This opinion will be unpublished and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

A05-1646

 

 

Tommie A. Davis,

Relator,

 

vs.

 

EE-Jay Motor Transport, Inc.,

Respondent,

 

Department of Employment and Economic Development,

Respondent.

 

 

Filed March 28, 2006

Affirmed

Hudson, Judge

 

Department of Employment and Economic Development

File No. 204205

 

 

Tommie A. Davis, Post Office Box 249, Buhl, MN 55713 (pro se relator)

 

EE-Jay Motor Transport, Inc., ATTN Tom Imlay, 1501 Lincoln Avenue, East St. Louis, IL 62204-1041 (respondent)

 

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

 

            Considered and decided by Peterson, Presiding Judge; Klaphake, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

HUDSON, Judge

            Relator challenges the senior unemployment review judge’s determinations that he was not discharged but rather voluntarily quit his employment and that he did not have a good reason caused by his employer for quitting.  Because these determinations are reasonably supported in the record, we affirm.

FACTS

Relator Tommie Davis was employed by respondent EE-Jay Motor Transport Inc. from November 2003 until October 2004.  After a data-processing error at the payroll service respondent employed resulted in delaying relator’s pay increase, he chose to be paid with paper checks mailed to him instead of by direct deposit.  Friday was payday; relator generally received his check on Saturday or Monday. 

            Although respondent’s records indicated that the check to pay relator for the pay period ending on Friday, October 1, was mailed on Wednesday, September 29, on Monday, October 4, 2004, relator told respondent he had not received the check.  He was asked to wait a few days.  On Wednesday, October 6, when relator still had not received the check, respondent issued a stop payment on it and planned to mail relator another check.  On Thursday, October 7, when respondent was waiting for confirmation of the stop payment in order to issue a new check, relator became upset.  Respondent offered to send the new check by Federal Express so relator would have it on Friday, October 8.  Relator said that this was not good enough, that he had lost $85 as a result of not having the check on time, and that he would not work until the problem was solved.  After relator said he would not work, he was asked to turn in his keys and his company gas card.  He never returned to work.  He did receive the missing check.

            Relator applied for unemployment benefits on the ground that he had quit for a good reason caused by his employer.  A department adjudicator determined that relator was not entitled to benefits because he had quit his employment without a good reason caused by his employer.  Relator appealed and, during the telephone hearing, argued both that he had been discharged and that, if he quit, he had a good reason caused by his employer.  After de novo review, an unemployment law judge (ULJ) stated the issue was “Whether the applicant quit or was discharged,” concluded that “[Relator] made the decision to end the employment at the time his employment ended,” and decided that “[Relator] quit his employment because of a good reason caused by [respondent].”  Respondent appealed, and, following de novo review, a senior unemployment review judge (SURJ) concluded that relator quit because he testified that he told respondent he “would not work until his paycheck problem was straightened out” and that “the average reasonable worker would [not] quit work and join the ranks of the unemployed under similar circumstances.”  Relator challenges that determination.

D E C I S I O N

            On certiorari appeal, relator argues only that he was discharged; he does not challenge the determination that he did not have a good reason to quit caused by his employer and has therefore arguably waived that issue.  See Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn. 1982) (stating that issues not briefed on appeal are waived).  But relator appears pro se, and courts have a duty to allow reasonable accommodation to pro se litigants so long as no prejudice results.  Kasson State Bank v. Haugen, 410 N.W.2d 392, 395 (Minn. App. 1987).  Respondent’s brief addresses both issues, so no prejudice results from our considering both.

1.         Quit or Discharge

            “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).  Factual findings are not disturbed if the evidence reasonably tends to sustain them.  Schmidgall v. Filmtec Corp., 644 N.W.2d 801, 804 (Minn. 2002). 

“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(a) (2004).  In contrast, “[a] discharge from employment 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.”  Minn. Stat. § 268.095, subd. 5(a) (2004).  Relator argues that he was discharged because he was told to turn in his keys and company credit card and to leave the company property.  But his own testimony shows that he quit, not that he was discharged.  When relator was asked, “So you told [respondent’s supervisor] that you were not coming back until you got a paycheck straightened out?” he answered, “Right.  Then after that, that’s when they told me to turn in my stuff [key and company credit card] and leave the property.”  Thus, respondent’s directive to turn in his company property and leave was a response to relator’s statement that, until he received his check, he would not work for respondent any longer.  The decision to end relator’s employment at the time it ended was relator’s.

2.         Quit for good reason caused by the employer

            The determination that an employee quit without a good reason caused by the employer is a legal conclusion, but it must be based on findings that have the requisite evidentiary support.  See Zepp v. Arthur Treacher Fish & Chips, Inc., 272 N.W.2d 262, 263 (Minn. 1978) (interpreting equivalent language in a predecessor statute).  While this court defers to findings of fact if they are reasonably supported by the evidence in the record, the court exercises its independent judgment with respect to questions of law.  Ress v. Abbott Nw. Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).

            A good reason for quitting caused by the employer is a reason that is directly related to the employment and within the employer’s sphere of responsibility; that is adverse to the employee; and that would compel an average, reasonable worker to quit and become unemployed rather than remain in employment.  Minn. Stat. § 268.095, subd. 3(a) (2004).  Relator expected to receive a check on Saturday or Monday.  When he did not receive a check on Thursday, only four or six days after he would have expected it, and was assured that he would have a check on Friday, less than a week after he would first have expected it, he quit.  While not receiving his check on time was directly related to relator’s employment and was adverse to relator, a delay of less than a week in receiving a check would not compel an average, reasonable worker to quit and become unemployed.  An average, reasonable worker might have asked either for reimbursement of the expense incurred by the delay or for an advance.  Relator did neither; he said he would not work until he had his check.  He quit without a good reason caused by his employer.  See Portz v. Pipestone Skelgas, 397 N.W.2d 14 & n.1 (Minn. App. 1986) (holding that delay in receiving a paycheck, even when coupled with unsatisfactory working conditions, did not provide good cause attributable to the employer and distinguishing Wonder Indus., Inc. v. Marohn, 345 N.W.2d 272 (Minn. App. 1984) (holding that an employee’s inability to cash paychecks was good cause attributable to the employer)).

Affirmed.