STATE OF MINNESOTA

IN COURT OF APPEALS

A06-359

Richard E. Misel, Jr.,

Relator,

vs.

Lakeside Protection, Inc.,

Respondent,

Department of Employment and Economic Development,

Respondent.

Filed September 19, 2006

Affirmed

Ross, Judge

Department of Employment and Economic Development

File No. 7871 05

Richard E. Misel, Jr., 2734 18th Street Northwest, Baudette, MN 56623-8889 (pro se relator)

Lakeside Protection, Inc., 4113 Wildwood Drive Northwest, Williams, MN 56686 (respondent)

Linda A. Holmes, Lee B. Nelson, 1st National Bank Building, 332 Minnesota Street Suite E-200, St. Paul, MN 55101-1351 (for respondent Department of Employment and Economic Development)

Considered and decided by Ross, Presiding Judge; Shumaker, Judge; and Wright, Judge.

UNPUBLISHED OPINION

ROSS,Judge

In this certiorari appeal, relator Richard Misel challenges the unemployment law judge’s decision that he quit without good reason caused by his employer and that he was disqualified from receiving unemployment benefits. Because the record contains substantial support for the unemployment law judge’s findings of fact and the conclusions of law are not erroneous, we affirm.

FACTS

Richard Misel quit his full-time job as a security officer for respondent Lakeside Protection, Inc., on April 24, 2005. His letter of resignation gave economic and other circumstances as his reasons for quitting. He cited the increasingly high cost of transportation, stated that he had no money to repair his or his wife’s vehicle, and complained that they both had to use his father’s truck for transportation. Misel applied to the Department of Employment and Economic Development for unemployment benefits. The department adjudicator determined that Misel had quit his job without good reason caused by Lakeside. On appeal, the unemployment law judge (ULJ) reached the same conclusion and later affirmed the decision after reconsideration. Misel challenged that decision through a writ of certiorari, but when the department found that the hearing could not be fully transcribed, this court remanded the case for a new hearing. The ULJ again determined that Misel quit without good reason caused by Lakeside and that he was disqualified from receiving unemployment benefits. The ULJ then affirmed on reconsideration. The present certiorari appeal follows.

DECISION

Misel challenges the ULJ’s determination that he quit employment without good cause and is therefore disqualified from receiving unemployment benefits. This court may reverse or modify the ULJ’s decision if Misel’s substantial rights have been prejudiced because the findings, inferences, conclusion, or decision are affected by legal error or are unsupported by substantial evidence. Minn. Stat. § 268.105, subd. 7(d)(5) (Supp. 2005). Whether an employee has good cause to quit is a question of law reviewed de novo. Peppi v. Phyllis Wheatley Cmty. Ctr., 614 N.W.2d 750, 752 (Minn. App. 2000). But we defer to the ULJ’s credibility determinations and the ULJ’s weighing of evidence. See Jenson v. Dep’t. of Econ. Sec., 617 N.W.2d 627, 631 (Minn. App. 2000), review denied (Minn. Dec. 20, 2000) (relying on credibility determinations); Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995) (refusing to reweigh conflicting evidence). We will not disturb the ULJ’s fact findings that are supported by the evidence. Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002) (noting narrow review standard applied to findings of DEED’s predecessor agency, the Department of Economic Security).

An applicant who quits employment is disqualified from receiving unemployment benefits unless the applicant falls within a statutory exception. Minn. Stat. § 268.095, subd. 1 (Supp. 2005). One exception occurs when the applicant quits because of a “good reason caused by the employer.” Id. § 268.095, subds. 1(1) (Supp. 2005), 3 (2004). A good reason caused by the employer is one that is (1) directly related to the employment and for which the employer was responsible; (2) adverse to the worker; and (3) would compel an average, reasonable worker to quit and become unemployed rather than remaining in the employment. Id., subd. 3(a). If the applicant was subjected to adverse working conditions, he must complain to the employer and give the employer a reasonable opportunity to correct the adverse condition before quitting. Id., subd. 3(c).

