Opinion
No. C0-99-1422.
Filed March 21, 2000.
Appeal from the Department of Economic Security, Agency File No. 3614 UC 99.
Michael Mudek, (pro se relator)
Ardelle's Eatery Madamaa, Inc., (respondent)
Kent E. Todd, (for respondent Commissioner of Economic Security)
Considered and decided by Peterson, Presiding Judge, Schumacher, Judge, and Anderson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).
UNPUBLISHED OPINION
Relator Michael Mudek challenges the commissioner's representative's alternative determinations that he voluntarily quit employment without a good reason caused by the employer, or that, if he was discharged from employment, he was discharged for misconduct. We affirm.
FACTS
Mudek worked as a full-time cook for Ardelle's Eatery Madamaa, Inc., from May 1997 through March 14, 1999. Mudek testified that on Sunday, March 14, 1999, as he was leaving work, he told his employer that he would see her the next day, but that she told him to take Monday and Tuesday off because he had just worked nine days in a row and that she would call him on Wednesday with his schedule. Mudek testified that although Monday and Tuesday were normally his days off, his days off varied depending on other employees' schedules. After Mudek left work on March 14, 1999, his employer's home was burglarized, and police interviewed Mudek as a suspect in the burglary. Mudek did not report to work after March 14, 1999, and he did not contact his employer until April 23, 1999. Mudek testified that he understood that he had been discharged from employment because his employer did not call him with his work schedule on Wednesday, March 17, 1999, and because, on Thursday, March 18, 1999, he saw a newspaper advertisement seeking a full-time cook for Ardelle's, and Ardelle's employed only one full-time cook.
The commissioner's representative's finding that Mudek contacted his employer on March 23, 1999, appears to be a typographical error. The employer testified that Mudek did not contact her until April 23, 1999, and we did not find evidence in the record that Mudek contacted her before April 23, 1999.
The employer testified that Mudek had a history of attendance problems, often failing to show up or call when he was scheduled to work. The employer testified that as Mudek was leaving on Sunday, March 14, 1999, she told him that she would see him the next day. She expected him to work the noon-hour shift on Monday, March 15, 1999, as he typically did. The employer denied telling Mudek to take time off and also denied telling him that she would call him with his work schedule. The employer testified that it was not her normal practice to call Mudek with his schedule and that if Mudek had a question about when he was scheduled to work, he would contact her. She admitted suspecting Mudek of burglarizing her home.
The commissioner's representative concluded that Mudek voluntarily quit his job without a good reason caused by his employer when he failed to report for work on March 15, 1999, or thereafter. The commissioner's representative alternatively concluded that, if Mudek was discharged from employment, his failure to report for scheduled work on March 15, 1999, particularly when considered in light of his history of absenteeism, constituted misconduct.
DECISION
1. An employee who quits employment is disqualified from receiving reemployment insurance benefits unless the employee quit "because of a good reason caused by the employer." Minn. Stat. § 268.095, subd. 1(1) (1998). "A quit from employment occurs when the decision to end the employment was, at the time the employment ended, the employee's." Id., subd. 2 (1998).
A discharge from employment occurs when any words or actions by an employer would lead a reasonable employee to believe that the employee's services are no longer desired by the employer.
Id., subd. 5 (1998).
The employer has the burden of proving by a preponderance of the evidence that an employee quit employment. Marz v. Department of Employment Servs., 256 N.W.2d 287, 289 (Minn. 1977). "Whether an employee quit or was discharged is a question of fact." Midland Elec., Inc. v. Johnson, 372 N.W.2d 810, 812 (Minn.App. 1985). Findings of fact must be reviewed in the light most favorable to the decision and will not be disturbed if there is evidence reasonably tending to support them. Id.
Mudek argues that he was discharged from employment. He cites evidence that his employer told him to take off March 15 and 16 and that she did not call him with his schedule on March 17. He also cites the fact that his employer began advertising for a full-time cook. Mudek contends that these circumstances, considered in light of his employer's belief that he was involved in the burglary of her home, gave him a reasonable belief that he had been discharged from employment. See Souder v. Ziegler, Inc., 424 N.W.2d 834, 835-36 (Minn.App. 1988) (employee did not voluntarily quit when his failure to return to work was due to a reasonable belief that he had been discharged).
But Mudek's testimony that his employer told him to take off March 15 and 16 was directly contradicted by the employer's testimony. The employer testified that she expected Mudek to work on March 15, that she did not tell him to take time off, and that, as Mudek was leaving work on March 14, she told him that she would see him the next day. The employer denied telling Mudek that she would call him with his schedule on March 17.
The commissioner's representative found that the employer's testimony about the circumstances leading up to Mudek's separation from employment was more credible than Mudek's testimony on the issue. This court defers to the commissioner's representative's assessment of witness credibility. Heitman v. Cronstroms Manufacturing, Inc., 401 N.W.2d 425, 427 (Minn.App. 1987). The employer's testimony supports the finding that Mudek voluntarily quit his job. See Souder, 424 N.W.2d at 835-36 (employee voluntarily quit when she left work after receiving disciplinary warning and failed to return).
Once the employer demonstrates that an employee quit, the burden shifts to the employee to prove that he had a good reason caused by the employer for quitting. Zepp v. Arthur Treacher Fish Chips, Inc., 272 N.W.2d 262, 263 (Minn. 1978). Whether an employee had a good reason caused by the employer for quitting is a question of law. Id. This court exercises its independent judgment on questions of law. Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).
A good reason caused by the employer for quitting is a reason:
(1) that is directly related to the employment and for which the employer is responsible; and
(2) that is significant and would compel an average reasonable worker to quit.
Minn. Stat. § 268.095, subd. 3(a) (1998).
Mudek does not address the issue of whether he had a good reason caused by the employer for quitting. Because Mudek did not return to work or contact his employer after the burglary occurred, the record contains no evidence that the employer's suspicions affected Mudek's working conditions. Mudek testified that after police questioned him, he still wanted to keep his job and believed that he would be able to work the situation out with his employer. The evidence does not establish a good reason caused by the employer for quitting.
2. An employee who is discharged from employment for "misconduct that interfered with and adversely affected that employment" is disqualified from receiving reemployment insurance benefits. Minn. Stat. § 268.095, subd. 4(1) (1998). Whether an employee committed disqualifying misconduct is a mixed question of fact and law. Colburn v. Pine Portage Madden Bros., 346 N.W.2d 159, 161 (Minn. 1984). The commissioner's representative's fact findings must be sustained on appeal if there is evidence reasonably supporting them. Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995). The final determination of whether an employee committed misconduct, however, is a question of law upon which this court is free to exercise its independent judgment. Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).
The employer's testimony supports the commissioner's representative's finding that, if Mudek did not quit his job, he was discharged for his failure to contact his employer or report for scheduled work on March 15. The employer testified that Mudek had a history of attendance problems and that he failed to report for work on March 15 and did not contact her until April 23. The commissioner's representative did not err by concluding that, in light of Mudek's history of absenteeism, if Mudek was discharged, he was discharged for misconduct. See Del Dee Foods, Inc. v. Miller, 390 N.W.2d 415, 417-18 (Minn.App. 1986) (explaining circumstances under which absence from work constitutes misconduct).