This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






Margaret L. Policone,





St. Paul College,



Commissioner of Employment

and Economic Development,




Filed April 20, 2004

Crippen, Judge


Department of Employment and Economic Development

File No. 3749-03


Denise L. Yegge, Mansfield, Tanick & Cohen, P.A., 1700 Pillsbury Center South, 220 South Sixth Street, Minneapolis, MN 55402-4511 (for respondent Margaret Policone)


Mike Hatch, Attorney General, David W. Merchant, Assistant Attorney General, 1100 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2128 (for relator)


Lee B. Nelson, Katrina I. Gulstad, Minnesota Department of Employment and Economic Development, 390 Robert Street North, St. Paul, MN 55101 (for respondent Commissioner of Employment and Economic Development)


            Considered and decided by Stoneburner, Presiding Judge, Hudson, Judge, and Crippen, Judge.

U N P U B L I S H E D   O P I N I O N


Relator St. Paul College contends that respondent Margaret L. Policone was ineligible for unemployment benefits because she voluntarily remained on a leave of absence after improvement of her emotional health.  The commissioner’s representative determined that respondent’s continued leave was involuntary because she could not return to work so long as relator required that she work under the same supervisor.  Because the commissioner’s representative’s eligibility determination is not erroneous as a matter of law, as relator contends, we affirm.


            The relevant facts are undisputed.  Respondent began working for relator as a customer service specialist in 1999, working under the supervision of relator’s registrar.  On August 8, 2002, respondent requested and was granted an unpaid medical leave of absence.

Respondent’s physician recommended her leave of absence based on her symptoms of depression, anxiety, and high blood pressure, among others.  Respondent testified that she felt the work environment under the registrar’s supervision was hostile.  She testified that on a daily basis, her supervisor yelled at her, targeted her, scrutinized her, and embarrassed her.  Two former employees familiar with the registrar’s supervision of respondent characterized the atmosphere in the registrar’s office as angry and stressful, and observed the registrar singling out and scrutinizing respondent.

             In December 2002, respondent’s physician released her to work for relator with the restriction that she “work under different supervision.”  Relator’s human resources director told respondent that her job was still available and she could return to work under the registrar’s supervision, but that no positions were available under different supervision.  The commissioner’s representative found that “[relator] had no vacant positions available with a different supervisor.”  In February 2003, while on continued unpaid leave, respondent filed a claim for unemployment benefits.


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).

            Factual findings are reviewed in the light most favorable to the commissioner’s decision and will not be disturbed as long as there is evidence that reasonably tends to sustain those findings.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  Although this court defers to the commissioner’s findings if the evidence in the record reasonably supports them, the court exercises its independent judgment with respect to questions of law.  Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).

            An applicant must meet ongoing eligibility obligations under Minn. Stat. § 268.085 (2002).  Minn. Stat. § 268.069, subd. 1(3) (2002).  Under Minn. Stat. § 268.085, subd. 13a(a), an applicant is ineligible for benefits when on a “voluntary leave of absence,” one where the applicant “can then perform” available work but chooses not to.  On February 2, 2003, the date respondent applied for unemployment benefits, relator maintained that her leave was voluntary and as a result she was ineligible for unemployment benefits.[1] 

            The commissioner’s representative determined that respondent’s continued leave was “involuntary” because relator, being unable to accommodate the restriction announced by respondent’s physician, did not offer a position that respondent could then perform.  Relator, therefore, effectively “did not allow her to return to work”; relator does not dispute this finding.  Although relator does not agree with the observation that respondent’s supervisor had created a hostile work environment, relator disputes neither the contrary finding of fact by the commissioner’s representative nor the added findings that respondent’s supervisor “yelled at her, targeted her, scrutinized her, and embarrassed her, ” and that the situation did not improve after respondent complained.  Rather, relator insists for two reasons that the commissioner’s representative erred as a matter of law when determining that respondent, who was otherwise able to return to work, was involuntarily unemployed because she was able to return, according to the opinion of her physician, only with a restriction.

            First, relator asserts that the decision in this case unlawfully strips the employer of its inherent power to choose who will supervise an employee.  In support of its argument, relator cites, for example, discrimination law standards that do not impose upon employers the burden of providing a new supervisor.  See, e.g., Weiler v. Household Finance Corp., 101 F.3d 519, 524 (7th Cir. 1996) (holding the American Disabilities Act does not require a change in supervision as a form of reasonable accommodation); Public Employment Labor Relations Act, Minn. Stat. §§ 179A.01-.30 (2002). 

            This argument fails because it overlooks the nature and effect of unemployment compensation law.  The employer is fully entitled to designate an employee’s supervisor and to refuse employment to one who will not work with the supervisor.  But this designation by the employer may render an employee eligible for unemployment compensation benefits under the unique provisions of Chapter 268.  Under Minn. Stat. § 268.085, subd. 13a(a), a leave of absence is voluntary only when an applicant “can then perform” a refused job.  The commissioner’s representative did not err, in the circumstances of this case, in determining that respondent could not perform the work available.  As the commissioner asserts on appeal, relator’s argument, if heeded, would suffice as an attack on the eligibility of any employee who is laid off. 

            Second, relator also claims that this case should be governed by determinations that an employee has no good cause to quit when dissatisfied with a supervisor.  See, e.g., Trego v. Hennepin County Family Day Care Ass’n., 409 N.W.2d 23, 26 (Minn. App. 1987) (holding employee’s dissatisfaction with supervisor did not constitute good cause to quit); Portz v. Pipestone Skelgas, 397 N.W.2d 12, 14 (Minn. App. 1986) (holding unsatisfactory working conditions and poor relationship with supervisor did not constitute good cause to quit). 

            But none of these voluntary quit opinions addresses a determination that an employee cannot continue working; they do not contradict the commissioner’s representative’s determination that an employee’s leave becomes involuntary when she cannot perform a job that is available.  Moreover, none of these cases involves undisputed findings that the employer required the employee to accept a threatening environment.

            In its reply brief, relator contends that respondent was ineligible for failure to seek suitable employment under Minn. Stat. § 268.085, subd. 1(2).  Because this issue was not raised with the commissioner’s representative and was not raised in relator’s initial brief before this court, the question is not properly before us.  Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988); McIntire v. State, 458 N.W.2d 714, 717 n.2 (Minn. App. 1990) (holding issues not raised in appellant’s initial brief cannot be revived in reply brief), review denied (Minn. Sept. 28, 1990); Minn. R. Civ. App. P. 128.02, subd. 3 (reply brief must be confined to matters raised in respondent’s brief).


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

[1]   Somewhat similar issues arise in related situations governed by other statutes.  See, e.g., Minn. Stat §§ 268.085, subd. 1(2) (rendering one ineligible due to refusal of new position so long as the position is not found unsuitable); 268.095 (2002) (disqualifying individual who has “quit employment,” implying something other than an involuntary layoff).  We decide the immediate case solely in the context of Minn. Stat. § 268.085, subd. 13a(a) and make no determination regarding the special circumstances of refusing new jobs or leaving present employment.