Howard Tanner, Jr., Relator, vs. AMF Bowling Centers, Inc., Respondent, Commissioner of Employment and Economic Development, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

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

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-417

Howard Tanner, Jr.,

Relator,

vs.

AMF Bowling Centers, Inc.,

Respondent,

Commissioner of Employment and Economic Development

Respondent.

Filed December 30, 2003

Affirmed

Robert H. Schumacher, Judge

Department of Employment and Economic Development

File No. 814 03

Howard Tanner, Jr., 7555 Brunswick Avenue North, Brooklyn Park, MN 55443 (pro se relator)

AMF Bowling Centers, Inc., 6440 James Circle North, Brooklyn Center, MN 55430 (respondent)

Lee B. Nelson, Department of Employment and Economic Development, 390 North Robert Street, St. Paul, MN 55101 (for respondent Commissioner)

            Considered and decided by Shumaker, Presiding Judge; Randall, Judge; and Schumacher, Judge.

U N P U B L I S H E D   O P I N I O N

ROBERT H. SCHUMACHER, Judge

Relator Howard Tanner, Jr. challenges the decision of the commissioner's representative that he is not entitled to a new hearing and is disqualified from unemployment benefits.  The Department of Economic Security sent notice of the evidentiary hearing to Tanner's last known address, and there is no factual support on the record for Tanner's argument that he quit his employment with good reason.  We affirm.

Tanner was employed by respondent AMF Bowling Centers, Inc. as a prep cook from February 13, 1998 until November 15, 2002.  On November 15, AMF gave Tanner a disciplinary warning regarding Tanner's calling in sick every payday for four consecutive paydays and regarding Tanner's excessive absenteeism.  Tanner left his employment after receiving the disciplinary warning because he believed AMF was treating him unfairly in warning him regarding his attendance.

Tanner applied for unemployment compensation benefits from the Minnesota Department of Economic Security.  A department adjudicator denied him benefits, finding Tanner voluntarily quit his employment without good reason caused by AMF.  Tanner appealed the adjudicator's determination.  An evidentiary hearing was scheduled but Tanner failed to appear.

Tanner explained by letter to the Department of Economic Security, dated March 20, 2003, that the notice scheduling the evidentiary hearing for February 13, 2003 was sent to his sister's home.  Tanner had moved out of his sister's home sometime prior to the mailing of the hearing notice.  He received the notice when he picked up his mail from his sister after February 13 and the department received notice of his new address on February 18.

The unemployment law judge affirmed the disqualification determination.  On appeal, the commissioner's representative affirmed the conclusion that there was insufficient evidence to support Tanner's argument that he quit for good reason caused by AMF.  The commissioner's representative also determined Tanner was not entitled to a new hearing.

1.         Tanner argues he is entitled to a new hearing because he did not receive notice of the hearing.  "The Commissioner is accorded deference when exercising discretion to decide remand requests, and this court has declined to overrule the Commissioner when the refusal to remand was based on a party's failure to submit testimony at the referee hearing."  Goodwin v. BPS Guard Servs., Inc., 524 N.W.2d 28, 30 (Minn. App. 1994) (citing Turnquist v. Amoco Oil Co., 397 N.W.2d 442, 444-45 (Minn. App. 1986) (affirming commissioner's refusal to remand for additional testimony even though party was not represented by counsel at hearing)); Wicker Enters., Inc. v. Dahler, 347 N.W.2d 543, 544 (Minn. App. 1984) (affirming commissioner's refusal to remand when one party failed to attend hearing because of conflict and never requested continuance).

Minnesota administrative agency rules provide that notice of hearing be mailed to each party "at the last known address at least ten days before" the date of the hearing.  Minn. R. 3310.2910 (2001).  In this case, the notice of hearing is dated February 3, 2003 and was sent to his sister's address, scheduling a hearing for February 13, 2003.  Tanner does not disagree that his sister's home was the address of record at the time the notice was sent.  He explains that he moved out of his sister's home and received the notice of hearing after February 13 when he picked up his mail at his sister's home.  The department properly sent the hearing notice to Tanner's last-known address.  Thus, we affirm the decision of the commissioner's representative that Tanner is not entitled to a new hearing.

2.         Tanner argues that he quit his employment for good reason caused by AMF.  An employee who quits his employment is disqualified from receiving unemployment benefits unless he falls under one of the eight enumerated exceptions.  Minn. Stat. § 268.095, subd. 1 (2002).  One exception is that the employee quit because of a good reason caused by the employer.  Id., subd. 1(1).  The employee bears the burden of proving there was good reason to quit.  Hein v. Precision Assocs., Inc., 609 N.W.2d 916, 918 (Minn. App. 2000).  The commissioner's representative is required to evaluate the record based on evidence submitted at the hearing before the unemployment law judge.  Minn. Stat. § 268.105, subd. 2(c) (2002).  The determination that an employee quit without good reason attributable to the employer is a legal conclusion, but must be based on findings that have the requisite evidentiary support.  See Zepp v. Arthur Treacher Fish & Chips, Inc., 272 N.W.2d 262, 263 (Minn. 1978) (interpreting predecessor statute, requiring "good cause" attributable to employer).

Tanner argues he quit because he was subject to racial discrimination, he was being paid less than other employees, his hours were unjustifiably cut from 32 to 36 hours per week to 18 hours per week, and he was forced to quit due to health problems.  Thus, Tanner concludes he quit for good reason caused by AMF.  Because Tanner did not participate in the evidentiary hearing, there is no evidence in the record to support Tanner's arguments.  Thus, we find no error in the commissioner's representative's conclusion that Tanner is disqualified from receiving unemployment benefits.

Affirmed.