A06-1055

Tony Kortas,

Relator,

vs.

Advanced Communication Design, Inc.,

Respondent,

Department of Employment

and Economic Development,

Respondent.

Filed June 26, 2007

Affirmed

Hudson, Judge

Department of Employment

and Economic Development

File No. 17900 05

Tony J. Kortas, 4308 Fourth Street Northeast, Number 5, Columbia Heights, Minnesota 55421 (pro se relator)

Michael J. Moberg, Briggs and Morgan, P.A., 2200 IDS Center, 80 South Eighth Street, Minneapolis, Minnesota 55402 (for respondent employer)

Lee B. Nelson, Linda A. Holmes, Minnesota Department of Employment and Economic Development, First National Bank Building, 332 Minnesota Street, Suite E200, St. Paul, Minnesota 55101-1351 (for respondent department)

Considered and decided by Lansing, Presiding Judge; Halbrooks, 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 unemployment law judge’s (ULJ) determination that he was disqualified from receiving unemployment benefits because he quit employment without good reason caused by the employer. Relator argues that (a) he was discharged and did not quit; (b) the initial determination by the department that he had been discharged for misconduct was incorrect; and (c) the department’s initial decision that relator was discharged for misconduct and the decision on appeal to the ULJ that he voluntarily quit are inconsistent. Because the ULJ’s findings and decision are supported by substantial evidence and are not arbitrary or capricious, we affirm.

FACTS

Relator Tony Kortas began working at respondent Advanced Communication Design (ACD) in January 1999. Relator separated from his employment on October 19, 2005. On October 17, two days before his separation from employment, relator was given an assignment to match approximately 300 CD and video titles with cover artwork from the internet. He completed 169 matches on October 17 and two matches on October 18. On October 19, relator did not complete any matches, and other ACD employees reported that he was sitting idle at his desk. Relator stated that he did not complete any additional matches because no more matches could be made, but he admitted that this was unusual because he was generally able to match 95-100% of the titles on any given list. After relator left the company, another employee was able to match all of the remaining titles on relator’s list.

In the late afternoon of October 19, relator’s supervisors met with relator to discuss his performance issues. One of his supervisors told relator that his lack of performance was “no longer [going to] be tolerated” and that he needed to stay late that evening to complete the work he failed to complete during the day. Relator was asked to sign a document indicating his agreement to improve his performance and told that, in the future, he would be required to sign a document that detailed his daily quotas. Relator was told that “if he did not want to meet his quota, that he could leave the company.” Relator refused to stay late and refused to sign any document. Relator maintains that he was told he would have to stay late or he would be fired, but others who attended the meeting stated that the supervisor did not use those exact terms. Relator later claimed that he could not work late because he had a massage appointment scheduled for that evening, although he did not mention the appointment to any of his supervisors during the meeting.

One of relator’s supervisors stated that after leaving the meeting, relator told her that he was “leaving the company,” gave her his office key, packed up his personal belongings, and left. Relator maintains that his supervisor asked him for his office key and escorted him from the building.

On November 11, 2005, a Department of Employment and Economic Development (DEED) adjudicator determined that relator was discharged from his employment for employment misconduct and was disqualified from receiving unemployment benefits. Relator appealed that decision. Following a telephone-conference hearing, an unemployment law judge (ULJ) issued a decision on February 15, 2006, concluding that relator was disqualified from receiving unemployment benefits because he quit his employment without good reason caused by his employer. Relator requested reconsideration of the ULJ’s decision; on May 2, 2006, the ULJ affirmed his findings of fact and decision. This certiorari appeal follows.

D E C I S I O N

Relator challenges the ULJ’s determination that he quit his employment and argues that the ULJ’s decision was not supported by the evidence.

A person who quits employment without a good reason caused by the employer is disqualified from receiving unemployment benefits. Minn. Stat. § 268.095, subd. 1(1) (Supp. 2005). An employee quits employment when the decision to end employment is his or her own. Id., subd. 2(a) (2004). A discharge occurs when an employer’s words or actions would lead a reasonable employee to believe that he or she is no longer allowed to work for the employer in any capacity. Id., subd. 5(a) (2004). A discharged employee qualifies for unemployment benefits unless the employee was discharged for employment misconduct or aggravated employment misconduct. Id., subd. 4 (Supp. 2005). Whether an employee quit employment or was discharged is a question of fact. Midland Elec., Inc. v. Johnson, 372 N.W.2d 810, 812 (Minn. App. 1985).

On certiorari appeal, this court may affirm the decision of the ULJ or remand for further proceedings, or it may reverse or modify the decision

if the substantial rights of the petitioner may have been prejudiced because the findings, inferences, conclusion, or decision are:

(1) in violation of constitutional provisions;

(2) in excess of the statutory authority or jurisdiction of the department;

(3) made upon unlawful procedure;

(4) affected by other error of law;

(5) unsupported by substantial evidence in view of the entire record as submitted; or

(6) arbitrary or capricious.

