Debra Broms, Relator, vs. U.S. Department of Agriculture/ Agricultural Marketing Service, Respondent, Department of Employment and Economic Development, Respondent.
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This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2008).
STATE OF MINNESOTA
IN COURT OF APPEALS
U.S. Department of Agriculture/
Agricultural Marketing Service,
Department of Employment and Economic Development,
Filed March 2, 2010
Department of Employment and Economic Development
File No. 21955575-3
Debra L. Broms, Savage, Minnesota (pro se relator)
U.S. Department of Agriculture, Agricultural Marketing Service, Minneapolis Financial
Services Branch, Minneapolis, Minnesota (respondent)
Lee B. Nelson, Amy R. Lawler, Department of Employment and Economic
Development, St. Paul, Minnesota (for respondent Department)
Considered and decided by Toussaint, Chief Judge; Johnson, Judge; and Crippen,
Retired judge of the Minnesota Court of Appeals, serving by appointment
pursuant to Minn. Const. art. VI, § 10.
Debra Broms quit her job after her employer proposed to demote her to a lowerlevel position with a lesser salary. An unemployment law judge (ULJ) determined that
Broms is ineligible to receive unemployment benefits because she quit without a good
reason caused by her employer. The ULJ’s determination is based on factual findings
that the employer had merely proposed the demotion but had not yet made a decision to
demote Broms, and that Broms chose to quit in order to avoid a blemish on her
employment history. We conclude that substantial evidence supports the ULJ’s findings
and, therefore, affirm.
Broms was employed by the United States Department of Agriculture (USDA) as
an accountant in its Minneapolis Financial Services Branch office.
She began her
employment there in 2003. In late 2007, Broms’s supervisor expressed dissatisfaction
with her performance and began to impose various forms of progressive discipline. In
July 2008, Broms’s supervisor placed her on a performance improvement plan that
required her to improve in the areas of customer service, certification of payments, and
On January 12, 2009, Thomas Grahek, the branch chief of the Minneapolis
Financial Services Branch, met with Broms and gave her written notice of a proposal to
demote her from her current position, a Level GS-12.6 position in the federal civil service
scheme, to a Level GS-9.1 position. See 5 C.F.R. § 432.101-.107 (2009) (prescribing
procedures for demoting employee in federal civil service). At the time, Broms’s annual
salary in the Level GS-12.6 position was $83,383. She testified that the demotion would
have reduced her salary by approximately $32,000, which was approximately 38% of her
then-current salary. At the January 12 meeting, Grahek reviewed the demotion proposal
with Broms and told her that it was a proposal. Broms acknowledged at the agency
hearing that the demotion document was a proposal and that she had ten days in which to
respond. The notice of proposal also stated that she could be represented by an attorney
or other representative, that no decision would be made until all of the evidence was
received, and that she would be given a written notice of decision with specific reasons
for the decision. Mary Rucke, the assistant branch chief for employee relations, testified
that the written decision also would include the employee’s right to appeal to the United
States Merit Systems Protection Board.
On January 22, 2009, Broms submitted a written response to the proposal and,
simultaneously, submitted notice of her resignation, effective February 1, 2009. After
receiving Broms’s response and notice of resignation, Dave Root, the branch chief for
employee relations, was concerned that Broms did not understand the process. He called
Broms on several occasions but did not reach her. Root then asked Rucke to call Broms.
Rucke did so but did not reach Broms and left her a voice-mail message stating that the
notice of proposed demotion was merely a proposal and that no final decision had been
made. Broms did not return Rucke’s call.
After her resignation became effective, Broms applied for unemployment benefits.
In February 2009, DEED denied her application because it determined that she quit her
job without a good reason caused by her employer. Broms filed an administrative appeal.
A ULJ conducted a telephonic hearing.
witnesses called by USDA.
Five witnesses testified: Broms and four
In March 2009, the ULJ determined that Broms was
ineligible for unemployment benefits because the USDA had not decided whether Broms
would be demoted and had not taken any action that would amount to a good reason for
her to quit. Broms requested reconsideration, and the ULJ affirmed his prior ruling.
Broms appeals by way of a writ of certiorari.
