This opinion will be unpublished and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

A05-632

 

Duane J. Pomeroy,
Relator,

vs.

Fusion Coatings Division,
Respondent,

Department of Employment and Economic Development,
Respondent.

 

Filed February 21, 2006

Affirmed; motion granted

Minge, Judge

 

Department of Employment and Economic Development

File No. 15465 04

 

 

Katherine A. McBride, Meagher & Geer, P.L.L.P., 33 South Sixth Street, Suite 4200, Minneapolis, MN 55402 (for relator)

 

Linda A. Holmes, First National Bank Building, 332 Minnesota Street, Suite E200, St. Paul, MN 55101-1351 (for respondent department)

 

            Considered and decided by Worke, Presiding Judge; Willis, Judge; and Minge, Judge.

U N P U B L I S H E D  O P I N I O N

MINGE, Judge

            Relator challenges the decision of the SURJ that he was disqualified from receiving unemployment compensation benefits because he quit without good reason caused by his employer.  Because the SURJ did not impermissibly consider evidence outside the record, and because the SURJ did not err in concluding that relator’s work situation would not have caused an average, reasonable worker to quit and that relator quit for other reasons, we affirm.

FACTS

 

Relator Duane J. Pomeroy began working for Fusion Coatings, Inc. (“Fusion”) in May 1987.  When his employment terminated in September 2004, Pomeroy was working as a production welder.  In January 2004, Fusion instituted an increase in the pace of its welding assembly line, requiring the production of one unit per two and one-half minutes instead of one unit per three and one-half minutes.  Pomeroy met with his supervisors and indicated that he was having trouble adapting to the faster pace, and requested a switch to a different production line with a slower pace.  Pomeroy was older than the others on the line and characterized his situation as “we’re all going 70 miles an hour, but the other guys are driving Vipers and I’m driving a Yugo.”

The unemployment law judge (“ULJ”) heard conflicting testimony about the reaction of Pomeroy’s supervisor to his request to switch positions.  Pomeroy testified that his supervisor flatly refused to let him switch positions, as he had not yet gained the required proficiency level on his current line.  Pomeroy insisted he was never given the opportunity to gain proficiency, as he had yet to be assigned to the necessary tasks.  However, Pomeroy’s supervisor testified that he merely cautioned Pomeroy, suggesting that switching positions before gaining proficiency would negatively affect Pomeroy’s ability to qualify for a pay increase.

            Faced with what he interpreted as an untenable situation, Pomeroy looked for other work and received a conditional offer of employment.  Pomeroy then tendered his resignation to Fusion.  However, because he did not pass the requisite physical exam, the conditional offer of employment was withdrawn and Pomeroy attempted to rescind his resignation.  Fusion refused and Pomeroy was unemployed.

            The Department of Employment and Economic Development (“DEED”) initially determined that Pomeroy was not eligible for unemployment compensation benefits, finding that he voluntarily quit without a good reason caused by his employer.   Pomeroy appealed, and the ULJ reversed this determination, finding that Fusion caused Pomeroy to voluntarily quit for a good reason.  Fusion appealed to the Senior Unemployment Review Judge (“SURJ”),[1] who reversed the ULJ and found that Pomeroy quit for personal reasons and, therefore, was disqualified from receiving unemployment benefits.  Pomeroy now brings this certiorari appeal challenging the SURJ’s decision.

D E C I S I O N

            On certiorari appeal, this court reviews the decision of the SURJ.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  Such review is very narrow, Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995), and we accord the SURJ “particular deference,” Tuff, 526 N.W.2d at 51.  It is undisputed that Pomeroy quit his employment.[2] An applicant who voluntarily quits his employment is disqualified from receiving unemployment benefits unless the applicant demonstrates that an exception applies, such as a good reason caused by the employer.  Minn. Stat. § 268.095, subd. 1 (2004).  Therefore, the only dispositive question in this appeal is whether Pomeroy quit for a good reason caused by the employer.  This presents a question of law, which this court reviews de novo.  Ress v. Abbott Nw. Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989). 

