Scott Thomson, Relator,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1399

Scott Thomson,
Relator,

vs.

Avalon Express, Inc.,
Respondent,

Department of Employment and Economic Development,
Respondent.

Filed April 3, 2017
Affirmed
Schellhas, Judge

Department of Employment and Economic Development
File No. 34709761-3

Scott Thomson, Maiden Rock, Wisconsin (pro se relator)

Avalon Express, Inc., Cannon Falls, Minnesota (respondent employer)

Lee B. Nelson, Keri Phillips, Department of Employment and Economic Development, St.
Paul, Minnesota (for respondent department)

Considered and decided by Kirk, Presiding Judge; Schellhas, Judge; and Bratvold,
Judge.

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U N P U B L I S H E D O P I N I O N
SCHELLHAS, Judge
Relator challenges the unemployment-law judge’s decision finding him ineligible
for unemployment benefits because he quit without a good reason caused by his employer.
We affirm.
FACTS
Relator Scott Thomson worked as a truck driver for respondent Avalon Express Inc.
from July 2010 un til May 2016. In March 2016, while performing a delivery, Thomson
was involved in a traffic accident. Avalon’s insurance carrier wanted Avalon to discharge
Thomson, but David Olson, Avalon’s owner, worked with the insurance carrier to create a
training program for Thomson that allowed him to keep his job. At one training session,
Thomson reported to Olson that a dispatcher had “pushed” him to drive about 1,000 miles
a day in a 64-mile-per-hour truck. Olson instructed Thomson “to tell dispatch that you can’t
do that for safety concerns if you feel that they’re pushing you too much.” When Thomson
responded that this would “piss the guys off at dispatch,” Olson said, “I know but you have
to do what you have to do.”
Federal drive-time regulations prohibit certain commercial drivers from: (1) starting
a work period without first taking 10 consec utive hours off duty; (2) driving after a 14-
consecutive-hour work period without first ta king 10 consecutive hours off duty; and
(3) driving more than 11 hours in a 14-hour work period. 49 C.F.R. § 395.3(a) (2016).
Avalon’s dispatchers schedule pick-ups and drop-offs, but they do not know when drivers

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begin and end their days. Avalon instead reli es on drivers to manage their own time and
comply with the federal drive-time regulations.
On May 26, 2016, Thomson was scheduled to make a morning delivery in Belgium,
Wisconsin, to be followed by another delivery in Burnsville, Minnesota, the next morning.
Thomson completed the deliveries, but in doi ng so he drove more than 11 consecutive
hours in a 14-hour period in violation of fe deral law. After finishing, Thomson called
Bruce, a dispatcher, who asked Thomson to ma ke a delivery to Brai nerd that evening.
Thomson told Bruce that he would not do so because it was unsafe. Bruce found another
driver to make the delivery and asked Thomson to load up Thomson’s trailer and allow the
other driver to switch trailers with him. Thomson agreed, and the other driver switched
Thomson’s loaded trailer with an empty one while Thomson took a nap at a Savage
customer’s lot.
After Thomson woke up from his nap, he drove the empty trailer to Avalon’s place
of business. When Thomson arrived, Bruce was upset because he had wanted Thomson to
leave the empty trailer at the Savage customer’s lot. Bruce told Thomson that he was being
“written up” for moving a trailer without authorization. Later that day, Thomson e-mailed
Olson to inform him that he had been “dispa tched for 722 miles, totaling 16 hours” and
that he “[didn’t] want to run this crazy.” The next day, Thomson texted Olson, stating, “I
need to know if I did something wrong in your eyes. You already warned me that I would
piss dispatch off if I stuck to my guns on safety, and I did. What do you think?” After
receiving no reply, T homson sent Olson anot her text message expressing his safety
concerns. On May 29, Olson responded by telling Thomson that he “s[cr]ewed up by