Broms argues that the ULJ erred by determining that she is ineligible for
unemployment benefits because she quit without a good reason caused by her employer.
This court reviews a ULJ’s decision denying benefits to determine whether the findings,
inferences, conclusions, or decision are affected by an error of law or are “unsupported
by substantial evidence in view of the entire record.” Minn. Stat. § 268.105, subd. 7(d)
(2008). The evidentiary hearing is an evidence-gathering inquiry, not an adversarial
contest, and is conducted without regard to any particular burden of proof. Id., subd. 1(b)
(2008); Vargas v. Nw. Area Found., 673 N.W.2d 200, 205 (Minn. App. 2004), review
denied (Minn. Mar. 30, 2004). The ULJ’s factual findings are viewed in the light most
favorable to the decision being reviewed. Skarhus v. Davanni’s Inc., 721 N.W.2d 340,
344 (Minn. App. 2006). The ultimate determination whether an employee is ineligible
for unemployment benefits based on employment misconduct is a question of law, which
is subject to a de novo standard of review. Id.
An employee who quits employment is ineligible to receive unemployment
benefits, unless an exception applies. Minn. Stat. § 268.095, subd. 1 (2008).
exception to the general rule is the situation in which an employee quits for a good reason
caused by the employer. Id., subd. 1(1). A “good reason” 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.” Id., subd. 3(a) (2008).
Broms contends that she quit for a good reason caused by her employer because
the demotion, from a Level GS-12.6 position to a Level GS-9.1 position, would have
resulted in a significant decrease in her salary. Indeed, an employee who quits a job
because of a significant decrease in compensation may be found to have quit for a good
reason caused by the employer. Compare Hessler v. Am. Television & Radio Co., 258
Minn. 541, 549, 104 N.W.2d 876, 882 (1960) (holding that employees did not quit with
good reason because employer reduced pay by 2-4%); Dachel v. Ortho Met., Inc., 528
N.W.2d 268, 270 (Minn. App. 1995) (holding that employee did not quit with good
reason because employer reduced pay by 10%), with Scott v. Photo Ctr., Inc., 306 Minn.
535, 535-36, 235 N.W.2d 616, 616-17 (1975) (holding that employee quit with good
reason because employer reduced pay by 25%); Rootes v. Wal-Mart Assocs., Inc., 669
N.W.2d 416, 419 (Minn. App. 2003) (holding that employee quit with good reason
because she was demoted to position with approximately 16% less pay and
disadvantageous hours); cf. Sunstar Foods, Inc. v. Uhlendorf, 310 N.W.2d 80, 83-85
(Minn. 1981) (holding that employees were eligible for unemployment benefits because
employer’s 21-26% reduction in wages was a lockout, not a strike).
But the ULJ rejected Broms’s argument on a different ground. The ULJ found
that the USDA “had not yet made any decision about whether or not Broms would be
demoted.” The ULJ explained, “When Broms quit, the employer had not taken the kind
of adverse action that would have caused the average, reasonable worker to quit and
become unemployed rather than remaining in the employment.” These findings by the
ULJ are supported by the evidentiary record in several respects.
First, the written
proposal for a demotion states:
This notice constitutes a proposal to demote you from a GS
0510/12/05 Accountant to a GS 0510/09/01 Accountant no
sooner than thirty (30) calendar days from your receipt of this
notice. No decision will be rendered on this proposed notice
until the period of time for your response has expired.
Second, Broms herself testified that she was given a proposal for demotion and, in
response to precise questioning by the ULJ, acknowledged that it was a proposal and not
a final decision. Third, Grahek testified that he had reviewed with Broms the fact that the
document was merely a proposal and that Broms could have provided feedback to the
decisionmaker. Fourth, Rucke testified that she left a voice-mail message for Broms
stating that the notice was a proposal and that the USDA had not made a final decision.
Thus, the record contains substantial evidence supporting the ULJ’s finding that the
USDA did not demote Broms before she quit.
