This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-96-941

Scott Kendall,

Respondent,

vs.

Mellas Electric Inc.,

Relator,

Commissioner of Economic Security,

Respondent.

Filed December 10, 1996

Affirmed

Norton, Judge

Department of Economic Security

Agency File No. 907 UC 96

Scott J. Kendall, 230 Oslin Road, Mora, MN 55051 (Respondent Pro Se)

John P. Haberman, Law Offices of Martin L. Garden, 2520 Centre Village, 431 South Seventh Street, Minneapolis, MN 55415 (for Relator)

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

Considered and decided by Norton, Presiding Judge, Schumacher, Judge, and Forsberg, Judge.[*]

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

NORTON, Judge

Relator contends that the Commissioner's representative's decision that an employee was involuntarily discharged from employment is erroneous, because he voluntarily quit. The record supports the Commissioner's representative's decision that the employee was involuntarily terminated. We affirm.

FACTS

Relator Mellas Electric, Inc., is an electrical contractor. Respondent Scott Kendall worked full time as an apprentice electrician for Mellas Electric under the supervision of Robert Mellas and his son, Andrew Mellas. At the end of work on January 10, 1996, Andrew Mellas was talking to a contractor when he thought he saw Kendall moving Mellas's belongings from a van to another company vehicle. Andrew Mellas told Kendall to put the things back into the van, because he was ready to leave. Kendall reacted angrily, shouting, "Well come on then, let's go." Kendall reported that Andrew Mellas then stated: "I think you better take some time off to change your attitude."

On January 11, 1996, Kendall filed a claim for reemployment insurance benefits, stating on his application that he was claiming benefits because his employer had

told [me] to take a few days off 'til my attitude changes. So I take that I was let go or fired on 1-10-96. And that's why I'm filing for unemployment.

Kendall did not return to work January 11 or 12. Kendall asked his coworker, Mike Lucht, to ask Robert Mellas to call him by January 14, 1996. Robert Mellas received the message on January 11, but he refused to call Kendall. Kendall did not return to work. On Saturday, January 13, Mellas Electric received a copy of Kendall's claim from the Department of Economic Security. Mellas Electric protested the claim, stating that it had not fired Kendall and "[didn't] know why he thought he was fired."

A claims adjudicator determined that Kendall was not eligible for benefits because he had "voluntarily quit * * * employment rather than attempt to correct a problem he was having with his supervisor."

Kendall appealed the claims adjudicator's decision to a department reemployment insurance judge. At the hearing, the judge received evidence and testimony from Kendall, Robert Mellas, Kathy Mellas, and Mike Lucht. Andrew Mellas provided an unsworn signed statement stating that he had told Kendall: "You may want to consider taking some time off to adjust your attitude." Kendall testified that he had been anxious to leave at the end of work on January 10, to attend a court-ordered meeting related to the loss of his driving privileges. He was worried he would not have enough time to get to the meeting because it was snowing heavily. Kendall testified that Mellas Electric knew of these court-ordered meetings and accommodated his needs in this matter. That afternoon when Kendall saw Andrew Mellas talking to the contractor, he started to get into the company van with Lucht to drive back to Mellas Electric's shop. When Andrew told him to get in the other vehicle, Kendall shouted, "Come on, let's get going then." Kendall explained that when Andrew told him to "take a few days off and change your attitude," he did not know what a few days meant. He asked Lucht to tell Robert Mellas to call him if he wanted him to come back to work. He filed a claim for benefits the next day "in case I didn't get that call * * *."

Robert Mellas testified that he did not believe Andrew Mellas had fired Kendall, but stated that it "could have been a two-day suspension." Admitting that he had received Kendall's message, Robert Mellas explained:

Mike evidently had a message from [Kendall] and passed it on to me. [Kendall] wanted his check and he wanted two days-vacation and if I wanted to talk to him, I could call him Sunday night. Now I'm not looking for a job here and I don't need a job. [Kendall's] the one that needed a job. I think that he would probably make the call if he felt he was discharged for some reason.

The reemployment insurance judge affirmed the claims adjudicator's denial of benefits. Kendall appealed to a Commissioner's representative, who issued findings of fact and a memorandum reversing the reemployment insurance judge's decision. The Commissioner's representative found that Mellas Electric had "discharged [Kendall], when the employer suspended [Kendall] for a few days and chose not to call him on Sunday, January 14, to tell him when to return to work." The Commissioner's representative determined that Mellas Electric discharged Kendall from employment on January 14 for reasons other than misconduct and that Mellas Electric failed to demonstrate that Kendall was disqualified from receiving benefits.

