In re: Estate of Kenneth L. Smart, Deceased, Barbara Wolf, Claimant, Appellant, vs. Kathy Smart, Personal Representative, Respondent, and William G. Smart, Objecting Heir, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-00-53

 

Lance G. Milliman,

Relator,

 

vs.

 

Gannon Elevator Company,

Respondent,

 

Commissioner of Economic Security,

Respondent.

 

Filed May 30, 2000 Affirmed

Peterson, Judge

 

Department of Economic Security

Agency File No. 3417 99

 

Lance G. Milliman, P.O. Box 61, South Haven, MN  55383 (pro se relator)

 

Jennifer J. Ford, Shadduck Young and Brown, LLP, 63 Oak Avenue South, P.O. Box 859, Annandale, MN  55302 (for respondent Gannon Elevator Company)

 

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

 

            Considered and decided by Davies, Presiding Judge, Peterson, Judge, and Halbrooks, Judge.

U N P U B L I S H E D    O P I N I O N

PETERSON, Judge

Relator Lance Milliman challenges the conclusions of the representative of the Commissioner of Economic Security that Milliman quit his employment and that he did not have a good reason to quit caused by his employer.  We affirm.

FACTS

            Respondent Gannon Elevator Co. employed Milliman as a full-time truck driver.  On September 28, 1999, a man came to Gannon Elevator and reported that a Gannon Elevator truck had passed three vehicles in an unsafe manner.  Milliman was driving the truck at the time.

            When Milliman came into the office later that morning, Gannon Elevator's president, John Gannon, confronted him about the incident.  Milliman testified that without giving him a chance to tell his side of the story, Gannon started yelling and screaming and said he did not want his truck driven like that.  Milliman testified that he walked away from Gannon because customers were present, and he thought it was inappropriate to have a scene in front of them.  Milliman also testified that both he and Gannon were "a little angry" and that both of them raised their voices "a little bit."

            Although Milliman was scheduled to work until at least 4:00 p.m. that day, he punched out on the time clock at about 11:00 a.m.  Gannon had not told Milliman to leave, and Milliman did not tell Gannon that he was leaving.  Gannon returned to the office shortly after 1:00 p.m. and turned in paperwork to Gannon.  Gannon called Milliman's name and asked him a question, but Milliman left without responding.  Milliman admitted that he left before he finished his work for the day but contended that his leaving was reasonable given the argument between him and Gannon.  Gannon testified that Milliman's workspace was his truck and that he kept some personal belongings in it.  Without being asked, Milliman removed his personal belongings from the truck.

            Gannon expected Milliman to come into work on September 29, 1999, but Milliman did not do so and did not call to report his absence.  Milliman admitted that he knew he was supposed to call in if he did not report to work.  When Milliman did not report to work at his normal starting time, Gannon believed that Milliman had quit, and had his paycheck mailed to him.  Milliman went into the office at 11:00 a.m., about five hours after he should have started work, but did not punch in on the time clock.  Instead, he went to Gannon's office and turned in his office key.  Gannon told him that his check had been mailed.  Milliman testified that because it was not payday, he concluded that he had been fired and left.

Milliman filed a claim for reemployment compensation benefits.  A claims representative determined that Milliman quit his job without a good reason caused by the employer and denied his claim.  Milliman appealed, and a reemployment compensation judge concluded that Milliman quit without a good reason caused by the employer and affirmed the denial of benefits.  Milliman appealed to respondent Commissioner of Economic Security.  A commissioner's representative concluded that Milliman quit his employment without a good reason caused by the employer and affirmed the reemployment compensation judge's decision. 

D E C I S I O N

            An employee who quits a job is disqualified from receiving reemployment compensation benefits unless the employee quit "because of a good reason caused by the employer."  Minn. Stat. § 268.095, subd. 1(1) (Supp. 1999).  "A quit from employment occurs when the decision to end the employment was, at the time the employment ended, the employee's."  Id., subd. 2(a) (Supp. 1999).

A discharge from employment 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.

 

Id., subd. 5(a) (Supp. 1999).