Broms challenges the ULJ’s finding that the USDA did not make a decision to
demote her before her resignation. First, she contends that she actually was demoted
during the January 12, 2009, meeting at which she was presented with the demotion
proposal. More specifically, she asserts, “I was informed that I was being demoted,” and,
“I left the meeting with the understanding I was being demoted . . . .”
contention is contradicted by the evidence described in the previous paragraph. To the
extent that Broms attacks the credibility of the USDA’s witnesses, we must defer to the
ULJ’s findings. Skarhus, 721 N.W.2d at 344. Furthermore, Broms’s present insistence
that she was demoted at the January 12 meeting is inconsistent with her own testimony at
the agency hearing that she was given a proposal.
Second, Broms contends that a demotion “was informally put in place” before she
submitted her resignation.
In her request for reconsideration, she argued that
management changed her duties and responsibilities, thus indicating that a decision had
already been made to demote her. The ULJ rejected the argument, stating that such
conduct did not indicate a final decision and that other evidence supported the conclusion
that the USDA had not made a decision to demote her. The argument by Broms in her
pro se brief does not overcome the evidence on which the ULJ relied so as to
conclusively demonstrate that the USDA had made a decision to demote Broms.
Furthermore, Broms’s contention is inconsistent with her testimony that she quit because
she was aware that she could be demoted at any time and did not want her employment
record to include a demotion.
Third, Broms contends that the USDA effectively demoted her because it did not
“prevent [her] resignation.” More specifically, she contends that Laura McKenzie, who
was to be the decisionmaker, “could have notified me that a decision had not been made.”
This contention is inconsistent with the evidence that Root and Rucke made several
attempts to communicate that very fact to Broms via telephone calls and a voice-mail
Fourth, Broms contends that the ULJ’s determination is flawed because McKenzie
did not participate in the telephonic hearing. The hearing record reflects that McKenzie
did not participate because she was ill that day. Other USDA employees testified about
their discussions with McKenzie concerning the demotion proposal. Reliable hearsay is
admissible in an unemployment appeal hearing if the evidence has probative value and
“is the type of evidence on which reasonable, prudent persons are accustomed to rely in
the conduct of their serious affairs.” Minn. R. 3310.2922 (2009). The ULJ provided a
fair hearing and ensured that both parties presented all of the evidence that they wished to
Fifth, Broms contends that she had good reason to quit because she was subjected
to “harassment” and “an intimidating, hostile, or offensive working environment.”
Broms did not make such an argument to the ULJ and, thus, cannot raise it for the first
time on appeal. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). We note that
Broms’s allegation appears to arise out of the disciplinary actions her supervisor
imposed, including the performance improvement plan, which Broms states was “very
stressful” and “unbearable.” It also appears that Broms did not comply with the statutory
requirement that she “complain to the employer and give the employer a reasonable
opportunity to correct the adverse working conditions before that may be considered a
good reason caused by the employer for quitting.” Minn. Stat. § 268.095, subd. 3(c)
The ULJ did not err by finding that the USDA did not demote Broms before her
resignation and by concluding that Broms quit without a good reason caused by the
employer. The ULJ found that Broms “was concerned that she would be demoted and
that she did not want this demotion on her work record.” An employee who resigns a job
to avoid an involuntary termination does not quit for a good reason caused by the
Bongiovanni v. Vanlor Invs., 370 N.W.2d 697, 699 (Minn. App. 1985);
Seacrist v. City of Cottage Grove, 344 N.W.2d 889, 891 (Minn. App. 1984); Ramirez v.
Metro Waste Control Comm’n, 340 N.W.2d 355, 357-358 (Minn. App. 1983). Likewise,
an employee who resigns a job to avoid a demotion does not quit for a good reason
caused by the employer. See Johnson v. Walch & Walch, Inc., 696 N.W.2d 799, 801-02
(Minn. App. 2005) (holding that employee did not have good reason to quit due to
concern about possible loss of income after transfer to different worksite), review denied
(Minn. July 19, 2005). In light of the ULJ’s finding that Broms resigned to avoid being
demoted, the ULJ properly concluded that she did not have a good reason to quit caused
by the employer.
In sum, substantial evidence supports the ULJ’s determination that Broms did not
quit her job for a good reason caused by the USDA.
Thus, she is ineligible for