Opinion
No. C5-02-1511.
Filed May 13, 2003.
Appeal from the Department of Economic Security, Agency File No. 12376-01.
Myrtle I. David, (relator pro se)
Lee B. Nelson, M. Kate Chaffee, Department of Economic Security, (for respondent Commissioner of Economic Security)
Considered and decided by Harten, Presiding Judge, Stoneburner, Judge, and Minge, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2002).
UNPUBLISHED OPINION
Relator challenges the commissioner's representative's decision that relator quit without good reason caused by her employer, arguing that she did not quit. Because we conclude that the record reasonably supports the finding that relator quit, we affirm.
FACTS
Respondent Quality Staffing Solutions, a temporary staffing agency, employed relator Myrtle David on various assignments from September 2000 to 22 August 2001. At the initial hearing, relator maintained that she was discharged; at a second hearing, Quality Staffing maintained that she quit.
At the first hearing, relator testified that she began a "day-to-day" work assignment on 22 August 2001, that she requested 23 August off from work so that she could renew her work permit, and that she requested work after 23 August but was told that there was no work available. No one from Quality Staffing attended the hearing; its administrator later stated that she thought the hearing had been rescheduled.
An unemployment law judge found that relator was discharged and determined that she was not disqualified from receiving unemployment benefits. Quality Staffing appealed the determination and requested a remand for a second evidentiary hearing. The commissioner's representative remanded for the introduction of additional evidence.
Two witnesses testified on behalf of Quality Staffing at the second hearing. One witness testified that
[relator] accepted an assignment to begin work on August 22, 2001 at [Quality Staffing's client]. [Relator] did work on August 22nd * * * first shift which ran six a.m. to three p.m. On August 23rd [relator] called in at 5:51 in the morning, nine minutes before shift starts. Spoke with [Quality Staffing's on-site representative] and [the representative] entered a note in [relator's] file * * * that said [relator] cancelled [the assignment], can't do the hours. So at that time [relator] quit that job.
In response to relator's testimony that the assignment was day to day, the witness stated:
[Relator] said * * * that [s]he was told that this was a day to day assignment, which is true. The first day [s]he was sent as an over dispatch to make sure we have enough people to work. * * * [I]f [employees] show up the first day basically they'll be kept throughout. They're made a regular employee after that * * * . And [relator] was kept the first day so [relator] would have been kept until the work ended. It's hard to say when that was but it was set up as a long-term assignment.
Finally, the witness testified that relator could have updated her work permit at the job site and that relator never requested work after 23 August. Quality Staffing's other witness corroborated the first. Relator did not attend the second hearing; she later asserted that she never received notice of the hearing, but the commissioner's representative found that notice had been mailed to the same address that relator has used throughout these proceedings.
After the second hearing, an unemployment law judge determined that relator was disqualified from receiving unemployment benefits because she quit without good reason caused by Quality Staffing. Relator appealed and requested a remand so she could submit a copy of her employee record. The commissioner's representative declined to remand and affirmed the determination that relator was disqualified from receiving unemployment benefits. Relator appeals by writ of certiorari.
DECISION
"Whether an employee quit or was discharged is a question of fact." Goodwin v. BPS Guard Servs., Inc., 524 N.W.2d 28, 29 (Minn.App. 1994) (citation omitted). The commissioner's representative's findings of fact are viewed in the light most favorable to the decision and are not disturbed if evidence in the record reasonably tends to sustain them. Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996).
"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) (2002); see also Mbong v. New Horizons Nursing, 608 N.W.2d 890, 895 n. 2 (Minn.App. 2000) (recognizing that a worker at a temporary agency who accepts an assignment but refuses without good cause to complete assignment may have quit). In contrast, a discharge 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. A layoff due to lack of work shall be considered a discharge.
Minn. Stat. § 268.095, subd. 5(a) (2002).
Relator asserts that she did not quit employment. But the record reasonably tends to sustain the commissioner's representative's finding that she did quit. A witness from Quality Staffing testified that relator accepted a long-term assignment, that she cancelled the assignment, and that she never requested work again. Although the witness testified that the initial assignment was day to day, she also stated that it became a long-term assignment if the client retained relator on the first day. Viewing the finding in the light most favorable to the decision, relator quit employment.
Relator argues in her brief that Quality Staffing's witnesses "provided several false statements." This court defers to the commissioner's representative on credibility determinations. Jenson v. Dep't of Econ. Sec., 617 N.W.2d 627, 631 (Minn.App. 2000), review denied (Minn. 20 Dec. 2000). Moreover, this court may not weigh the evidence on review. Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn.App. 1995). Although the parties offered contradicting versions of relator's termination, this court must defer to the commissioner's representative's finding that the testimony of Quality Staffing's witnesses was credible.
Finally, relator argues that her employee record proves that Quality Staffing's witnesses gave false testimony. But relator's employee record was not before the unemployment law judge, and, although relator submitted it to the commissioner's representative, there is no evidence that he considered it. See Minn. Stat. § 268.105, subd. 2(c) (2002) (providing that commissioner shall not consider evidence not submitted at hearing before unemployment law judge except for purposes of deciding whether to remand for further evidentiary hearing). Therefore, this court may not consider it. See Plowman v. Copeland, Buhl Co., 261 N.W.2d 581, 583 (Minn. 1977) (new facts outside record may not be considered on appeal). Even if relator's employee record were considered by the commissioner's representative, it would not have contradicted the testimony that relator accepted a long-term assignment or the undisputed fact that she never returned to that assignment after the first day.