This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat § 480A.08, subd. 3 (1996)




Preferred Staffing, Inc.,



Karen S. Jawish,


Commissioner of Economic Security,


Filed June 9, 1998


Lansing, Judge

Department of Economic Security

Agency File No. 5862UC97

Huyen Le Phan, James F. Baldwin, Murnane, Conlin, White & Brandt, 1800 Piper Jaffray Plaza, 444 Cedar Street, St. Paul, MN 55101 (for relator)

Karen S. Jawish, 30804 Wallmark Lake Drive, Chisago City, MN 55013-9586 (pro se respondent)

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

Considered and decided by Klaphake, Presiding Judge, Lansing, Judge, and Forsberg, Judge.**

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



The commissioner's representative held that the branch manager for a temporary help service was discharged for reasons other than misconduct. The record supports the determination, both on the issue of discharge and conduct, and we affirm.


Karen Jawish worked as a branch manager for Preferred Staffing, Inc., from August 1994 to May 1997. During the last seven months of her employment, Preferred Staffing reorganized, and Jawish began having problems in her working relationship with a new supervisor. Mark Howard, president of Preferred Staffing, issued Jawish a disciplinary warning about making negative remarks to co-workers, failing to promptly respond to a page, and failing to open the office on time.

On May 27, 1997, Howard told Jawish that she was not properly performing her duties as branch manager and suggested that she accept a sales or office manager position. Jawish said she would consider it, but asked whether Howard would just release her from her noncompete agreement so she could obtain comparable work elsewhere.

Jawish and Howard met the next morning. Howard presented Jawish with a separation agreement that allowed her to solicit Preferred Staffing's customers but not its pool of temporary employees. After some discussion about the two alternative jobs, Howard withdrew the offers, saying, "Forget it. I'll lay you off." Howard signed a separation form on which he had checked the layoff box and Jawish signed the partial release from the noncompete agreement.

A reemployment insurance judge affirmed the denial of Jawish's request for benefits, finding that Jawish had been offered and refused suitable alternative employment. The commissioner's representative reversed, holding that Jawish was dismissed for reasons other than misconduct and that continued employment as a sales representative or office manager was not available to her. Preferred Staffing appeals.


A separation from employment is voluntary when an employee "no longer desires to remain in the relationship of an employee with the employer from whom he has separated." Bergseth v. Zinsmaster Baking Co., 252 Minn. 63, 66, 89 N.W.2d 172, 174 (1958). Separation is also voluntary if the employee was not discharged and continuing work was made available to the employee. Danielson Mobil, Inc. v. Johnson, 394 N.W.2d 251, 253 (Minn. App. 1986).

Whether an employee was involuntarily discharged or voluntarily quit is usually a question of fact. County Market v. Dahlen, 396 N.W.2d 81, 82 (Minn. App. 1986). The commissioner's representative's factual findings may be reversed only if there is no evidence reasonably tending to sustain them. White v. Metropolitan Medical Ctr., 332 N.W.2d 25, 26 (Minn. 1983).

Preferred Staffing maintains that the commissioner's representative erred in finding that Jawish was discharged, arguing that the record establishes she voluntarily terminated her employment. This argument overlooks, however, two undisputed facts--first, that Preferred Staffing initiated the May 27 discussion with Jawish telling her that she could not continue as branch manager and would have to be either a sales representative or office manager. Second, Preferred Staffing conceded at the hearing that Jawish had been discharged by Mark Howard. When asked whether he agreed that Jawish had been discharged, Howard said "yes." He further stated that it was his decision to discharge her. We reject Preferred Staffing's claim that Howard did not understand that "discharge" excluded quitting, because the record refutes the argument. The question to Jawish was "[d]id you quit that job or were you discharged?" Jawish responded that she had been discharged, and Howard agreed. The evidence supports the commissioner's representative's holding that Jawish was discharged.

Preferred Staffing makes two additional arguments for Jawish's disqualification from receiving reemployment benefits: that Jawish committed misconduct by not accepting the alternative position and that even if rejection of the position was not misconduct, her failure to accept either position acts as a disqualification.

The commissioner's representative found that the evidence in the record did not support the reemployment insurance judge's holding that continued employment remained available to Jawish as an office manager or sales representative. Specifically, the commissioner's representative found that Jawish

[t]estified credibly that on May 28, 1997, before she was ever given an opportunity to state her decision as to which, if either, position she had opted to select, Howard took the choice out of her hands by informing her that he did not want her to do the sales job and that if she wanted to remain an employee, she would have to take the office manager position. The claimant further testified credibly that she expressed her willingness to take the office manager position and that Howard's response was to tell her, "Forget it. I'll lay you off." The claimant's testimony in such regard was substantiated by Howard's own admissions.

In Tuff v. Knitcraft, 526 N.W.2d 50, 51-52 (Minn. 1995), the Minnesota Supreme Court reaffirmed that the commissioner's representative is free to weigh the evidence independently of the reemployment insurance judge. The commissioner's representative's findings have support in the record, and consequently we are required to accept the commissioner's determinations on these issues. See Carey v. Custom Coach, Inc., 349 N.W.2d 331, 332 (Minn. App. 1984).