This opinion will be unpublished and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
C3-98-500

Daniel A. Malm,
Respondent,

vs.

Banta Direct Marketing, Inc.,
Relator,

Commissioner of Economic Security,
Respondent.

Filed September 29, 1998
Affirmed
Norton, Judge*

Department of Economic Security
Agency File No. 7594 UC 97

Alan J. Albrecht, Albrecht & Associates, Ltd., Boulevard Plaza, 7066 Brooklyn Boulevard, Brooklyn Center, MN 55429 (for respondent Daniel A. Malm)

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

Frank A. Dvorak, Foley & Mansfield, P.L.L.P., 200 Lafayette Building, 1108 Nicollet Mall, Minneapolis, MN 55403 (for relator)

Considered and decided by Huspeni, Presiding Judge, Norton, Judge, and Holtan, Judge.**

U N P U B L I S H E D   O P I N I O N

NORTON, Judge

Relator Banta Direct Marketing, Inc., challenges the commissioner's representative's determination that respondent Daniel Malm did not quit employment but rather was discharged from employment for reasons other than misconduct. We affirm.

FACTS

Malm worked full time as a second assistant press operator for Banta, a commercial and direct mail printer. In May 1997, at Banta's request, Malm underwent testing for color blindness. Test results showed a strong color blindness defect. On June 19, 1997, Banta informed Malm that he could no longer work as a second press operator because of his color blindness and offered him a folder operator position in the bindery department.

Banta gave Malm until June 27, 1997, to decide on the offer. After Malm hired an attorney, Alan Albrecht, Banta agreed to keep the offer open until August 1, 1997. On July 30, 1997, Banta faxed a letter to Albrecht stating that, if, by the end of the business day on August 1, 1997, Malm did not indicate an interest in transferring to a position outside of the press department, Malm's employment with Banta would cease at that time. On August 1, 1997, Albrecht contacted Banta, and Banta agreed to keep the offer open until August 5, 1997.

Malm missed the August 5 deadline. On August 7, 1997, Banta faxed Albrecht a letter stating that, because Malm had failed to respond to the reassignment offer, Banta considered his employment voluntarily terminated effective that day. The same day, Albrecht advised Banta that Malm had not seen the July 30 letter until August 6, 1997, and that Albrecht and Balm were meeting to discuss the situation that day. Also on August 7, 1997, Malm left a voice-mail message for Lori Storms, Banta's human resources manager, indicating an interest in accepting the folder operator position. On August 8, 1997, he left a letter to the same effect in her office or mailbox at work.

On August 8, 9, and 10, 1997, Malm worked his regular shifts as a press operator. On August 11, 1997, Banta called Malm and told him that Banta considered his failure to respond to the folder operator position offer by the August 5, 1997, deadline to be a voluntary quit and that the folder operator position was no longer available.

D E C I S I O N

An employee who quits a job is disqualified from receiving reemployment insurance benefits unless the employee quit "because of a good reason caused by the employer." Minn. Stat.  268.09, subd. 1a (Supp. 1997). "A quit from employment occurs when the decision to end the employment was, at the time the employment ended, the employee's." Id., subd. 2a (Supp. 1997).

The employer has the burden of proving by a preponderance of the evidence that an employee quit employment. Marz v. Department of Employment Servs., 256 N.W.2d 287, 289 (Minn. 1977). "Whether an employee has been discharged or voluntarily quit is a question of fact." Midland Elec., Inc. v. Johnson, 372 N.W.2d 810, 812 (Minn. App. 1985). Findings of fact must be reviewed in the light most favorable to the decision and will not be disturbed if there is evidence reasonably tending to support them. Fujan v. Ruffridge-Johnson Equip., 535 N.W.2d 393, 395 (Minn. App. 1995).

Banta argues that, because Malm testified he saw the July 30 letter on August 1, the evidence does not support the commissioner's representative's finding that Malm did not quit employment. Malm did testify that he saw the July 30 letter on August 1. But the commissioner's representative found:

On August 7, 1997, [Banta] sent [Malm's] counsel a faxed letter indicating that because [Malm] had not responded [to the August 5 deadline], [Malm] was deemed to be voluntarily separated. [Malm's] counsel, in response to [Banta's] determination that [Malm] was voluntarily separated, indicated (on August 7, 1997) to [Banta] that [Malm] had not received [Banta's] letter stating [Banta's] position until Wednesday, August 6, 1997 and [Malm] and his attorney were to meet August 7, 1997 to discuss the situation.

The commissioner's representative did not make an express finding as to what date Malm saw the July 30 letter. But the finding that "the record does not indicate any intent or action on the part of [Malm] which would indicate a voluntary termination of employment" indicates that the commissioner's representative found the August 7 letter from Albrecht to be credible evidence that Malm did not see the July 30 letter until August 6. We infer from the finding setting forth the events that occurred on August 7, together with the finding regarding the absence of evidence indicating a voluntary termination by Malm, a finding that Malm did not see the July 30 letter until August 6.

No evidence other than Malm's testimony indicates that Malm had notice that his employment would be terminated if he did not accept the folder operator position by a certain date. Malm's testimony could have been a misstatement. The August 7 letter from Albrecht supports the finding that Malm did not see the July 30 letter until August 6.

On August 7, Malm met with Albrecht to discuss his employment situation and then left a voice-mail message for Storms indicating an interest in accepting the folder operator position. On August 8, he left a letter to the same effect in her office or mailbox at work. On August 8, 9, and 10, 1997, Malm worked his regular shifts as a press operator. On August 11, 1997, Banta called Malm and told him that Banta considered his failure to respond to the folder operator position offer by the August 5, 1997, deadline to be a voluntary quit and that the folder operator position was no longer available. Malm's actions, after seeing the July 30 letter, do not indicate a decision by Malm to end employment. The evidence supports the commissioner's representative's finding that Malm did not quit employment.

An employee who was discharged from employment for reasons other than misconduct is entitled to receive reemployment insurance benefits. Minn. Stat.  268.09, subd. 10 (Supp. 1997). Banta does not contend that Malm committed misconduct. The commissioner's representative properly determined that Malm was not disqualified from receiving reemployment insurance benefits.

Affirmed.

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

** Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI,  10.