Lenore M. Sadergaski, Relator, vs. Sew What Corporation, Respondent, Commissioner of Employment and Economic Development, Respondent.

This opinion will be unpublished and

may not cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-02-2077

 

Lenore M. Sadergaski,

Relator,

 

vs.

 

Sew What Corporation,

Respondent,

 

Commissioner of Employment and Economic Development,

Respondent.

 

Filed August 19, 2003

Affirmed

Gordon W. Shumaker, Judge

 

Department of Employment and Economic Development

Agency File No. 13126 01

 

 

Lenore M. Sadergaski, 1384 Birmingham Street, St. Paul, MN 55106-2118 (pro se relator)

 

Sew What Corporation, 2190 Marshall Avenue, St. Paul, MN 55104 (respondent-employer)

 

Lee B. Nelson, Philip B. Byrne, Mary Katherine Chaffee, Minnesota Department of Employment and Economic Development, 390 Robert Street North, St. Paul, MN 55101 (respondent-commissioner)

 

 

          Considered and decided by Halbrooks, Presiding Judge, Chief Judge Toussaint, and Shumaker, Judge.

 

U N P U B L I S H E D   O P I N I O N

 

GORDON W. SHUMAKER, Judge

 

Relator challenges the commissioner's representative's determination that she is not eligible for unemployment benefits because she quit her employment following a maternity leave of absence.  Because relator quit her employment without good reason caused by her employer, we affirm. 

FACTS

 

            Relator Lenore Sadergaski worked as a dry-cleaner and presser for respondent-employer Sew What Corporation from September 1987 through May 15, 2001.  The employer's policy required that its employees work at least 30 hours a week to be considered full time and thereby accrue vacation time.  In the past, relator had qualified for three weeks of paid vacation as a full-time employee.  But because relator was pregnant during 2001, her last year of employment, she did not work full time and did not accrue vacation time. 

On May 15, 2001, relator left work to begin her maternity leave earlier than she had expected.  She did not give a return-to-work date to her employer at this time.  Relator was expected to notify her employer when her child was born.

On May 24, 2001, relator received her last paycheck with a note that said "[a]t this time you have used all your available vacation and sick days," and also "[v]acation time does not accrue while [you are] on leave."

Nonetheless, relator called her employer in May to ask if she was going to receive her three weeks of paid vacation.  Her employer told relator that she had not earned a paid vacation.  When relator gave birth on July 26, 2001, she did not contact her employer to establish a return-to-work date or notify her employer of the birth.

On September 19, 2001, relator wrote a note requesting pay for three weeks of vacation, but again did not indicate a return-to-work date.  Her employer again denied relator's request. 

On September 26, 2001, relator contacted her employer and expressed concerns about the vacation time and again requested to be paid for vacation.  Relator also informed employer she would contact him when she was ready to return to work.  The employer denied relator paid vacation.

On October 4, 2001, the employer sent relator a certified letter stating that she was ineligible for paid vacation and acknowledging relator's dissatisfaction with the situation.  This letter states in relevant part stated

"[a]s in our previous conversation of 9/26/01, our records show that you are not eligible for any paid vacation at this time, as you have only worked 1107 hours of the previous 2080 hour work year.  [Employer] appreciate[s] your dismay and unhappiness at this situation.  As you have not arranged any return to work date in the 21 weeks you have been off, and seem to dislike most everything about [employer], I wish you the best in your future employment or whatever you choose to do in life."

 

The employer then included COBRA information, and concluded the letter stating, "[L]et us know what you want to do by October 10th 2001.  Your October insurance payment is currently still due as of today, 10/04/01."  Relator did not respond to this notice, and the employer concluded that relator had quit her job.

            The commissioner's representative concluded that relator quit employment on May 15, 2001, and relator was not eligible for benefits because no exception under Minn. Stat. § 268.095, subd. 1, applied. 

D E C I S I O N

Our scope of review in unemployment benefit cases is limited to determining whether the record reasonably supports the commissioner's representative's decision.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  Decisions of the commissioner's representative are accorded particular deference.  Id. Whether an employee voluntarily quits is a question of fact.  Midland Elec., Inc. v. Johnson, 372 N.W.2d 810, 812 (Minn. App. 1985).  The commissioner's representative's factual findings are viewed in the light most favorable to the decision and will not be disturbed if evidence in the record reasonably tends to sustain them.  Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996).  When witness credibility and conflicting evidence are at issue, we defer to the commissioner's representative's ability to weigh the evidence and make those determinations.  Whitehead v. Moonlight Nursing Care, Inc. 529 N.W.2d 350, 352 (Minn. App. 1995). 

When an employee quits, she is disqualified from receiving benefits unless she quits for "a good reason caused by the employer."  Minn. Stat. § 268.095, subd. 1(1) (2002). 

A good reason caused by the employer for quitting is a reason (a) 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.

 

Id., subd. 3 (2002).  "A quit from employment occurs when the decision to end the employment was * * * the employee's."  Id., subd. 2(a) (2002).  An employee quits when she "directly or indirectly exercises a free-will choice to leave the employment."  Shanahan v. Dist. Mem'l Hosp., 495 N.W.2d 894, 896 (Minn. App. 1993) (citation omitted).

The record shows that relator's last date of work was May 15, 2001.  Relator did not work for her employer for two months prior to the birth of her child, did not notify her employer of the date of her child's birth, did not work for her employer for more than two months after the child's birth, and gave no indication of when she would return to work. 

In addition, the employer raised the issue of a return-to-work date with relator on several occasions, but relator repeatedly failed to set a date.  And in its final letter to relator, the employer indicated that it considered relator to have quit.  The record shows that relator and employer had irreconcilable differences regarding vacation eligibility and a return-to-work date.  We have held that an irreconcilable difference with an employer is not a good reason caused by the employer for quitting.  Trego v. Hennepin County Family Day Care Ass'n, 409 N.W.2d 23, 26 (Minn. App. 1987).

Here, the evidence reasonably supports the commissioner's representative's finding that relator quit her employment without good reason caused by her employer. Because the record supports the findings of the commissioner's representative and the findings of the commissioner support the conclusion that relator quit as defined under Minn. Stat. § 268.095, subd. 2(a), we affirm the commissioner's representative's decision.  Because we affirm the commissioner's representative's decision that relator quit without good reason, relator's arguments regarding discharge are moot.

            Affirmed.