            An evidentiary hearing shall be conducted by the reemployment compensation judge "without regard to any common law burden of proof as an evidence gathering inquiry and not an adversarial proceeding."  Minn. Stat. § 268.105, subd. 1(b) (Supp. 1999); see also Minn. Stat. §§ 268.069, subd. 2 (applicant's entitlement to benefits shall be determined without regard to common law burden of proof), 268.101, subd. 2(e) (disqualification issue shall be determined without regard to common law burden of proof) (Supp. 1999).  "There shall be no presumption of entitlement or nonentitlement to benefits."  Minn. Stat. § 268.069, subd. 3 (Supp. 1999).  All fact issues shall be determined by a preponderance of the evidence, meaning "evidence in substantiation of a fact that, when weighed against the evidence opposing the fact, is more convincing and has a greater probability of truth."  Minn. Stat. § 268.03, subd. 2 (1998).  "Whether an employee quit or was discharged is a question of fact."  Midland Elec., Inc. v. Johnson, 372 N.W.2d 810, 812 (Minn. App. 1985).  Findings of fact must be reviewed in the light most favorable to the decision and will not be disturbed if there is evidence reasonably tending to support them.  Markel v. City of Circle Pines, 479 N.W.2d 382, 383-84 (Minn. 1992).

            Milliman punched out without completing his shift and cleaned his personal belongings out of his truck.  Milliman did not report to work the following morning or call to report his absence.  He came into the office about five hours after he should have started work, and, without any explanation, turned in his key.  The record does not indicate that, before Milliman turned in his key, Gannon said or did anything to suggest to Milliman that he had been discharged.  This evidence is sufficient to support the commissioner's representative's finding that Milliman quit his job.  See Souder v. Ziegler, Inc., 424 N.W.2d 834 (Minn. App. 1988) (evidence supported the commissioner's representative's finding that employee quit when employee refused to sign disciplinary form and walked off of job and did not return).

            Milliman argues that Gannon's statement that his check was in the mail led him to believe he had been discharged.  But Gannon's testimony that Milliman "walked into my office and set the office key on my desk" supports the commissioner's representative's finding that the statement about the check did not occur until after Milliman turned in his key.  Specifically, the commissioner's representative found:

[Milliman] went to [Gannon's] office and turned in his office key, placing it on [Gannon's] desk.  He had not been asked to turn in his key.  [Gannon] felt that [Milliman] had quit.  He told [Milliman] that his check had been placed in the mail.

 

            Milliman argued before the commissioner's representative that he had a good reason for quitting because Gannon verbally abused him about his driving conduct.  Minn. Stat. § 268.095, subd. 3 (Supp. 1999), provides:

(a) 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; and

(2) that is significant and would compel an average, reasonable worker to quit and become unemployed rather than remaining in the employment.

 

(b) If an applicant was subjected to adverse working conditions by the employer, the applicant must 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.

 

Whether an employee had a good reason caused by the employer for quitting is a question of law.  Zepp v. Arthur Treacher Fish & Chips, Inc., 272 N.W.2d 262, 263 (Minn. 1978).  This court exercises its independent judgment on questions of law.  Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).

            Although Milliman testified that Gannon was yelling and screaming at him, he also testified that both he and Gannon were "a little angry" and that both of them raised their voices "a little bit."  The commissioner's representative found that Gannon "became agitated" during the discussion about the complaint regarding Milliman's driving.  Gannon's conduct would not compel an average, reasonable worker to quit employment.  See Haskins v. Choice Auto Rental, Inc., 558 N.W.2d 507, 512 (Minn. App. 1997) (employer's anger with employee over employee's refusal to sign agreement requiring him to pay a deductible of $300 for any damage to or theft of employer's property caused by his negligence, which contributed to perceived conflict between employee and management, did not give employee good cause to quit).

            Also, the commissioner's representative concluded:

If [Milliman] felt that he was being unfairly accused of driving in an unsafe manner or that he was not being given an opportunity to state his side of the case, he had ample opportunity to do so either verbally or in writing on September 28 and on September 29, 1999.  He did not choose to do so.

 

Because Milliman did not complain to Gannon and give Gannon a reasonable opportunity to correct the adverse working conditions that he contends gave him good reason to quit, under Minn. Stat. § 268.095, subd. 3(b), those conditions may not be considered a good reason caused by the employer for quitting.

            Milliman argues that Gannon Elevator's attorney acted improperly in submitting a copy of a transcript of his conversation with a department employee that contained notations made by Gannon and an affidavit by an individual who did not testify at the hearing before the reemployment compensation judge and was not subject to cross-examination.  Those documents were not admitted into evidence at the hearing before the reemployment compensation judge or by the commissioner's representative.  Evidence that is not admitted during the administrative proceeding will not be considered by this court.  Appelhof v. Commissioner of Jobs & Training, 450 N.W.2d 589, 591 (Minn. App. 1990).

            Affirmed.