This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).







Afaf M. Kouatli,





Solbakken, Inc.,



Commissioner of Employment and Economic Development,




Filed ­­­April 26, 2005


Toussaint, Judge


Department of Employment and Economic Development

Agency File No. 4759 04


Mary R. Vasaly, Elizabeth Snyder Poeschl, Maslon, Edelman, Borman & Brand, LLP, 3300 Wells Fargo Center, 90 South Seventh Street, Minneapolis, MN 55402 (for relator)


Lee B. Nelson, Linda A. Holmes, Department of Employment and Economic Development, E200 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101 (for respondent Department of Employment and Economic Development)


Thomas A. Harder, Foley & Mansfield, 250 Marquette Avenue, Suite 1200, Minneapolis, MN 55401 (for respondent Solbakken, Inc.)


            Considered and decided by Shumaker, Presiding Judge; Toussaint, Chief Judge; and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N


TOUSSAINT, Chief Judge


            Relator Afaf Kouatli challenges the decision of the commissioner’s representative denying her unemployment benefits because she quit her employment.  Because evidence sustains the commissioner’s representative’s decision, we affirm.


            On certiorari appeal, this court reviews the decision of the commissioner’s representative, not that of the unemployment law judge.  Kalberg v. Park & Recreation Bd., 563 N.W.2d 275, 276 (Minn. App. 1997).  This court will not disturb the commissioner’s factual findings as long as there is evidence that reasonably sustains them.  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).  If there is conflicting evidence between the parties’ testimony, this court must defer to the commissioner’s representative’s ability to weigh the evidence.   Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995).

            The commissioner’s representative found that relator was disqualified from receiving unemployment benefits because she voluntarily quit her employment.  “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 (2002).  The commissioner’s representative stated that:

Although the employer testified that it had reason to discharge [relator], it did not discharge her.  It was [relator] who ended the employment when she left the employer, and left the country.  [Relator] could not have reasonably believe[d] that she was granted a leave of absence because the employer told her that it would not guarantee her a job when she returned.  [Relator] decided to leave anyway.  She therefore quit her job, hoping to be accepted back when she returned.


            Evidence sustains the commissioner’s representative’s finding that relator chose to leave her employment although her employer told her that her employment would not be guaranteed when she returned from a month-long trip.  The employer testified as follows:

Q: What kind of an agreement or did you have an agreement when [relator] was leaving . . . ?


Employer: She just told me . . . that she would go  . . . for a month. . . .  I told her it would be very difficult to cover her hours and I, I believed that I could not promise that she would have a position.

. . .


Q: And you believe that it was left open-ended, if there was a position maybe she’d have a job?


Employer: Correct.

. . .


Q: I want a statement from you . . . regarding your understanding as to whether [relator] had quit or was told distinctly before she left that she would not have a job when she came back.


Employer: What I told her was that was a long time to be gone and that I could not hold a position for, for that length of time.  She hadn’t worked there long enough to earn vacation.


Q: Was she ever promised that she would have a job when she came back?


Employer: No.


Relator, however, contends that she expected her job to be there when she returned.  When relator was asked if her employer “promise[d] [her] a job when [she] came back,” relator testified, “She didn’t say anything, she just say, okay you can go.”  Relator argues that the statement “you can go” indicates that the employer granted her a leave of absence.  But this statement cannot be viewed in isolation from the rest of the employer’s statements to relator indicating that the employer could not hold the job open.  Further, the commissioner’s representative found the employer’s version of events to be more credible than relator’s, and we must defer to that judgment.  See Whitehead, 529 N.W.2d at 352.  Thus, we agree that relator’s decision to leave was a quit because she voluntarily chose to go away for a month even though she was told her employment future was not guaranteed.

Because relator quit her employment, she is disqualified from receiving unemployment benefits unless she meets one of the statutory exceptions.  See Minn. Stat. § 268.095, subd. 1 (Supp. 2003). [1],  We find that none of the exceptions applies here.

Evidence supports the commissioner’s representative’s finding that relator left her employment after she was told her job could not be held open until she returned, which is a quit under Minn. Stat. § 268.095.  Because relator quit her employment and none of the statutory exceptions applies, she is disqualified from receiving unemployment benefits.


[1] Because relator left her employment in 2003, we apply the 2003 version of the statute.  See Brown v. Nat’l Am. Univ., 686 N.W.2d 329, 332 (Minn. App. 2004)(law in effect at time of discharge applies), review denied (Minn. Nov. 16, 2004).