This opinion will be unpublished and
Leland W. Jacobs, Relator, vs. Comfort Bus Company, Inc., Respondent, Commissioner of Economic Security, Respondent.
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Leland W. Jacobs,
Comfort Bus Company, Inc.,
Commissioner of Economic Security,
Filed April 1, 1997
Department of Economic Security
File No. 5210UC96
Leland W. Jacobs, 1616 Sloan Street, #3, St. Paul, MN 55101 (Pro Se Relator)
Comfort Bus Company, Inc., 3101 Spruce Street, Little Canada, MN 55117 (Pro Se Respondent)
Kent E. Todd, 390 North Robert Street, St. Paul, MN 55101 (for Respondent Department of Economic Security)
Considered and decided by Lansing, Presiding Judge, Crippen, Judge, and Mulally, Judge.[*]
U N P U B L I S H E D O P I N I O N
The Commissioner's representative denied a bus driver's claim for reemployment insurance benefits, concluding that the driver had failed to make reasonable efforts to continue his employment with the bus company. We affirm the representative's decision and reject the driver's claim that his constitutional rights were violated by the department's procedures.
F A C T S
In May 1996 Leland Jacobs received a traffic ticket while driving a school bus route for Comfort Bus Company. Shortly thereafter, Jacobs separated from employment with the bus company. The bus company claimed that Jacobs had agreed to drive another similar route, but failed to show up for work or call to explain his absence. Jacobs claimed that he did not receive a firm offer for another route and that he called the bus company a number of times but did not receive a call telling him to come to work. The Commissioner's representative found that continuing work was available, but Jacobs did not make reasonable attempts to contact the bus company or return its telephone calls.
D E C I S I O N
A separation from employment is voluntary when an employee "no longer desires to remain in the relationship of an employee with the employer from whom he has separated." Bergseth v. Zinsmaster Baking Co., 252 Minn. 63, 66, 89 N.W.2d 172, 174 (1958). We have previously held that an employee's separation was voluntary when the employee was not discharged and continuing work was made available to the employee. Danielson Mobil, Inc. v. Johnson, 394 N.W.2d 251, 253 (Minn. App. 1986).
Whether an employee was involuntarily discharged or voluntarily quit is usually a question of fact. County Market v. Dahlen, 396 N.W.2d 81, 82 (Minn. App. 1986). The Commissioner's representative's factual findings may be reversed only if there is no evidence reasonably tending to sustain them. White v. Metropolitan Medical Ctr., 332 N.W.2d 25, 26 (Minn. 1983).
Jacobs challenges the evidence submitted by the bus company's witnesses. But the record contains evidence which, if found credible, supports the Commissioner's representative's finding that Jacobs quit his job by choosing not to pursue available work. Questions of credibility are resolved by the Commissioner's representative, not by an appellate court. See Semanko v. Department of Employment Servs., 309 Minn. 425, 428, 244 N.W.2d 663, 665 (1976). In our review we are not permitted to re-weigh the evidence to determine where the preponderance lies; rather, we examine the evidence to determine whether it reasonably supports the Commissioner's representative's decision. Nyberg v. R.N. Cardozo & Bro., 243 Minn. 361, 364, 67 N.W.2d 821, 823 (1954).
Because evidence that the Commissioner's representative found credible supports the conclusion that Jacobs voluntarily discontinued his employment, we are compelled to accept the Commissioner's determination on that issue. See Cary v. Custom Coach, Inc., 349 N.W.2d 331, 332 (Minn. App. 1984).
Jacobs contends that the department's procedures violated his rights to equal protection and due process. Jacobs claims that he is a member of a class consisting of persons with limited income and education, whose rights are unprotected by the department. The department's rules, however, specifically provide for the protection of parties' rights. See Minn. R. 3310.2921 (1995). There is no evidence in the record that the department failed to comply with its rules. Contrary to Jacobs's claim that the hearing was rushed, at the end of the hearing, he replied "no" to the question whether he had anything further to add. Furthermore, the judge qualified an earlier statement that he had another hearing scheduled and that the parties should "move along," by stating: "I can go over a little bit, I went over my last hearing."
Jacobs claims that he was denied due process because he was denied discovery, the witnesses were not sequestered, and he did not receive a court trial. The department's rules state that discovery is authorized and set forth procedures for obtaining subpoenas and for other discovery of information. Minn. R. 3310.2914 (1995). Jacobs did not seek discovery. In addition there is no evidence in the record that Jacobs requested that the witnesses be sequestered, or that such a request would have been futile.
Finally, Jacobs has cited no authority for his claim that the department's procedures sought to "punish" him without a court trial. See Schoepke v. Alexander Smith & Sons Carpet Co., 290 Minn. 518, 519-20, 187 N.W.2d 133, 135 (1971) (ordinarily, court will not consider assignment of error based on mere assertion and unsupported by argument or authorities). When an employee has an opportunity to be heard, in accordance with the department's statutes and rules, due process requirements are satisfied. See Olson v. Starkey, 259 Minn. 364, 374, 107 N.W.2d 386, 392 (1961).
[ ]* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.