David L. Schoeneck, Relator, vs. Fargo Electronics, Inc. (2001), 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This opinion will be unpublished and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

A03-1379

 

David L. Schoeneck,

Relator,

 

vs.

 

Fargo Electronics, Inc. (2001),

Respondent,

 

Commissioner of Employment and Economic Development,

Respondent.

 

Filed ­­­May 11, 2004

Affirmed

Harten, Judge

 

Department of Employment and Economic Development

Agency File No. 7960-03

 

Patrick M. Connor, Eric D. Satre, Connor, Satre & Schaff, L.L.P., 925 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN 55402 (for relator)

 

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

 

Fargo Electronics, Inc., 6533 Flying Cloud Drive, Eden Prairie, MN 55344-3332 (respondent)

 

            Considered and decided by Harten, Presiding Judge, Halbrooks, Judge, and Minge, Judge.

 

U N P U B L I S H E D   O P I N I O N

 

HARTEN, Judge

 

            Relator challenges the commissioner's representative's finding that relator was disqualified from receiving unemployment compensation because he quit his job after receiving notice that he would be discharged in the future.   Because the evidence reasonably tends to sustain this finding, we affirm.

FACTS

 

Relator David Schoeneck worked as thepublic relations manager for respondent Fargo Electronics, Inc. (Fargo).  Because Fargo was dissatisfied with his performance, it offered relator two options.  The first was to resign and accept a severance package; the second was to work until 4 March 2003 and be discharged from employment.  The severance agreement provided that relator's employment would terminate on 21 February 2003, that he would receive $5,170 in severance pay, a lump sum equal to one-third of his accumulated paid time off, a positive job reference, and $3,000 in outplacement services. 

            Relator accepted the severance package.  About two months after his 21 February termination date, relator applied for unemployment benefits.  In his application he said he had quit his employment.  An economic security departmental adjudicator denied benefits, finding that "[relator] stated he quit this employment because he was demoted.  He was asked how it [the demotion] changed his working conditions, hours of work and wages.  [He] did not give any details concerning the changes in his job." 

Relator appealed.  Following a hearing at which relator testified but Fargo personnel did not testify, an unemployment law judge (ULJ) affirmed the disqualification, finding that "[o]n January 17, 2003, the employer gave [relator] the option of either accepting a severance package or to be discharged in March 2003.  [Relator] then negotiated a severance package with the employer."  As the reason for her decision, the ULJ indicated that "[a] separation from employment is a quit only when the decision, at the time of the separation, was the employee's.  There was continuing work available.  [Relator] quit." 

            Relator again appealed.  The commissioner's representative affirmed the disqualification, finding that

[relator] decided that negotiating a severance agreement and resigning on February 21st would better serve his interests than working until the March 4th discharge date.  He and Fargo negotiated an agreement that enabled [relator] to avoid having a discharge in his employment history and provided him with monetary benefits he otherwise would not have received.  In accordance with the terms of the severance agreement, [relator] resigned on February 21, 2003.

 

As a reason for her decision, the commissioner's representative stated:

            The evidence showed that on February 21, 2003, the date [relator's] employment ended, the decision to end the employment on that date was made by [relator.]  He could have continued to work for Fargo after February 21st.  He chose to quit, instead, because he had received notice that he would be discharged in the future and concluded that quitting prior to the discharge date would better serve his interests.  Under these circumstances, the evidence supports a finding that [relator] quit within the meaning of [Minn. Stat. § 268.095] subdivision 2 and that he did not have a good reason caused by Fargo for quitting within the meaning of "[Minn. Stat. § 268.095] subdivision 3.

 

            Relator now challenges this determination.

D E C I S I O N

 

            "Whether an employee has been discharged or voluntarily quit is a question of fact."  Midland Elec., Inc., v. Johnson, 372 N.W.2d 810, 812 (Minn. App. 1985).  This court reviews the findings of the commissioner's representative in the light most favorable to the decision and does not disturb them "as long as there is evidence that reasonably tends to sustain" them.  Schmidgall v. Filmtec Corp., 644 N.W.2d 801, 804 (Minn. 2002).

            Evidence sustains the finding that relator quit his employment within the meaning of the statutory definition of "quit."  "An employee who has been notified that the employee will be discharged in the future, who chooses to end the employment while employment in any capacity is still available, shall be considered to have quit the employment." Minn. Stat. § 268.095, subd. 2(b) (2002).  Relator was notified that he would be discharged and chose to end his employment as of 21 February notwithstanding that employment was still available until March 4.  Under the statute, he quit his employment.

            At oral argument, relator asserted that he did not end his employment on 21 February because he worked as a consultant for Fargo after that date.  But the record shows that throughout these proceedings relator has claimed that his employment with Fargo ended on 21 February.  On a form relator filled out for the department, he gave his "actual last day of work" as "2/21/03."  When asked by the ULJ during the hearing, "What was your last day of employment?" relator answered, "My last day of employment was February 21, 2003."  The hearing transcript indicates that relator never mentioned his consultant activity to the ULJ.  Relator submitted a timeline in an exhibit that said, "Feb. 21. 2003 Last day of employment by Fargo Electronics, Inc."  In his application for reconsideration of the ULJ's decision, relator said that he "negotiated a severance package that allowed him to continue working until February 21, 2003."   Thus, relator himself claimed that his employment ended on 21 February 2003 and he provided ample evidence to support that finding.

            Substantial evidence sustains the finding that relator quit his employment.

Affirmed.