quitting.”  Id., subd. 3(e) (2004); see also Ramirez v. Metro Waste Control Comm’n,340 N.W.2d 355, 357-58 (Minn. App. 1983) (holding that employee who resigns rather than facing termination voluntarily quits without good reason caused by employer).

The ULJ determined that Foltz quit his employment to keep his employment record clear and because he anticipated being discharged.  The ULJ found that Foltz refused to take the alcohol test because he would fail.  Before tendering his resignation, Foltz inquired whether he would qualify for unemployment benefits if he resigned.  In response, Honeywell employees advised Foltz that eligibility for unemployment benefits would be determined by the state.  There is ample evidentiary support for the ULJ’s findings that Foltz quit his employment to avoid the negative consequences of testing positive for alcohol at work.  Because quitting to avoid future discharge is not a good reason caused by the employer, and being requested to take an alcohol test under the circumstances presented here would not compel an average, reasonable worker to quit, the ULJ’s determination that Foltz quit without a good reason caused by the employer is sound.

 Foltz argues that the ULJ’s hearing was unfair because he was not given an adequate opportunity to present his case.  The ULJ “shall exercise control over the hearing procedure in a manner that protects the parties’ rights to a fair hearing” and “shall ensure that relevant facts are clearly and fully developed.”  Minn. R. 3310.2921 (2005).  The ULJ should also “assist unrepresented parties in the presentation of evidence.” Id. But the ULJ “may exclude any evidence which is irrelevant, immaterial, unreliable, or unduly repetitious.”  Minn. R. 3310.2292 (2005). 

The ULJ gave Foltz several opportunities to participate fully in the telephone hearing.  The ULJ first inquired whether Foltz had any questions regarding the procedure of the hearing, to which Foltz responded “No, Your Honor.”  At the start of the hearing, and on several occasions thereafter, the ULJ advised Foltz that he had the right to cross-examine witnesses.  Foltz responded that he had no questions for Honeywell’s human-resources generalist Sandy Robinson, Howard, or Small.  At the conclusion of Foltz’s testimony, the ULJ inquired as follows:

Q: Okay.  Anything else that you wish to add, Mr. Foltz?

A: Other than I gave it my all and I really miss the place.

               . . . .

 

Q: You have nothing further to add[?]

A: I do not.

 

Following Robinson’s cross-examination of Foltz, the ULJ gave Foltz another opportunity to question Robinson and permitted Foltz to give a closing statement.  The record does not support Foltz’s argument that the hearing was unfair because he was not given an adequate opportunity to present his case.

Foltz raises additional arguments for the first time on appeal, namely, that the ULJ did not consider the events leading to Foltz’s resignation and that Honeywell had not given Foltz resources to voice his concerns.  Foltz did not assert these reasons for quitting during the hearing before the ULJ or in his unemployment benefits application.  Thus, these arguments are not properly before us.  Thiele v. Stich,425 N.W.2d 580, 582 (Minn. 1988).

The ULJ’s decision that Foltz quit his employment without good reason caused by the employer is supported by substantial evidence and is unaffected by legal error.  Accordingly, the ULJ did not err in determining that Foltz is disqualified from receiving unemployment benefits.

            Affirmed.