This opinion will be unpublished and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

C2-96-1553

Jody L. Partyka,

Relator,

vs.

Denny's Restaurant Blaine Loc,

Respondent,

Commissioner of Economic Security,

Respondent.

Filed February 25, 1997

Remanded

Peterson, Judge

Department of Economic Security

File No. 3705UC96

Gregg M. Corwin, Nancy Ossenfort Booth, Gregg M. Corwin & Associates, 508 Parkdale Plaza Building, 1660 South Highway 100, St. Louis Park, MN 55416 (for Relator)

Denny's Restaurant, c/o The Gibbens Co. Inc., P.O. Box 3930, Des Moines, IA 50322

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 Willis, Presiding Judge, Parker, Judge, and Peterson, Judge.

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

PETERSON, Judge

Jody Partyka argues the Commissioner of Economic Security erred in determining she was disqualified from receiving reemployment insurance benefits because she voluntarily quit her job without good cause attributable to her employer. We remand for additional findings regarding the terms of Partyka's employment agreement.

FACTS

Relator Jody Partyka sought reemployment insurance benefits after she voluntarily quit her job at respondent Denny's Restaurant Blaine Loc.

At the hearing, Partyka testified as follows. Partyka worked for the Denny's corporation in Texas and had been promoted to general manager of a corporate-owned restaurant. General managers usually worked only day hours. When Partyka moved to Minnesota in 1993, she took a job as a general manager of a Denny's restaurant operated by a franchisee. A district leader from the Denny's corporation asked Partyka to return to work for the corporation as the manager of a corporate-owned restaurant and promised to promote her to general manager when a position became available. Managers worked irregular schedules that were not limited to day hours.

Partyka accepted Denny's offer in September 1993. But although several general manager positions soon became available, Denny's failed to promote Partyka. Partyka continued working as a manager but continued to remind Denny's of its promise to promote her. Partyka returned to work from maternity leave in January 1996. Due to her irregular work schedule, Partyka was unable to find affordable daycare for her infant. Partyka asked for regular or day hours and reminded Denny's of its promise to promote her. When Denny's refused to promote Partyka or to guarantee her regular or day hours, she quit.

Carol Johannsen, a Denny's partner, testified that when she started work at Denny's in late 1995, Partyka stated during their first meeting that a Denny's district leader had hired her with the promise to promote her to general manager. Johannsen said she spoke with the district leader who denied that he ever had promised Partyka a promotion.

The Commissioner's representative concluded that Partyka voluntarily quit her job because her schedule made it difficult to find affordable daycare and that Partyka therefore quit her job without good cause attributable to the employer. The representative said the evidence did not support a finding that any assurances Partyka allegedly received from Denny's about the promotion "constituted a legally enforceable contract" or that Denny's failure to promote her "constituted a substantial breach of the employment agreement." The representative also concluded that Denny's allegedly broke its promise to promote Partyka over two years before she quit and that, consequently, there was no direct causal connection between the failure to promote Partyka and her decision to quit.

D E C I S I O N

An employee who voluntarily quits a job without "good cause attributable to the employer" is disqualified from receiving reemployment insurance benefits. Minn. Stat. § 268.09, subd. 1(a) (Supp. 1995). Once the employer has shown the employee quit voluntarily, the employee must prove by a preponderance of the evidence that she had good cause to quit. Marz v. Department of Employment Servs., 256 N.W.2d 287, 289 (Minn. 1977).

The Commissioner's conclusions of law do not bind this court but we

review the commissioner's fact findings in the light most favorable to the decision below and will not disturb them if there is evidence reasonably tending to sustain those findings.

Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989). Whether an employee had good cause to quit is a question of law. Zepp v. Arthur Treacher Fish & Chips, Inc., 272 N.W.2d 262, 263 (Minn. 1978).

Partyka argues the promise to promote her to general manager was part of her employment agreement with Denny's. Partyka claims that the failure to promote her constituted a substantial breach of the employment agreement and that this breach gave her good cause to quit. "An employer's breach of an employment contract constitutes good cause for the employee to quit." Krantz v. Loxtercamp Transp., Inc., 410 N.W.2d 24, 26 (Minn. App. 1987). The employment contract does not have to be a formal or written agreement. See id. at 27 (breach of employer's oral promise at hiring that employee would not have to work weekends, or a similar period between four-to five-day hauls, constituted good cause to quit); Baker v. Fanny Farmer Candy Shops #154, 394 N.W.2d 564, 566 (Minn. App. 1986) (when employee was hired with understanding that she would not work nights, requiring her to work nights breached employment agreement).

Here, although the Commissioner's representative determined that Denny's assurances to Partyka about her promotion did not constitute a legally enforceable contract, the representative did not determine whether Partyka's employment agreement with Denny's included a promise to promote her. If the employment agreement between Partyka and Denny's included a promise to promote her when a general manager position became available, there is evidence in the record suggesting the employment agreement was breached. Accordingly, we remand for the Commissioner's representative to determine whether Partyka's employment agreement with Denny's included a promise to promote her to general manager when a position became available.

Denny's argues that any breach of the promise to promote Partyka occurred in the fall of 1993 and that Partyka therefore has waived her right to claim the breach constituted good cause attributable to the employer. But

[t]he Minnesota Supreme Court has not adopted the doctrine of waiver of good cause, and we decline to do so.

Baker, 394 N.W.2d at 567.

Denny's finally argues that Partyka quit because of daycare scheduling problems, not because of a breach of the employment agreement, and that daycare scheduling problems are not good cause attributable to the employer. See Kampa v. Normandale Tennis Club, 393 N.W.2d 195, 197 (Minn. App. 1986) (record supported Commissioner's decision that relator quit her job because of child care scheduling problems, not sexual harassment; child care scheduling problems did not constitute good cause attributable to employer), review denied (Minn. Nov. 17, 1986). But in Kampa, the relator's child care scheduling problems were unrelated to her sexual harassment claim. Id. at 196-97. Here, Partyka claims that her daycare scheduling problems would not have existed but for the breach of the agreement to promote her. Because Partyka's daycare scheduling problems are attributable to the alleged breach of the employment agreement, this case is distinguishable from Kampa.

Remanded.