Brixen Ende, Relator, vs. Sundance Golf & Bowl, 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This opinion will be unpublished and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

A03-1580

 

Brixen Ende,

Relator,

 

vs.

 

Sundance Golf & Bowl, Inc.,

Respondent,

 

Commissioner of Employment and Economic Development,

Respondent.

 

Filed August 17, 2004

Affirmed

Kalitowski, Judge

 

Department of Employment and Economic Development

File No. 10237 03

 

Brixen Ende, 5630 Kalland Avenue Northeast, Albertville, MN 55301 (pro se relator)

 

Sundance Golf & Bowl, Inc., 15240 113th Avenue North, Maple Grove, MN 55369-9320 (respondent)

 

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

 

            Considered and decided by Kalitowski, Presiding Judge; Randall, Judge; and Wright, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Relator Brixen Ende challenges the determination of the representative of the Commissioner of Employment and Economic Security that she is disqualified from receiving unemployment benefits, arguing that she was terminated by her employer.  In the alternative, relator requests this court to remand for a rehearing because of newly discovered evidence.  We affirm.

D E C I S I O N

 

I.

Appellate courts review the decision of the commissioner's representative rather than the decision of the unemployment law judge.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  Decisions of the commissioner's representative are accorded "particular deference."  Id.  Appellate courts review the commissioner's representative's factual findings in the light most favorable to the decision and will not disturb them if the record reasonably tends to sustain them.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  Whether an employee has voluntarily quit or been discharged is a question of fact.  Midland Elec., Inc. v. Johnson, 372 N.W.2d 810, 812 (Minn. App. 1985).

Relator argues that the commissioner's representative's decision should be reversed because the employer allowed her to rescind her resignation and thereafter terminated her.  We disagree.  An employee who quits employment shall be disqualified from all unemployment benefits unless the employee quit due to "a good reason caused by the employer."  Minn. Stat. § 268.095, subd. 1(1) (2002).  By statute, an employee quits employment when the decision to end employment, at the time the employment ended, was the employee's.  Minn. Stat. § 268.095, subd. 2(a) (2002).

            It is undisputed that relator submitted her resignation on December 16, 2002, stating she would no longer be working for her employer after December 30, 2002.  But relator claims that her employer allowed her to rescind her resignation and agreed that she could continue working on at least a fill-in basis when hours were available.  Relator contends that the agreement to rescind is evidenced by the fact that employer let her work on December 31, 2002, which was after the day she had initially indicated would be her last day of work.  Relator further contends that she was terminated because she violated her employer's check-cashing policy and as a result accepted a "bad check" in the amount of $200.

The employer's bar manager testified that she told relator that she could not put relator on the schedule but if there were any hours open or if somebody needed a night off, relator could take the shift.  The bar manager also stated that relator "certainly did not get fired because of the check."  Moreover, the employer's general manager testified that as soon as relator put in her notice, the employer hired another bartender to replace relator.  And the commissioner's representative found that (1) employer gave relator no guarantee that she would receive any additional shifts with the employer; (2) employer never told relator that she was discharged or fired; (3) employer did not rescind relator's resignation by letting relator work one more day after her notice period ended; and (4) relator was not discharged.

Here, the parties presented conflicting testimony of whether employer agreed to allow relator to rescind her resignation.  And when parties present conflicting evidence, this court must defer to the commissioner's representative's credibility determinations.  Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995).  The commissioner's representative found that relator quit her employment, that she made the decision to end the employment when the employment ended, and that she was therefore disqualified from receiving unemployment benefits.  We conclude that, when viewed in the light most favorable to the decision, the record reasonably tends to support the commissioner's representative's findings.

II.

            Relator also requests that this matter be remanded for rehearing because of newly discovered evidence that casts doubt on the sincerity of employer's claim that there were no hours available for relator and tends to prove that relator was terminated for violating employer's check-cashing policy.

            Relator cites Minn. R. Civ. P. 59.01(d) for the proposition that a new trial may be granted if material evidence is newly discovered "which with reasonable diligence could not have been found and produced at the trial."  Specifically, relator's evidence includes (1) a statement from a former coworker who believed that relator was terminated for violating employer's check-cashing policy; and (2) newspaper advertisements from her employer in January and February 2003 seeking to fill a bartender position.  But we note that the witness testimony and published newspaper advertisements were easily discoverable prior to the hearing.

            We also note that relator raised this argument for the first time before this court.  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (holding that arguments raised for the first time before this court will generally not be considered).  And we conclude that this issue should have first been brought before the commissioner's representative for a determination as to whether a remand was appropriate.  See Minn. Stat. § 268.103, subd. 2(d) (2002) (allowing the commissioner's representative to consider evidence not submitted at the hearing before the unemployment law judge in determining whether a remand is appropriate).

            Affirmed.