Minn. Stat. § 268.105, subd. 7(d) (2006). Substantial evidence means “(1) such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; (2) more than a scintilla of evidence; (3) more than some evidence; (4) more than any evidence; or (5) the evidence considered in its entirety.” Minn. Ctr. for Envtl. Advocacy v. Minn. Pollution Control Agency, 644 N.W.2d 457, 466 (Minn. 2002). We view the ULJ’s factual findings in the light most favorable to the decision and will not disturb findings that are sufficiently supported by the record. Ress v. Abbott Nw. Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989). Finally, an appellate court will “defer to an agency’s conclusions regarding conflicts in testimony . . . .” In re Excess Surplus Status of Blue Cross & Blue Shield of Minn., 624 N.W.2d 264, 278 (Minn. 2001).

At the meeting that was held to discuss his performance, relator was told to stay late to complete his work and begin meeting his daily quotas. Instead, after the meeting, relator apparently told his supervisor that he was leaving the company, voluntarily gave her his office key, packed up his personal belongings, and left. These actions indicate that it was relator’s decision to leave his employment. Although the record shows that relator had an appointment for a massage that conflicted with his employer’s request to work overtime, he failed to notify his employer of this fact. These circumstances would not lead a reasonable employee to believe that he or she is no longer allowed to work for the employer in any capacity. See Minn. Stat. § 268.095, subd. 5(a) (2004) (stating that “discharge 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”). We conclude that the ULJ’s finding that relator voluntarily quit his employment is supported by substantial evidence and is not arbitrary or capricious.

Relator does not specifically argue that the ULJ’s conclusion that he quit without good reason caused by ACD is erroneous. But because this is implicit in his certiorari appeal of the ULJ’s decision, we address it here. An employee who quits is disqualified from receiving unemployment benefits, but an exception to disqualification applies when the employee “quit the employment because of a good reason caused by the employer.” Id., subd. 1(1) (Supp. 2005). “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); Minn. Stat. § 268.095, subd. 3(g) (2004) (providing that statutory definition is exclusive and that no other definition shall apply).

A good reason caused by the employer for quitting 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). “[T]here must be some compulsion produced by extraneous and necessitous circumstances.” Ferguson v. Dep’t of Employment Servs., 311 Minn. 34, 44 n.5, 247 N.W.2d 895, 900 n.5 (1976). The “reasonable-worker” standard is objective and is applied to the average person rather than the super-sensitive. Id. A good reason to quit caused by the employer “does not encompass situations where an employee experiences irreconcilable differences with others at work or where the employee is simply frustrated or dissatisfied with his working conditions.” Portz v. Pipestone Skelgas, 397 N.W.2d 12, 14 (Minn. App. 1986). “The determination that an employee quit without good reason [caused by] the employer is a legal conclusion, but the conclusion must be based on findings that have the requisite evidentiary support.” Nichols v. Reliant Eng’g & Mfg., Inc., 720 N.W.2d 590, 594 (Minn. App. 2006). This court reviews questions of law de novo. Jenkins v. Am. Express Fin. Corp., 721 N.W.2d 286, 289 (Minn. 2006).

Here, relator did not present any evidence showing that there was good reason for him to quit. Aside from vague suggestions that his employer was “targeting” him, relator does not allege any unreasonable conduct by his employer, and the record does not support such a finding. Instead, the record shows that relator was a difficult employee and that his supervisors gave him many opportunities to improve his job performance. The ULJ did not err by concluding that relator quit his job without good reason caused by his employer.

Relator also argues that the Department of Employment and Economic Development (DEED) adjudicator erred by concluding that he was discharged from employment for employment misconduct. We decline to consider this issue on certiorari appeal because this court reviews the decision of the ULJ, not that of the DEED adjudicator. Minn. Stat. § 268.105, subd. 7(d). Furthermore, the ULJ did not reach the issue of whether relator was discharged for employment misconduct. The ULJ made no factual findings regarding employment misconduct, and, during the telephone-conference hearing, the ULJ specifically limited the testimony to that concerning whether relator quit or was discharged.

Finally, relator argues that he is entitled to reversal because the decisions of the DEED adjudicator and the ULJ are inconsistent. A ULJ reviews a DEED adjudicator’s decision regarding unemployment benefits de novo. Minn. Stat. § 268.105, subd. 1 (Supp. 2005). Therefore, the ULJ does not consider the findings or conclusions made by the DEED adjudicator, and whether the ULJ’s decision is consistent with the decision of the DEED adjudicator is irrelevant.

Affirmed.