Susan L. Neumeyer, Hanbery, Neumeyer & Carney, P.A., 3725 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402 (for respondent employer)

Kent E. Todd, Minnesota Department of Economic Security, 390 North Robert Street, St. Paul, MN 55101 (for respondent Commissioner of Economic Security)

Considered and decided by Randall, Presiding Judge, Davies, Judge, and Anderson, Judge.

Relator challenges the commissioner's representative's decision denying him reemployment insurance benefits. Relator asserts that the commissioner's representative erred in determining that relator quit and argues that his employer terminated his employment. We reverse.

On March 5, Burton met with the owner and two other representatives of QA. Burton expressed his desire to be promoted to a management position. It is disputed whether Burton refused to return to work as a press operator when he was informed that a management position was not available. The meeting ended with the owner telling Burton that he would think the matter over and get back to him.

On March 6, Burton met with a vice-president and two other QA representatives. QA claims, and the commissioner's representative determined, that Burton was asked whether he would return to work and resume employment as a press operator with his supervisor and co-worker, to which Burton allegedly replied he would not. At this time Burton was given a letter offering him a severance package. Burton then asked if he would be allowed to work if he agreed to continue operating the press. The QA vice-president said, "No."

The Department of Economic Security initially determined that Burton was not disqualified from reemployment insurance benefits because QA did not meet its burden of proof. The department concluded that Burton's separation was involuntary and for reasons other than willful misconduct. QA appealed this decision, and an evidentiary hearing was held before a reemployment judge. The reemployment judge affirmed the initial determination of the Department of Economic Security. QA appealed to the commissioner's representative, who reversed, finding that Burton quit for reasons other than a good reason caused by the employer.

N.W.2d 50, 51 (Minn. 1995). Findings of fact determined by the commissioner's representative must

be reviewed in the light most favorable to the decision, and should not be overturned if there is evidence in the record that reasonably tends to sustain those findings.

Fujan v. Ruffridge-Johnson Equip., 535 N.W.2d 393, 395 (Minn. App. 1995) (citation omitted). The ultimate determination of whether an employee was properly disqualified from receiving reemployment insurance benefits is a question of law on which a reviewing court may exercise its independent judgment. Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996).

It is the employer's burden to prove an employee voluntarily terminated his employment. Lopez v. Owatonna Mfg. Co., 304 N.W.2d 647, 649 (Minn. 1981). Whether or not an employee quit is a question of fact. Midland Elec., Inc. v. Johnson, 372 N.W.2d 810, 812 (Minn. App. 1985).

Minn. Stat. § 268.095, subd. 2 (1998), provides:

A quit from employment occurs when the decision to end the employment was, at the time the employment ended, the employee's. An employee who seeks to withdraw a previously submitted notice of quitting shall be considered to have quit the employment if the employer does not agree that the notice may be withdrawn.

Minn. Stat. § 268.095, subd. 5 (1998), provides:

A discharge from employment occurs when any words or actions by an employer would lead a reasonable employee to believe that the employee's services are no longer desired by the employer.

The commissioner's representative found that by his words and actions, Burton quit his employment with QA, then indicated a desire to continue employment, and QA refused to allow Burton to withdraw his resignation. Burton disputes this finding and contends that he was fired.

The evidence in the record does not reasonably support the commissioner's representative's finding that Burton quit his employment. Instead, the evidence supports a finding that Burton was fired. The commissioner's representative's finding that Burton simply quit his job contradicts the testimony by both Burton and QA. In the evidentiary hearing before the reemployment judge, Elaine Pattison, on behalf of QA, testified, "Maybe we made the decision that he should be terminated." She goes on to say, "I mean maybe it can be interpreted then that we terminated him rather than accept his resignation * * * ." This is a statement against QA's best interest, giving it a good degree of credibility. Further, the record shows that when Burton arrived at QA for his meeting on March 5, his security code had been changed so he could not enter the building. Additionally, when he returned to QA on March 6 to continue discussions regarding his employment, a severance package had already been prepared for him. The letter describing the severance package begins, "This letter is to confirm the terms we have agreed to in connection with termination of your employment with [QA]." QA agreed in the letter not to contest Burton's claims for reemployment benefits.[2]

The commissioner's representative's decision that Burton simply quit has little support in the record except for QA's inconsistent testimony. Thus, the evidence does not reasonably support the commissioner's representative's determination that Burton quit.

32, 34 (Minn. App. 1997) (stating employer has burden of showing claimant discharged for disqualifying misconduct).

The evidence does not support the commissioner's representative's determination that Burton quit his employment. The employer has not met its burden of demonstrating that Burton committed disqualifying misconduct. The commissioner's representative erred in concluding that Burton is disqualified from receiving reemployment insurance benefits.

Reversed.

[1] Before 1995, evidentiary hearings were held before a referee rather than a reemployment judge. 1995 Minn. Laws ch. 54 § 11.

[2] Burton also claims that QA is violating the terms of its own agreement because it is contesting his claim for reemployment benefits. Burton never signed the agreement contained in the severance package, however, and he declined to accept it. Thus, his present reliance on provisions contained in an unsigned document is moot. Despite this, the fact that QA prepared the document supports Burton's argument that he was terminated.