This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-96-1215

William P. Jones,

Relator,

vs.

Century Tool, Inc.,

Respondent,

Commissioner of Economic Security,

Respondent.

Filed December 24, 1996

Reversed

Forsberg, Judge

[*]

Department of Economic Security

File No. 448 UC 96

Earle F. Kyle, IV, Schatz Paquin Lockridge Grindal & Holstein P.L.L.P., 2200 Washington Square, 100 Washington Avenue South, Minneapolis, MN 55401 (for Relator)

Mary M.L. O'Brien, Meagher & Geer, 4200 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402 (for Respondent Century Tool, Inc.)

Kent E. Todd, Minnesota Department of Economic Security, 390 North Robert Street, St. Paul, MN 55101 (for Respondent Commissioner of Economic Security)

Considered and decided by Parker, Presiding Judge, Kalitowski, Judge, and Forsberg, Judge.

U N P U B L I S H E D O P I N I O N

FORSBERG, Judge

Relator challenges the Commissioner's representative's determination that he was disqualified from receiving reemployment insurance benefits because he was discharged from employment for misconduct. We reverse.

FACTS

Relator William P. Jones worked for respondent Century Tool, Inc. as a machine operator from June 1988 through December 14, 1995. Jones operated an automated CNC machine and was the only employee who knew how to operate the machine. Dars Fox, Century Tool's plant manager, testified that while Jones was on medical leave for about three weeks in 1995, the company's production fell because the CNC machine was idle. As a result, Century Tool decided to train another employee to operate the machine.

When Jones returned to work from medical leave on December 6, 1995, a foreman, David Olson, told Jones that he would be reassigned to a manual machine while another employee was trained to use the CNC machine. Fox testified that Olson explained to Jones that when the training was completed in about six weeks, Century Tool would conduct an evaluation to determine who would be assigned permanently to operate the machine. Jones testified that operating the manual machine, to which he was reassigned, was an entry-level position.

Because he viewed the reassignment as a demotion, Jones left work on December 6, 1995, a Monday, and did not report to work during the rest of the week. On December 6, 11, and 13, in an effort to resolve his employment status, Jones called and left messages for Fox, but Fox did not return Jones's calls. On December 14, 1995, Fox sent Jones a letter stating:

A week has now passed and you have not reported for work or called in regarding you[r] availability for work. Therefore, we have to conclude that you have voluntarily terminated your employment with Century Tool effective immediately.

Jones did not respond to the letter, and his employment with Century Tool ended.

D E C I S I O N

Whether an employee quit or was discharged is a question of fact. Midland Elec., Inc. v. Johnson, 372 N.W.2d 810, 812 (Minn. App. 1985). This court will affirm the Commissioner's representative's "factual findings if there is evidence in the record which reasonably sustains those findings." Id. "Voluntary quitting" is defined as discontinuing employment because the employee no longer wants to remain in the employment relationship with the employer from whom he has separated. Bergseth v. Zinsmaster Baking Co., 252 Minn. 63, 65-66, 89 N.W.2d 172, 174 (1958); see also Goodwin v. BPS Guard Servs., Inc., 524 N.W.2d 28, 29 (Minn. App. 1994) (applying Bergseth definition). The employer has the burden of proving that an employer voluntarily quit his employment. Marz v. Department of Employment Servs., 256 N.W.2d 287, 289 (Minn. 1977).

The evidence supports the Commissioner's representative's finding that the December 14 letter initiated Jones's separation from employment. Jones's phone calls to Fox on December 6, 11, and 13 to resolve his employment status indicate that Jones wanted to remain employed by Century Tool. The record does not show that Jones would not have made further attempts to contact Fox if he had not received the letter. The letter in effect stated that Jones was no longer employed by Century Tool. Under these circumstances, the Commissioner's representative properly determined that Jones was discharged from employment. See Armar Corp. v. Malinski, 362 N.W.2d 10, 12 (Minn. App. 1985) (employee discharged when employer initially rejected her resignation letter and then accepted it after employee was unable to resolve problems with coworker).

An individual who is discharged from employment for misconduct is disqualified from receiving reemployment insurance benefits. Minn. Stat. § 268.09, subd. 1(b) (Supp. 1995). Whether an employee committed misconduct is a mixed question of fact and law. Colburn v. Pine Portage Madden Bros., 346 N.W.2d 159, 161 (Minn. 1984). This court will affirm the Commissioner's representative's factual findings "if there is evidence reasonably tending to sustain those findings," but the ultimate issue of disqualification is a question of law subject to de novo review. Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).

The employer has the burden of proving misconduct. Lotspeich v. Alliance Health Servs., 536 N.W.2d 632, 633 (Minn. App. 1995). The definition of misconduct

"is limited to conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer."

Tilseth v. Midwest Lumber Co., 295 Minn. 372, 374-75, 204 N.W.2d 644, 646 (1973) (quoting Boynton Cab Co. v. Neubeck, 296 N.W. 636, 640 (Wis. 1941)).

Century Tool decided to train another employee to operate the automated CNC machine because the company's production fell while Jones was on medical leave. When Jones returned to work from medical leave, he was reassigned to operate a manual machine, which Jones testified was an entry-level position. Century Tool does not claim that the reassignment was to a position comparable to operating the automated CNC machine. An employee is not required to accept a demotion that is not based on inadequate or unsatisfactory job performance. See Dachel v. Ortho Met, Inc., 528 N.W.2d 268, 270 (Minn. App. 1995) (employee may have good cause to quit if employer changes job to one requiring substantially less skill); Holbrook v. Minnesota Museum of Art, 405 N.W.2d 537, 538-39 (Minn. App. 1987) (substantial demotion gave employee good cause to quit), review denied (Minn. July 15, 1987).

Century Tool did not promise Jones that he would be reassigned to operate the CNC machine when the other employee's training was completed. Absent any assurance that he would be reinstated to his former position, Jones was not obligated to accept the reassignment to a manual machine. Jones declined to accept the reassignment and then left work and did not return. He did attempt, however, to contact Fox to resolve the situation, but Fox did not return his calls. Under these circumstances, Jones's failure to report to work did not constitute misconduct.

Reversed.

[ ]* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.