This opinion will be unpublished and

may not be cited except as provided by

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







Martina Galindo,





Excel Temp, Inc.,



Commissioner of Employment and Economic Development,



Filed January 11, 2005


Toussaint, Chief Judge


Agency File No. 19070-03


David R. Forro, Caldecott & Forro, P.L.C., 431 South Seventh Street, Suite 2485, Minneapolis, MN 55415 (for relator)


Excel Temp, Inc., 5100 Edina Industrial Blvd., Edina, MN 55439 (respondent)


Lee B. Nelson, Department of Employment and Economic Development, 390 North Robert Street, St. Paul, MN 55101 (for respondent CEED)



            Considered and decided by Toussaint, Chief Judge; Huspeni, Judge;* and Crippen, Judge.*


U N P U B L I S H E D  O P I N I O N


TOUSSAINT, Chief Judge


Relator challenges the decision by the commissioner’s representative that she was disqualified from receiving unemployment benefits because she quit her employment.  Because the record supports the determination that relator voluntarily quit, we affirm.


Employee-relator Martina Galindo was employed through employer-respondent Excel Temp to work at Star Light Candles on September 24, 1999.  For the next four years, Galindo remained with Star Light, working Monday through Thursdays, but occasionally having Thursdays off for lack of work. Galindo claims that she was terminated by Excel on Wednesday, October 15, 2003.  Excel claims that it simply told her not to come in on Thursday, October 16, but to return on Monday, October 20.

Through an interpreter, Galindo testified that Excel staff coordinator Caesar Astrodo terminated her at the end of the workday on Wednesday.  Astrodo did not testify. Yadira Montalvo, Astrodo’s coworker and a production manager for Excel, testified that she was the only person authorized to terminate Galindo and that she did not do so.  Montalvo also testified that Astrodo told Galindo on Wednesday that she was not needed on Thursday but that she should return on the following Monday.  Although he did not directly converse with Galindo because he has only a rudimentary knowledge of Spanish, Excel’s paymaster, John Smith also testified that Galindo was not terminated on Wednesday and she was asked to return on Monday. 

            Galindo testified that she wanted to obtain her profit sharing fund held by Excel.  She testified that she urgently needed the money to pay her bills and her child needed it for “the university.”  Montalvo testified that Galindo contacted her on Thursday, asking for her profit sharing.  Montalvo speaks Spanish and communicated directly with Galindo that she could not withdraw the funds unless she resigned from her job with Excel.  Montalvo testified that she impressed upon Galindo that she had not been terminated from Excel.  Nevertheless, on Thursday Galindo signed both an employee resignation form and a request for distribution of her profit sharing account and received her money.  Galindo’s letter states that she decided not to work for the company any more and that is why she wanted the funds. 

            Arguing that she was terminated from her position at Excel, Galindo suggests that she was terminated because she had asked for a permanent job with Star Light Candles but had been passed over.  Galindo testified that she was upset that others got permanent positions at Star Light.  Montalvo testified that Galindo raised this issue in their conversation, but Montalvo explained that Excel could not arrange for her to get a permanent job. 

            The commissioner’s representative concluded that Galindo voluntarily quit her job with employer Excel Temp., Inc.  Galindo brings this certiorari appeal.


            On certiorari 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).  “We review the commissioner’s factual findings in the light most favorable to the commissioner’s decision and will not disturb them 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).  “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). “A quit from employment occurs when the decision to end the employment was, at the time the employment ended, the employee’s.”  Minn. Stat. § 268.095, subd. 2 (Supp. 2003).

            The commissioner’s representative acknowledged that there was conflicting evidence as to whether Galindo was terminated by Astrodo on Wednesday, October 16.  “When the parties have presented conflicting evidence on the record, this court must defer to the Commissioner's ability to weigh the evidence.”  Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995).  All parties concurred that it was Star Light’s practice to occasionally work with a reduced workforce on Thursdays.  There was no documentary evidence that Galindo was terminated on October 16 and the testimony of the employer is that she was not terminated.  The commissioner’s representative resolved the factual dispute in favor of the employer’s version of events, expressly determining that Galindo’s version was less credible.  Because there was no credible evidence that Excel had terminated Galindo on October 16, the commissioner’s representative’s finding that she was not terminated is supported by the record.

            The commissioner’s representative clarified that he did not consider Galindo’s letter of resignation as conclusive proof that she voluntarily quit.  Nevertheless, it was prepared despite Montalvo’s explanation to Galindo that she had not been terminated and could not access the profit sharing funds unless she was terminated or she resigned.  There is also no support for Galindo’s theory that she was fired because she was upset at not being hired on a permanent basis or that she was forced to sign the letter of resignation.  Because Excel took no steps to terminate relator and instead attempted to correct relator’s misunderstanding, we conclude there was evidence that reasonably sustains the commissioner’s representative’s findings and conclusion that relator voluntarily quit.


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