This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1981

 

Raymond Strong,

Relator,

 

vs.

 

City of Minneapolis Public Works,

Respondent,

 

Department of Employment and Economic Development,

Respondent.

 

Filed August 9, 2005

Affirmed

Parker, Judge*

 

Department of Employment and Economic Development

File No. 9291 04

 

Raymond Strong, 2511 5th Avenue, Anoka, MN  55303 (pro se relator)

 

Jay M. Heffern, Minneapolis City Attorney, Caroline M. Bachun, Assistant City Attorney, 300 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN  55402-2453 (for respondent City of Minneapolis Public Works)

 

Linda A. Holmes, Department of Employment and Economic Development, 332 Minnesota Street, Suite E200, St. Paul, MN  55101-1351 (for respondent Department of Employment and Economic Development)

 

            Considered and decided by Wright, Presiding Judge; Toussaint, Chief Judge; and Parker, Judge.

U N P U B L I S H E D   O P I N I O N

PARKER, Judge

By writ of certiorari, relator Raymond Strong challenges the order of respondent Department of Employment and Economic Development that determined relator was disqualified from receiving unemployment benefits.  Because the record reasonably supports the decision of the senior unemployment review judge that relator quit his employment, we affirm.

D E C I S I O N

Appellate courts review the factual findings of the senior unemployment review judge[1] in the light most favorable to the decision, and we will not reverse such findings if they are reasonably supported by the record.  Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996).  This court defers to the ability of the senior unemployment review judge to weigh conflicting evidence and will not reweigh the evidence on appeal.  Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995). 

Relator began employment with respondent City of Minneapolis Public Works (CMPW) on May 15, 2000.  At the time of hire, relator acknowledged that he was aware of and had read the CMPW’s drug and alcohol testing policy.  The policy states that CMPW “may request or require an employee to undergo drug and alcohol testing if [CMPW] . . . has a reasonable suspicion related to the performance of the job that the employee . . . [i]s under the influence of drugs or alcohol while . . . working or while . . . on [CMPW’s] premises.”  The policy also states that an employee has the right to refuse to undergo testing, but as a consequence, the CMPW may recommend to the civil service commission that the employee be discharged.

In the morning of October 24, 2003, relator was taken to the hospital by ambulance after arriving to work lethargic, disoriented, and unable to recognize his supervisor.  While at the hospital and after speaking with his union representative by telephone, relator consented to take a drug and alcohol test after being asked by CMPW to do so.  After waiting approximately 90 minutes, relator left the hospital when no one came to administer the drug test.  After leaving, relator attempted to obtain a drug test at another clinic, but the clinic was evidently unable to administer the test because it did not have relator’s consent form.  Relator notified his employer, who encouraged him to return to the hospital, but relator refused.  Relator was instructed to stay home until further notice.

Thereafter, relator spoke with his union representative again and then phoned his employer.  Relator asked if CMPW would accept his resignation in lieu of proceeding with an administrative hearing that relator understood would likely result in termination based on CMPW’s consistent enforcement of its drug-testing policy.  CMPW told him it would accept his resignation if he resigned prior to the administrative hearing.  Relator also asked CMPW if he would be eligible to apply for other jobs in the future if he resigned and CMPW told him that he would be.  Relator asked that the separation form be sent to him with that notation.  CMPW mailed the form, which relator signed and returned.

Relator applied for unemployment benefits, but a department adjudicator determined that relator was disqualified from receiving benefits.  Relator appealed and following a hearing on the matter, an unemployment law judge affirmed the adjudicator’s determination of disqualification after finding that relator quit his employment.  Relator filed a petition for further review, and the senior unemployment review judge affirmed by declining to conduct further proceedings and adopting the decision of the unemployment law judge.  Relator then appealed to this court.

The law permits the senior unemployment review judge to adopt the findings of fact and decision by the unemployment law judge as the final findings of fact and decision of the Department of Employment and Economic Development.  Minn. Stat. § 268.105, subd. 2a(a) (2004).  This new procedure “applies to all decisions issued by the department on or after [August 1, 2004].”  2004 Minn. Laws ch. 183, § 71.

“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).  Whether an employee who applies for unemployment benefits is subject to disqualification from benefits is a question of law.  Markel v. City of Circle Pines, 479 N.W.2d 382, 384 (Minn. 1992). Under Minnesota law, an applicant for unemployment benefits who quits employment is disqualified from receiving unemployment benefits unless he meets one of the statutory exceptions.  Minn. Stat. § 268.095, subd. 1 (Supp. 2003).[2] “A quit from employment occurs when the decision to end the employment was, at the time the employment ended, the employee’s.”  Id., subd. 2(a) (Supp. 2003).  A discharge from employment, however, “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 (2002).

Relator argues that the record does not support a finding that he refused to take a drug test and asserts that CMPW and his union representative persuaded him to resign rather than be discharged.  But the record contains a separation form that relator signed and submitted to CMPW that states that he was “resign[ing] [his] position of [his] own free will.” Because relator voluntarily chose to end his employment, the senior unemployment review judge correctly determined that relator quit his employment and is disqualified from receiving unemployment benefits because none of the statutory exceptions applies here.  See Minn. Stat. § 268.095, subd. 1 (listing exceptions).

Affirmed.