I.          Disqualification for Voluntary Termination of Employment

According to the statute, 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) (2004).  “What constitutes good reason caused by the employer is defined exclusively by statute.”  Rootes v. Wal-Mart Assocs., Inc., 669 N.W.2d 416, 418 (Minn. App. 2003).  The statute requires that “there must be some compulsion produced by extraneous and necessitous circumstances.”  Edward v. Sentinel Mgmt. Co., 611 N.W.2d 366, 368 (Minn. App. 2000) (quotation omitted), review denied (Minn. Aug. 15, 2000).  For this reason, “[a] good personal reason does not equate with good cause” to quit.  Kehoe v. Minn. Dep’t of Econ. Sec., 568 N.W.2d 889, 891 (Minn. App. 1997) (quotation omitted).

Where the applicant was subjected to adverse working conditions by the employer, the applicant must first complain and allow the employer a reasonable opportunity to correct the adverse working conditions before such conditions may be considered good reason to quit caused by the employer.  Minn. Stat. § 268.095, subd. 3(c).  A demotion, including a substantial reduction in wages and a change in hours, may constitute an adverse change in working conditions.  Rootes, 669 N.W.2d at 419.  Accord  Miller v. Int’l Express Corp., 495 N.W.2d 616, 618 (Minn. App. 1993).    

In addition, several cases have addressed the situation in which the employer increased work responsibility.  For example, in Zepp v. Arthur Treacher Fish & Chips, Inc., the applicant voluntarily quit his position when the employer more than doubled his workload over two years of employment.  272 N.W.2d 262, 263 (Minn. 1978).  The supreme court held that the applicant quit for a good reason caused by the employer, as “the employer made unreasonable demands of [the] employee that no one person could be expected to meet.”  Id. (emphasis added).  Similarly, in Porrazzo v. Nabisco, Inc., the applicant quit after experiencing an increase in work responsibilities, which mandated overtime hours for which he was not adequately compensated.  360 N.W.2d 662, 663 (Minn. App. 1985).  In addition, the applicant’s superiors subjected him to criticism and harassment, and he suffered from stress headaches, had difficulty breathing, and became “generally irritable.”  Id.  Under these circumstances, this court held that the applicant quit for a good reason caused by the employer.  Id. at 664.

But situations “where the employee is simply frustrated or dissatisfied with his working conditions” do not constitute a good reason caused by the employer.  Portz v. Pipestone Skelgas, 397 N.W.2d 12, 14 (Minn. App. 1986) (finding applicant quit without good reason caused by employer when employer refuted applicant’s claims of discrimination and demonstrated that applicant was merely disgruntled with conditions of employment); see Ryks v. Nieuwsma Livestock Equip., 410 N.W.2d 380, 382 (Minn. App. 1987) (noting that dissatisfaction and irreconcilable differences alone are not good cause to quit); Markert v. Nat’l Car Rental, 349 N.W.2d 859, 861 (Minn. App. 1984) (holding that applicant quit because new schedule was inconvenient and was disqualified because this does not constitute good cause to quit).

The statute provides that the analysis is conducted on the specific facts of each case.  Minn. Stat. § 268.095, subd. 3(b) (2004).  Pomeroy advocates application of a heightened standard: whether the change in working conditions would compel the average, reasonable 56-year-old Fusion employee – i.e., Pomeroy – to quit and become unemployed.  This would remove the objective-reasonableness requirement from the statute and supplant it with a subjective standard.  However, this is not the law.  “The standard for determining good cause is that standard of reasonableness as applied to the average man or woman, and not to the supersensitive.”  Erb v. Comm’r of Econ. Sec., 601 N.W.2d 716, 718 (Minn. App. 1999) (quotation omitted); see also State v. Harris, 590 N.W.2d 90, 98 n.1 (Minn. 1999) (holding that the objective, reasonable person standard means a reasonable person under the circumstances, not a reasonable person in the party’s shoes; otherwise, the standard would become “unworkable”); Haskins v. Choice Auto Rental, Inc., 558 N.W.2d 507, 511-12 (Minn. App. 1997) (reversing and remanding the case for more findings where the court found that the commissioner’s representative did not correctly apply the reasonableness standard).  The statute clearly contemplates the application of an objective standard.  To receive benefits, Pomeroy must demonstrate not only that he found the change adverse to him but also that the changed conditions were sufficient to compel the average, reasonable worker to quit.  We note that Pomeroy makes no age-discrimination claim and, indeed, there is no evidence in the record to indicate that Pomeroy was treated differently because of his age.   

