Mark B. Cumming, Relator, vs. Taylor Corporation, Respondent, Department of Employment and Economic Development, Respondent.

Mark B. Cumming, Relator, vs. Taylor Corporation, Respondent, Department of Employment and Economic Development, Respondent. A06-1260, Court of Appeals Unpublished, July 17, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1260

 

Mark B. Cumming,

Relator,

 

vs.

 

Taylor Corporation,

Respondent,

 

Department of Employment and Economic Development,

Respondent.

 

Filed July 17, 2007

Affirmed

Kalitowski, Judge

 

Department of Employment and Economic Development

File No. 4154 06

 

Mark B. Cumming, 59540 109th Street, Mapleton, MN 56065 (pro se relator)

 

Taylor Corporation, 1750 Tower Boulevard, North Mankato, MN 56003 (respondent)

 

Lee B. Nelson, Linda A. Holmes, Department of Employment and Economic Development, First National Bank Building, 332 Minnesota Street, Suite E200, St. Paul, MN 55101-1351 (for respondent Department of Employment and Economic Development)

 

Considered and decided by Stoneburner, Presiding Judge; Kalitowski, Judge; and Harten, Judge.*

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

On certiorari appeal, relator Mark B. Cumming argues that the unemployment law judge erred in determining that he quit employment without good reason caused by the employer and was therefore disqualified from receiving unemployment benefits.  We affirm. 

D E C I S I O N

Relator Mark B. Cumming challenges the unemployment law judge's (ULJ) decision that he quit employment without good reason caused by the employer and was disqualified from receiving unemployment benefits.  This court may affirm the decision of the ULJ, remand the case for further proceedings, or reverse or modify the decision if

the substantial rights of the petitioner may have been prejudiced because the findings, inferences, conclusion, or decision are:

(1) in violation of constitutional provisions;

(2) in excess of the statutory authority or jurisdiction of the department;

(3) made upon unlawful procedure;

(4) affected by other error of law;

(5) unsupported by substantial evidence in view of the entire record as submitted; or

(6) arbitrary or capricious.

 

Minn. Stat. § 268.105, subd. 7(d) (Supp. 2005).  This court views the ULJ's findings in the light most favorable to the decision.  Skarhus v. Davanni's Inc., 721 N.W.2d 340, 344 (Minn. App. 2006).  And this court will not disturb the ULJ's findings if they are sufficiently supported by the record.  Id.  

            Here, relator began employment with respondent Taylor Corporation (Taylor) in 2001.  In 2005, relator was given a notice of disciplinary action because of his substandard job performance and repeated tardiness.  In January 2006, relator's supervisor, Werner Nickel, told relator that within the week, he would be given a final written warning; relator understood this to mean that he was facing discharge.  Although discharge became an option after a final written warning, Nickel did not tell relator that he was being discharged that day, nor did he give relator a future discharge date.  Nickel raised the idea that relator resign, and relator agreed to resign because he did not want Taylor to give bad references to future employers. 

            Relator argues that he did not quit but, rather, he was discharged.  The ULJ determined that relator quit employment and that no exception to disqualification applied.  "A quit from employment occurs when the decision to end the employment was, at the time the employment ended, the employee's."  Minn. Stat. § 268.095, subd. 2(a) (2004).  "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."  Id., subd. 2(b) (2004).  An applicant who quits employment is disqualified from receiving unemployment benefits unless a statutory exception applies.  Id.,subd. 1 (2004). 

            Alternatively, "[a] discharge from employment occurs when any words or actions by an employer would lead a reasonable employee to believe that the employer will no longer allow the employee to work for the employer in any capacity."  Id., subd. 5(a) (2004).  And an employee who indicates his or her intention to quit and is not allowed to work throughout the notice period is considered discharged.  Id., subd. 5(b) (2004).

            An employee voluntarily quits his employment when the employee leaves an employer rather than await the outcome of disciplinary action. Ramirez v. Metro Waste Control Comm'n,340 N.W.2d 355, 358 (Minn. App. 1983).  This principle applies even if the employer poses an ultimatum to the employee.  Seacrist v. City of Cottage Grove, 344 N.W.2d 889, 892 (Minn. App. 1984) (holding that an employee who is faced with either justified discipline or resignation, and chooses voluntary resignation is disqualified from receiving unemployment benefits).

            On this record, we conclude that if relator did not resign the day he met with Nickel he would have been able to continue working.  Because relator chose to resign in order to secure a good reference when work was still available to him, the ULJ properly determined that relator was disqualified from receiving unemployment benefits.

            Affirmed.

*  Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.