This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
Daryl S. Morse,
Cleary Building Corp.,
Commissioner of Economic Security,
Filed February 25, 2003
Department of Economic Security
Agency File No. 56-02
Brandon V. Lawhead, Lawhead Law Offices, 301 South Main Street, Austin, MN 55912 (for relator)
Kate M. Chaffee, Department of Economic Security, 390 North Robert Street, St. Paul, MN 55101 (for respondent Commissioner of Economic Security)
Considered and decided by Peterson, Presiding Judge, Harten, Judge, and Huspeni, Judge.*
Relator employee challenges the commissioner’s representative’s decision disqualifying him from receiving unemployment benefits because he quit his employment without a good reason caused by his employer. We agree that relator quit without a good reason caused by his employer, and, accordingly, we affirm.
On 9 April 2001, relator Daryl Morse entered into a written employment agreement with respondent Cleary Building Corp (Cleary). Relator agreed to work as a sales representative for a salary of $440 per week plus commission and a possible bonus. The agreement provided:
A new sales employee is considered to be a probationary employee during the first 90-day period of employment. * * * After the initial 90-day probationary period, the sales employee must be at the year-to-date sales quota. If the year-to-date sales quota is not achieved at the end of the fiscal month, the salary of the sales employee will be reduced in the following month. The reduction in salary will be based on the percentage of the sales quota achieved year-to-date. As an example, if 75% of the year-to-date sales quota is met, the sales employee will receive 75% of his/her salary in the following month. * * * Once the sales employee returns to his/her year-to-date quota, all withheld salary will be considered earned and will be paid to the sales employee * * * .
In June 2001, relator became a branch manager and received an extra $50 per week in addition to his base sales employee salary. His 90-day probationary period ended on 9 July 2001. A manager from Cleary testified that, in August 2001, Cleary sent relator a letter
stating that he was considerably behind budget, he was running roughly * * * 50 percent of budget and that if he [did] not improve his sales [Cleary] would adjust his pay.
Relator’s sales did not improve. On 29 October 2001, Cleary sent relator a letter informing him that it reduced his base salary by 50 percent, from $440 to $220 per week. Relator quit the next day.
In November 2001, relator filed a claim for unemployment benefits with the Department of Economic Security. The department adjudicator determined that relator quit for a good reason when Cleary reduced his salary and that he was qualified to receive unemployment benefits. Cleary appealed, and an unemployment law judge affirmed. Cleary then appealed to the Commissioner of Economic Security. The commissioner’s representative reversed the unemployment law judge, finding that the employment agreement “specifically indicate[d] that [relator’s] salary of $440 per week may be reduced based on the percentage of sales quota achieved year-to-date” and concluding that relator quit without a good reason caused by Cleary. Relator challenges the representative’s decision.
D E C I S I O N
On appeal, a reviewing court must examine the decision of the commissioner’s representative rather than that of the unemployment law judge. Kalberg v. Park & Recreation Bd., 563 N.W.2d 275, 276 (Minn. App. 1997). Decisions of the commissioner’s representative are accorded particular deference. Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995). The commissioner’s representative’s factual findings are viewed in the light most favorable to the decision and are not disturbed if evidence in the record reasonably tends to sustain them. Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996). The ultimate determination of whether an employee is disqualified from receiving unemployment benefits, however, is a question of law that this court reviews de novo. Ress v. Abbott N.W. Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).
An employee who quits without good reason caused by the employer is disqualified from receiving unemployment insurance benefits. Minn. Stat. § 268.095, subd. 1(1) (Supp. 2002). “[G]ood reason caused by the employer” includes “[a] substantial adverse change in the wages, hours, or other terms of employment by the employer.” Id., subd. 3. The determination that an employee quit without good reason attributable to the employer is a legal conclusion, but it must be based on findings that have the requisite evidentiary support. See Zepp v. Arthur Treacher Fish & Chips, Inc.¸ 272 N.W.2d 262, 263 (Minn. 1978) (interpreting predecessor statute, requiring “good cause” attributable to employer).
Relator argues that he had a good reason to quit because Cleary reduced his salary by 50 percent. The cause for quitting, however, “may not be attributable to the employer if [the] changes are explained by the employee’s agreement.” Simonson v. Thin Film Tech. Corp., 392 N.W.2d 363, 364 (Minn. App. 1986). In Simonson, an employee quit after being reassigned to a new position with lower pay. Id. We affirmed a determination that the employee was disqualified from receiving unemployment benefits, in part because “[t]he company employment contract expressly rejected the permanence of job placements and relator acknowledged that she knew positions in the plant were not guaranteed.” Id. at 365.
Similarly, the employment agreement between Cleary and relator expressly provided that Cleary could reduce relator’s salary if he failed to meet his year-to-date sales quota. Relator acknowledged that he read and signed the agreement. After warning relator and allowing him three extra months to meet his quota, Cleary reduced his salary in accord with the unambiguous formula set forth in the agreement. Because Cleary acted in accord with the agreement, the reduction in salary did not provide relator with a good reason to quit caused by his employer.
Relator contends that the employment agreement was modified when his supervisor told him that Cleary would not reduce his salary as long as he sold “some” buildings and that Cleary’s conduct in promoting him to branch manager and not reducing his salary the month after he failed to meet his quota evidences this modification. “While a written contract may be modified by the parties’ subsequent conduct, whether such a modification occurred is a question for the factfinder.” Poser v. Abel, 510 N.W.2d 224, 228 (Minn. App. 1994) (citation omitted), review denied (Minn. 24 Feb. 1994). The commissioner’s representative did not explicitly address whether the employment agreement was modified, but the determination that relator was disqualified from receiving unemployment benefits implies a finding that there was no modification.
The record supports that finding. Relator testified that, after talking to his supervisor about the reduction-in-salary provision, the supervisor
more or less just kind of run around and hid behind a bush on it, said well as long as you are selling some buildings you know they’re gonna leave you alone, you’re gonna continue drawing that weekly pay, * * * you’re not gonna have to worry about your 440. So I took his word on that. * * * When I was employed I started receiving letters that * * * the pay was gonna be cut, I would speak with [the supervisor] on it, he would just assure me, he goes I’ll do what I can for you * * * to keep the pay.
Relator also testified that the supervisor said, “As long as * * * you’re making some sales, * * * I don’t see where they’re gonna cut ya.” These vague statements about what “they” might do fail to demonstrate that Cleary intended to modify the agreement. See Hayle Floor Covering, Inc. v. First Minn. Constr. Co., 253 N.W.2d 809, 812 (Minn.1977) (terms of written agreement can only be altered by parol evidence that is clear and convincing). Moreover, Cleary’s August 2001 letter showed that it intended to enforce the agreement, not to modify it. The evidence reasonably tends to sustain the implicit finding that the parties did not modify the employment agreement.
We conclude that relator quit his employment without good reason caused by his employer and is disqualified from receiving unemployment benefits.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 Relator also asserts that he had a good reason to quit because Cleary did not increase his $50 per week branch manager pay after 60 and 90 days. A manager from Cleary, however, testified that the potential pay increases were contingent on receiving positive reviews and that relator did not receive such reviews. We defer to the commissioner’s representative on credibility determinations. Jenson v. Dep’t of Econ. Sec., 617 N.W.2d 627, 631 (Minn. App. 2000), review denied (Minn. 20 Dec. 2000). The commissioner’s representative’s decision implies that it found the manager’s testimony credible and determined that the potential pay increases were not guaranteed.