D E C I S I O N

An individual will be disqualified from receiving reemployment insurance benefits if he or she "voluntarily and without good cause attributable to the employer discontinued employment with such employer" or if "[t]he individual was discharged for misconduct." Minn. Stat. § 268.09, subd. 1(a)(b) (1994). Whether an employee was voluntarily or involuntarily terminated from employment is a question of fact for the Commissioner's representative to determine. Shanahan v. District Memorial Hosp., 495 N.W.2d 894, 896 (Minn. App. 1993). This court must view the Commissioner's findings of fact in the light most favorable to the decision and will not disturb those findings if the record contains evidence reasonably tending to sustain them. White v. Metropolitan Med. Ctr., 332 N.W.2d 25, 26 (Minn. 1983). When the record contains disputed evidence, this court will defer to the Commissioner's representative's determination of credibility even when the Commissioner's representative reversed the referee's decision. Cary v. Custom Coach, 349 N.W.2d 331, 331-32 (Minn. App. 1984).

Mellas Electric argues that the record does not support the finding that Kendall was involuntarily discharged from work, because he voluntarily quit when he failed to return to work. When an employer disputes an employee's eligibility for reemployment insurance benefits, "the employer has the burden of proving that the worker terminated the employment voluntarily." Brown v. Port of Sunnyside Club, Inc., 304 N.W.2d 877, 879 (Minn. 1981). The Commissioner's representative determined that Mellas Electric had not met this burden. We agree.

Mellas Electric contends that Kendall's belief that he had been terminated was unreasonable and therefore must be construed to be a voluntary quit. The Commissioner's representative determined that Mellas Electric terminated Kendall when Robert Mellas failed to call him on January 14. Here, the Commissioner's representative implicitly found that Kendall reasonably believed he had been terminated on January 10; Robert Mellas's belief that Kendall was not terminated is not material. County Mkt. v. Dahlen, 396 N.W.2d 81, 83 (Minn. App. 1986) (whether employer intended to discharge employee "is immaterial; what is important is the employee's perception of the situation and his or her response thereto"). Employees do not voluntarily terminate employment when they fail to return to work due to a reasonable belief that the employer has discharged them. Midland Elec., Inc. v. Johnson, 372 N.W.2d 810, 812 (Minn. App. 1985).

The supreme court has held that an employee did not quit, but was involuntarily separated from employment, where the employee had an argument with the supervisor, walked away, and was told to "keep on walking." Brown, 304 N.W.2d at 879 (reversing Commissioner's decision that employee was disqualified from receipt of benefits). Reversing the Commissioner in another case, this court held that an employee was involuntarily terminated from employment when he never returned to work after his employer informed him that he was not needed for work on Tuesday and Wednesday and "I don't know about Thursday or the rest of the week." Grotjohn v. Cornbelt Foods, Inc., 370 N.W.2d 48, 49-50 (Minn. App. 1985). These cases support the Commissioner's representative's decision that Kendall was involuntarily terminated.

Likewise, the record contained evidence showing that Mellas Electric had involuntarily suspended Kendall, and that Kendall did not know when or if it wanted him to return. The employer's failure to notify Kendall when his suspension was over and refusal to call him also supports the Commissioner's representative's finding that the employer terminated Kendall's employment on January 14.

Mellas Electric argues that the Commissioner's representative should not have considered evidence of Robert Mellas's failure to call Kendall by Sunday, January 14. It claims that the Commissioner's representative should look only at evidence prior to the time Kendall filed his claim for benefits on January 11. The Commissioner's representative explained in his memorandum attached to the decision granting benefits:

The fact that the claimant filed an initial claim for reemployment insurance benefits on January 11th is of no particular consequence. The claimant had been effectively suspended.

The Commissioner's appellate brief explains that workers frequently file claims when they have been suspended from work because they are uncertain of their employment status; they file their claims knowing only that they are not working. Filing a claim for benefits is not misconduct, Hogenson v. Brian Knox Builders, 340 N.W.2d 360, 364 (Minn. App. 1983), nor should it be presumed as a voluntary quit. The Commissioner's representative did not err in considering events that occurred after Kendall filed for benefits.

Finally, Mellas Electric claims that a statement in its protest letter to the department constituted an offer for Kendall to return to work and disqualified him from receiving benefits. We disagree. The record contains no evidence that Mellas Electric relayed such an offer to Kendall.

Affirmed.

[ ]* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 2.