We first address whether Lakeside’s failure to follow the terms of its policy manual gave Misel good reason to quit. Misel contends that Lakeside failed to follow the terms of employment set out in a policy manual effective June 1, 2003, which provides for employee performance reviews every six months, with raises, if any, based on the reviews.

According to Misel, he received only one review and one raise under the policy and Lakeside otherwise did not follow it. This court has held that an employer’s breach of its unconditioned promise to raise an employee’s wages provides good cause to resign. Hayes v. K-Mart Corp., 665 N.W.2d 550, 553 (Minn. App. 2003), review denied (Minn. Sept. 24, 2003). But the ULJ found that Lakeside did not promise Misel any raises because any raise would be conditioned on other factors under the policy. We agree.

The ULJ found that in early 2003—four years after Misel began work at Lakeside—Lakeside issued a new policy indicating that it would conduct a performance review every six months and that employee raises would depend on the review. After a short time, however, Lakeside’s owner determined that the policy was infeasible and its supervisors stopped following the schedule. The policy sets out a point system for assessing job performance and provides that certain points trigger specified hourly wage increases. But it also provides for no wage increase in the case of low-performance points. Additionally, it limits wage increases for years in which the company receives no increase in payments from its sole security client; in that event, Lakeside employees would receive raises only “on a percentage basis.” Unlike the employee in Hayes, Misel was never unconditionally promised that he would receive any raises.

The ULJ made two additional findings that undermine Misel’s contention that Lakeside failed to keep its alleged wage-increase promises to him. The ULJ found that in 2002 and 2003, Lakeside’s sole security client did not increase its payments to Lakeside. The ULJ also determined that Lakeside had given Misel three significant raises during the relevant period. In January 2003, Lakeside raised Misel’s wages from $8.70 per hour to $9.00. In August 2003, Lakeside raised Misel’s wages to $9.25. And in August 2004, Lakeside raised Misel’s wages by $1.00, to $10.25 per hour. These findings, which are fully supported in the record, establish that Misel received wage increases in excess of the increases the policy might have required for this period. Even assuming retroactive application of the policy, Misel received a 30-cent raise in January 2003, while the policy would afford no specific increase because Lakeside’s security client had not increased its payments to Lakeside. Lakeside gave Misel a 25-cent increase in August 2003, while the policy again directed no specific increase. Misel received no increase six months later, but again, the policy directed no specific wage increase for the period for the same reason. Finally, Misel’s $1.00 raise in August 2003 exceeds any specific wage increase that he asserts was promised by Lakeside’s policy, even speculating that he would have achieved a perfect 100-point evaluation during his hypothetical six-month reviews for that period.

Lakeside did not promise Misel a wage increase every six months, and Lakeside gave Misel wage increases during the challenged period. The ULJ’s decision that the alleged wage-promise breach did not provide Misel a good reason to quit caused by Lakeside is supported by substantial evidence and is not erroneous as a matter of law.

We next address Misel’s claim that a new schedule gave him good reason to quit. An employee who is subject to adverse conditions by an employer must complain and give the employer a reasonable opportunity to correct the conditions before they may be considered good reason caused by the employer to quit. Minn. Stat. § 268.095, subd. 3(c). The ULJ found that Lakeside asked the security officers, including Misel, whether they would be willing to experiment with a new schedule, and that Misel consented.

Misel challenges these findings, claiming that he had voiced his objections to the proposed schedule before he eventually consented. He contends also that Lakeside knew that the schedule would create difficulties for him. But the ULJ did not credit this testimony, and the findings are supported by substantial evidence, which we will not reweigh. The ULJ’s supported finding that Misel did not complain about the schedule to Lakeside defeats Misel’s contention that the change in schedule gave him good reason to quit.

Misel raises several additional issues, which we have reviewed. None provides a basis for reversal. We therefore affirm the ULJ’s disqualification determination.

Affirmed.