This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).




Gary L. Modlin,

Faithful and Gould Inc.,


Filed November 13, 2007


Klaphake, Judge


Department of Employment and Economic Development

File No. 7829 06


Gary L. Modlin, 14152 62nd Place North, Maple Grove, MN  55311 (pro se relator)


Faithful and Gould, Inc., Attn. Duane Roggow, 817 West Peachtree Street, Suite 500, Atlanta, GA  30308 (respondent employer)


Lee B. Nelson, Minnesota Department of Employment and Economic Development, 1st National Bank Building, 332 Minnesota Street, Suite E200, St. Paul, MN  55101-1351 (for respondent)


            Considered and decided by Klaphake, Presiding Judge; Shumaker, Judge; and Huspeni, Judge.*

U N P U B L I S H E D   O P I N I O N


            In this certiorari appeal, pro se relator Gary L. Modlin challenges the unemployment law judge’s (ULJ) decision that he quit his employment without good reason caused by his employer, respondent Faithful and Gould, Inc.  Because the evidence reasonably shows that continuing employment was available to relator in Louisiana following his initial 90-day commitment, but that relator chose to return to Minnesota, we affirm the ULJ’s decision.


            We review the ULJ’s decision to determine whether the factual findings are supported by substantial evidence in the record or the decision is affected by legal error.  Minn. Stat. § 268.105, subd. 7(d) (2006).  A person who quits employment is disqualified from receiving unemployment benefits unless a statutory exception applies.  Minn. Stat. § 268.095, subd. 1 (2006).  The issue of whether an employee was discharged or quit is a question of fact.  Midland Elec., Inc. v. Johnson, 372 N.W.2d 810, 812 (Minn. App. 1985). 

            A quit occurs “when the decision to end the employment was, at the time the employment ended, the employee’s.”  Minn. Stat. § 268.095, subd. 2 (2006).  A discharge, on the other hand, occurs “when any words or actions by an employer would lead a reasonable employee to believe that the employer will no longer allow the employee to work for the employer in any capacity.”  Id., subd. 5 (2006).  The disqualification provisions, which include the definitions of “quit” and “discharge,” apply to “all covered employment, full time or part time, temporary or of limited duration, permanent or of indefinite duration.”  Minn. Stat. § 268.095, subd. 11(a) (2006) (emphasis added).

            At the hearing before the ULJ, relator claimed that he left his employment because he was working under a 90-day contract that ended on April 14, 2006.  But the employer’s representative, Duane Roggow, testified that relator “voluntarily resigned” and that he chose to be released from his position, despite the fact that continuing work remained available to him.  Roggow further testified that a job remained available if relator chose to return.  Relator agreed that he could have continued to work in Louisiana and that work was available to him, but that he chose not to return.  We therefore conclude that substantial evidence supports the ULJ’s finding that relator quit his employment, even though continuing work was available, and that it was relator’s decision to end his employment.

            If an employee quits his employment, he is disqualified from receiving benefits unless one of eight statutory exceptions applies.  Minn. Stat. § 268.095, subd. 1(1)–(8) (2006).  The only exception that might apply to the facts of this case is when an employee quits because of a good reason caused by his employer.  Id., subd. 1(1). 

A good reason caused by the employer is a reason:  (1) that is directly related to the employment and for which the employer is responsible; (2) that is adverse to the worker; and (3) that would compel an average, reasonable worker to quit and become unemployed rather than remaining in the employment. 

Minn. Stat. § 268.095, subd. 3(a) (2006).  “The determination that an employee quit without good reason [caused by] the employer is a legal conclusion,” which we review de novo.  Nichols v. Reliant Eng’g & Mfg., Inc., 720 N.W.2d 590, 594 (Minn. App. 2006).

            Here, relator decided to end his employment after 90 days because he believed he had fulfilled his contract and wanted to return to Minnesota.  It appears that he chose to discontinue working for Faithful and Gould because of the long hours, the stress, and the depressing conditions in Louisiana.  Arguably, these reasons are directly related to the employment, are adverse to the worker, and might compel an average, reasonable worker to quit and become unemployed rather than remaining in the employment.  See id. at 595.  But these reasons are personal in nature and not attributable to the employer.  See Portz v. Pipestone Skelgas, 397 N.W.2d 12, 14 (Minn. App. 1986) (holding that good reason to quit caused by employer “does not encompass situations . . . where the employee is simply frustrated or dissatisfied with his working conditions”).  As respondent Department of Employment and Economic Development points out, relator was aware of the long hours when he accepted the position, knew the position was in Louisiana, and had to have known about the difficult conditions there.

            On appeal, relator raises arguments that are slightly different from the arguments presented to the ULJ.  First, relator insists that “[i]f I had stayed on past my 90 [day] agreement, this would have created a hostile environment since I had been instructed to head home by my supervisors[’] immediate supervisor.”  As proof, he attaches several e-mails that are not part of the record before the ULJ and should not be considered by us on appeal.  See Minn. R. Civ. App. P. 110.01; see also Imprint Techs., Inc. v. Comm’r of Econ. Sec., 535 N.W.2d 372, 378 (Minn. App. 1995) (stating that issues not raised below may not be raised for first time on appeal).

            Even if we were to consider this evidence, Roggow’s testimony explains the situation that existed when relator decided to leave Louisiana:

On the last week that [relator] was there, there was some difficulty with one party that he was working for, and he was not going to be able to return to that particular assignment, but we made contact with other people in FEMA and we had work available for [relator] to do after April 15.  We offered [relator] to come on and continue to work.  There was work available for him and he chose to go home.


Thus, the evidence clearly shows that continuing work was available and offered to relator.

            Second, relator insists that it is undisputed that he “lived up to his agreement” to stay for 90 days.  Relator, who appears pro se, fails to fully explain how the fact that he fulfilled his initial contract is relevant to the unemployment statutory scheme, which is intended to provide income to individuals who are unemployed through no fault of their own.  Minn. Stat. § 268.03 (2006).

            Finally, for the first time on appeal, relator argues that should we affirm the ULJ’s decision that he is not eligible to receive unemployment benefits from Faithful and Gould, he “respectfully requests that [his] unemployment benefits be reinstated from Target Corporation.”  He further states that he “realize[s] that it is beyond the 52 weeks since employment with [Target Corporation], however, due to the hearing and appeal process [he] would respectfully request that the 52 week period be waived.”

            An individual is paid benefits only during the 52-week period subsequent to the establishment of the benefit account.  Minn. Stat. § 268.085, subd. 1(2) (2006); see also Minn. Stat. §§ 268.035, subd. 6 (defining “benefit year”), .069, subd. 3 (2006) (providing that there is no equitable entitlement to unemployment benefits).  Benefits are paid from state funds, not from an employer’s funds, and an individual’s past employment determines only the monetary entitlement, not where the funds come from.  Minn. Stat. § 268.069, subd. 2 (2006).

            We therefore affirm the ULJ’s decision that relator is disqualified from receiving benefits.



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