In addition, there is no evidence that Pomeroy experienced physical or mental ailments because of changes in the assembly line speed, or that his superiors criticized his work.  The entire assembly-line team was required to meet the new time requirements; it did not fall on the shoulders of any single employee.  Although Pomeroy claims his age was a significant consideration, there is substantial evidence that age was not a significant factor in determining ability to do the work in question, and that objectively viewed, the work conditions would not compel a reasonable employee to quit.[3]  Rather, there is evidence that Pomeroy voluntarily quit for personal reasons: he was unhappy with the work situation and decided another job was more attractive.  The SURJ did not err in concluding that Pomeroy quit without good cause attributable to Fusion.

II.        Motion to Strike

            Pomeroy moved to strike a portion of DEED’s brief, arguing that it refers to a document that is not in the record.  While conducting a de novo hearing on appeal, the SURJ may not consider any evidence outside the record established at the evidentiary hearing before the ULJ.  Minn. Stat. § 268.105, subd. 2(d) (2004) (“A [SURJ] shall not, except for purposes of deciding whether to remand a matter to an [ULJ] for a further evidentiary hearing, consider any evidence that was not submitted at the hearing before the [ULJ].”) (emphasis added); see also Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988) (“An appellate court may not base its decision on matters outside the record on appeal, and may not consider matters not produced and received in evidence below.”); Haskins, 558 N.W.2d at 512 n.4.

Pomeroy moved to strike footnote three on page seven of DEED’s brief, as well as the sentence that precedes the footnote.  The document referred to in the footnote is a letter from Fusion’s human-resources manager to the SURJ, seeking review and reversal of the ULJ’s decision.  Any consideration of that document was improper for two reasons.  First, Pomeroy lacked an opportunity to respond to the assertions in the letter, as he was never provided with a copy.  Second, the letter attempts to introduce new facts into the record, which the clear language of the statute prohibits.  Therefore, we grant Pomeroy’s motion to strike this material, as this court will generally “strike documents in a brief that are not part of the appellate record.”  State v. Dalbec, 594 N.W.2d 530, 533 (Minn. App. 1999).

In addition, Pomeroy urges this court to find that the presence of this letter in the record constitutes a violation of his right to procedural due process and requires remand for a further evidentiary hearing where Pomeroy can respond to the factual assertions made in the letter.  In the criminal context, when an individual suffers a deprivation of a constitutional right as a result of an evidentiary ruling, the state must show that the error was “harmless beyond a reasonable doubt.”  State v. Richardson, 670 N.W.2d 267, 277 (Minn. 2003).  In most other contexts, evidentiary rulings will only be overturned if there is a reasonable probability that the wrongfully admitted evidence significantly affected the verdict.  State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994).  This is not a criminal case; therefore, application of the rigid constitutional standard in Richardson would not be appropriate.  In Portz, this court addressed the problem of non-record evidence in an unemployment-compensation proceeding.  397 N.W.2d at 14.  We stated that, because the SURJ’s written findings and conclusions referred to record evidence only, there was no prejudice to the relator even if the SURJ had viewed evidence not before the ULJ.  Id.  Here, the SURJ’s findings of fact are reasonably supported by the evidence properly received in the record, and there is no evidence that the SURJ improperly relied on the letter in question.  We conclude that the non-record evidence does not require a reversal or a remand.

            Affirmed; motion granted.