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coming down [empty]” and added, “This is not a safety issue.” Thomson then told Olson
that he quit.
Thomson applied for unemployment benefits with the Minnesota Department of
Employment and Economic De velopment. The department issued a determination of
ineligibility, and Thomson appe aled. Following a hearing, an unemployment-law judge
(ULJ) concluded that Thomson was ineligible for unemployment benefits because he quit
without a good reason caus ed by Avalon. The ULJ a ffirmed his decision on
reconsideration. Thomson now appeals to this court by writ of certiorari.
D E C I S I O N
An employee who quits employment is generally ineligible for unemployment
benefits. Minn. Stat. § 268.095, subd. 1 (201 6). An exception exists when the employee
quits because of a good reas on caused by the employer. Id., subd. 1(1). This exception
provides eligibility when the quit occurred because of a reason: “(1) that is directly related
to the employment and for which the employer is responsible; (2) that is adverse to the
worker; and (3) that would co mpel an average, reasonable worker to quit and become
unemployed rather than remaining in the employment.” Id., subd. 3(a) (2016). An
employee generally “must complain to the employer and give the employer a reasonable
opportunity to correct the adverse working conditions before that may be considered a good
reason caused by the employer for quitting.” Id., subd. 3(c) (2016). But this court has
recognized that a complaint need not be made when “an employer violates federal trucking
laws related to the public safety.” Parnell v. River Bend Carriers, Inc. , 484 N.W.2d 442,
445 (Minn. App. 1992).

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“We review de novo a ULJ’s determinati on that an applicant is ineligible for
unemployment benefits.” Fay v. Dep’t of Emp’t & Econ. Dev. , 860 N.W.2d 385, 387
(Minn. App. 2015) (quotation omitted). “This court also gives deference to the credibility
determinations made by the UL J” and “will not disturb the ULJ’s factual findings when
the evidence substantially sustains them.” McNeilly v. Dep’t of Emp’t & Econ. Dev ., 778
N.W.2d 707, 710 (Minn. App. 2010) (quot ation omitted). The r eason why an employee
quit is a question of fact. Beyer v. Heavy Duty Air, Inc., 393 N.W.2d 380, 382 (Minn. App.
1986). But “[t]he issue of whether an employ ee had good reason to quit is a question of
law reviewed de novo.” Peppi v. Phyllis Wheatley Cmty. Ctr., 614 N.W.2d 750, 752 (Minn.
App. 2000).
The ULJ concluded that Thomson did not have a good reason for quitting that was
caused by Avalon because he turned down a delivery without adverse consequences, which
indicated that “there was no safety issue,” and because there was “no evidence Thomson
was forced to do anything he said he c ould or would not do.” On appeal, Thomson
maintains that he quit because of safety conc erns and that the record evidence does not
support the ULJ’s contrary finding.
Although Thomson is correct that the number of hour s he worked on May 26–27
constituted a violation of federal drive-time regulations, Thomson failed to follow Olson’s
instructions and tell the dispatcher that he could not make the Burnsville delivery because
of safety concerns. Furthermore, Thomson was never threatened with dismissal or
disciplined for refusing to make a delivery. When Thoms on did tell a dispatcher that he
could not make the Brainerd delivery on May 27 because of safety concerns, the dispatcher

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accommodated him. The record therefore indicates that the May 26–27 drive-time
violation is attributable to Thomson’s relu ctance to say no to dispatch, not Avalon’s
insistence that he break the law. See Minn. Stat. § 268.095, subd. 3(a)(1) (providing that a
good reason for quitting must be “d irectly related to the employment and for which the
employer is responsible” (emphasis added)); cf. Parnell, 484 N.W.2d at 443–45 (holding
that truck driver had good reason to quit attributable to employer when employer required
him to drive more hours than allowed by federal law and submit inaccurate driver logs and
employer admitted to violating federal regulations).
Because substantial evidence supports the ULJ’s finding that Thomson did not quit
because of safety concerns, and because Thomson did not have a good reason to quit caused
by Avalon, the ULJ di d not err by concluding Thomson is ineligible for unemployment
benefits.
Affirmed.