Mary Wickstrom, Relator, vs. AquaSeal LLC, 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This opinion will be unpublished and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

A04-264

 

Mary Wickstrom,

Relator,

 

vs.

 

AquaSeal LLC,

Respondent,

 

Commissioner of Employment and Economic Development,

Respondent.

 

Filed October 12, 2004

Affirmed

Harten, Judge

 

Department of Employment and Economic Development

Agency File No. 13069-03

 

Mary Wickstrom, 9254 County Road 16 Southeast, Delano, MN 55328 (pro se relator)

 

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

 

AquaSeal LLC, 12821 Industrial Park Boulevard, Plymouth, MN 55441 (respondent)

 

            Considered and decided by Shumaker, Presiding Judge; Lansing, Judge; and Harten, Judge.

U N P U B L I S H E D   O P I N I O N

 

HARTEN, Judge

 

            Relator challenges the determination of the commissioner's representative (CR) that she is disqualified for unemployment benefits because she quit her job without good reason caused by her employer.  Because evidence reasonably tends to sustain the finding that relator quit her job without good reason caused by her employer, we affirm.

FACTS

 

Relator Mary Wickstrom was employed by respondent AquaSeal LLC from May 2002 until July 2003.  On 30 June 2003, she was told her employment would be terminated because of poor attendance.  However, she was also told that no termination date was fixed, that she could continue working until a replacement was located and trained, and that she could use respondent's office and equipment to help with her own job search. 

Two days later, on 2 July 2003, relator wrote to respondent saying she could not stay until a replacement was available and that "the week of July 7th [through 11th] will be my last."  She did not return to work after 11 July.

Relator filed for unemployment benefits.  The Department of Economic Security denied benefits on the ground that she had been discharged for misconduct.  Relator appealed.  After a telephone hearing, an unemployment law judge also found that she had been discharged for misconduct and was therefore not eligible for benefits.  Relator again appealed.  The CR found that relator had quit without a good reason attributable to respondent and was therefore not eligible for benefits.  Relator now challenges that finding. [1]

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).  An appellate court reviews factual findings made by the CR in the light most favorable to the decision and does not disturb them if there is evidence that reasonably tends to sustain them.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).

            The CR found that

            Aqua[S]eal's owner, and [relator]'s direct supervisor, Colin Brown, informed [relator] on June 30, 2003 that he would terminate her after he could find and train a replacement.  She was given the opportunity to continue working until this time.  No date for termination was set.

                       

[Relator] quit her employment after July 11, 2003, while continuing work was available for her at Aqua[S]eal.

 

. . . .

 

                        [Relator] chose to leave her employment while further work was available.  She therefore quit her employment.

 

. . . .

 

[Relator] quit because she believed she was going to be fired at some point in the future. 

 

The CR relied on Minn. Stat. § 268.095, subd. 2(b) (2002):

 

            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.

 

               There is evidence to sustain the CR's finding that relator chose to leave her employment while employment was still available.  Relator notified her supervisor with a handwritten note on 2 July 2003 telling him she could not stay until he found someone else and she trained that person; she said, "I am letting you know that the week of July 7th will be my last."  Relator's supervisor testified that, "Essentially [relator's] resignation was handed to me because I wanted to, had offered to keep [relator] for, you know, substantially longer."  When asked, "You offered to keep her on in what position?", the supervisor answered, "Any means possible.  I wanted to be as flexible as possible to her.  I said one hour a day, I said three hours a day, I said all day.  I said whatever she wanted, period."  When asked, "So did you envision some ending date?", he testified, "We did not set one until [relator] had notified me in writing of her date to end employment."  Whether a termination of employment is a voluntary separation or an involuntary discharge is determined as of the date of the termination.  Sticka v. Holiday Vill. S., 348 N.W.2d 761, 763 (Minn. 1984).  The date of termination was the date chosen by relator, not her employer, whose uncontroverted testimony indicates that he would have extended employment beyond that date.

               Evidence supports the CR's finding that relator left her employment while employment was still available to her, which is a quit rather than a discharge under Minn. Stat. § 268.095, subd. 2(b).          

            Affirmed.

[1] The Department of Economic Security initially determined that relator was disqualified because she had been discharged for misconduct, and an unemployment law judge affirmed the disqualification on that basis.  Relator states that she is "appealing all three of the decisions relating to my applying for [u]nemployment [b]enefits," and much of her brief is devoted to argument on misconduct.  But on appeal, this court reviews the decision of the CR, not that of the unemployment law judge.  Kalberg v. Park & Recreation Bd., 563 N.W.2d 275, 276 (Minn. App. 1997).