Anthony Browne, 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This opinion will be unpublished and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
A17-1093

Anthony Browne,
Relator,

vs.

M. A. Mortenson Company, Inc.,
Respondent,

Department of Employment and Economic Development,
Respondent.

Filed April 9, 2018
Affirmed
Hooten, Judge

Department of Employment and Economic Development
File No. 34273692-9

Thomas H. Boyd, John N. Sellner, Winthrop & Weinstine, P.A., Minneapolis, Minnesota
(for relator)

M.A. Mortenson Company, Inc., St. Louis, Missouri (respondent employer)

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

Considered and decided by Hooten, Presiding Judge; Johnson, Judge; and Kirk,
Judge.
2
U N P U B L I S H E D O P I N I O N
HOOTEN, Judge
Relator challenges the decision of an unemployment law judge (ULJ) that he is
ineligible for unemployment benefits after electing to quit his employment. He contends
that the ULJ erred by considering the testimony of the respondent-employer’s witnesses to
be credible in light of other evidence. He also argues that , even if he had quit his
employment, the ULJ erred by determining that the statutory child care exception did not
apply. Because substantial evidence in the record supports the ULJ’s credibility
determination, and because the respondent-employer offered a reasonable accommodation
that made the child care exception inapplicable, we affirm.
FACTS
This case involves a second appeal fro m a ULJ’s decision that relator Anthony
Browne was ineligible for unemployment benefits for a short time period after his
employment with M.A. Mortenson ended in December 2014. Much of the fact ual and
procedural history is detailed in our previous opinion, which reversed and remanded the
ULJ’s initial decision for additional findings. See Browne v. M.A. Mortenson Co. , Inc.,
No. A16-0730, 2017 WL 279570 (Minn. App. Jan. 23, 2017). As the result of a second
evidentiary hearing, however, the record of the u nderlying facts has been more fully
developed.
Browne was employed as a cement mason for Rainbow, a construction company,
on a seasonal basis for several years. His work typically end ed during the winter months,
at which time he assisted in taking care o f his two school -age children while his wife
3
increased her work schedule. His wife was normally the primary care provider for their
children and his mother serve d as the secondary provider. Because the children attended
school outside of their district, they required transportation from either Br owne, his wife,
or his mother.
In mid-October 2014, Rainbow laid off Browne earlier than usual. Browne was
then hired by respondent M.A. Mortenson, another construction company, as a cement
mason in late October. In early December, while Browne was working at Mortenson and
as his wife had increased her own workload, his mother became ill and could not drive his
children to school. His wife altered her work schedule for the first week of December to
drive the ch ildren. Browne and his wife explored other possibilities to transport their
children to school, including a shuttle service and daycare centers, but did not find a service
that could accommodate their needs.
On December 8, Browne informed his foreman, Ja y Quarnstrom, that he could not
continue working at Mortenson because he needed to care for his children. Browne asked
Quarnstrom for a reduced work schedule, but Quarnstrom denied the request because he
needed Browne to work full -time. Three days later, Browne’s mother was hosp italized.
Even though Browne knew that Mortenson had work available, he requested that
Quarnstrom approve a layoff from work. In denying Brown’s request, Quarnstrom
explained to Browne that any time he took off from work would be considered voluntary.
Quarnstrom then notified his field operations manager that Browne had quit. The field
operations manager entered a human -resources form, dated December 12, indicating that
Browne’s separation was voluntary and that he had quit.
4
Browne applied for an unemployment-benefits account to be effective on December
14, 2014. Respondent Minnesota Department of Employment and Economic Development
(DEED) determined that Browne was ineligible for unemploym ent benefits due to his
voluntary separation from Mortenson for the time period from December 14, 2014 to the
date when he returned to work for Rainbow in February 2015. Browne then contacted
Mortenson to address his claim for unemployment benefits. In an effort to assist Browne,
the field operations manager amended and backdated the human -resources form, dated
December 11, 2014, to provide that Browne’s separation was involuntary and due to a
workforce reduction. After holding an evidentiary hearing, the ULJ initially decided that
Browne was ineligible for unemployment benefits because he took a voluntary leave of
absence. We reversed and remanded the ULJ’s order, directing the ULJ to make additional
findings. See Browne, 2017 WL 279570, at *6.
On remand, the ULJ conducted a second evidentiary hearing, at which Quarnstrom
and a human -resources representative testified on Mortenson’s behalf. Finding that
Quarnstrom and the human -resources representative “offered a complete picture of the
events,” the ULJ issued a decision determining that Browne had quit his employme nt at
Mortenson. The ULJ reasoned that Browne controlled the decision to end his employment
despite the available work and that Mortenson had provided a reasonable accommodation
in the form of a voluntary le ave of absence for six weeks. The ULJ also concluded that
Browne did not quit due to a loss of child care because he failed to make reasonable efforts
to obtain other child care before quitting, as required by Minn. Stat. § 268.095, subd. 1(8)
5
(2016). Browne sought reconsideration of the decision. The ULJ affirmed the decision,
reiterating that Quarnstrom’s testimony was both credible and reliable.
This second certiorari appeal followed.
D E C I S I O N
Browne contends that the U LJ erred by finding the test imony of Mortenson’s
witnesses to be credible in light of the substa ntial evidence in the record. He also asserts
that the ULJ erred by determining that the child care exception under Minn. Stat. § 268.095,
subd. 1(8) did not apply to his circumstances. We may reverse, remand, or modify a ULJ’s
decision if a relator’s substantial rights have been prejudiced because the findings,
conclusions, or decisions are affected by an error of law, lacked the support of substantial
evidence in the record, or was arbitrary and capricious. Minn. Stat. § 268.105, subd.
7(d)(4)–(6) (2016).
I.
Browne claims that the ULJ’s decision is arbitrary and capricious and unsupported
by substantial evidence in the record because the ULJ failed to adequa tely evaluate the
credibility of the witnesses’ testimony and failed to address the inconsistencies in
Mortenson’s paperwork. Substantial evidence is defined as “(1) such relevant evidence as
a reasonable mind might accept as adequate to support a conclus ion; (2) more than a
scintilla of evidence; (3) more than some evidence; (4) more than any evidence; or (5) the
evidence considered in its entirety.” Dourney v. CMAK Corp. , 796 N.W.2d 537, 539
(Minn. App. 2011) (quotation omitted). Appellate courts review the ULJ’s factual findings
“in the light most favorable to the decision and will not disturb those findings as long as
6
there is evidence in the record that reasonably tends to sustain them.” Wilson v. Mortg.
Res. Ctr., Inc., 888 N.W.2d 452, 460 (Minn. 2016) (quotation omitted).
We defer to the ULJ on credibility determinations. Peterson v. Nw. Airlines Inc. ,
753 N.W.2d 771, 774 (Minn. App. 2008), review denied (Minn. Oct. 1, 2008). Indeed,
“[c]redibility determinations are the exclusive province of the ULJ and will not be
disturbed on appeal.” Bangtson v. Allina Med. Grp. , 766 N.W.2d 328, 332 (Minn. App.
2009) (quotation omitted). And we do not reweigh the evidence on appeal. See Nichols v.
Reliant Eng’g & Mfg., Inc. , 720 N.W.2d 590, 594 (Minn. App. 2006) (“When witness
credibility and conflicting evidence are at issue, we defer to the decision-maker’s ability to
weigh the evidence and make those determinations.”).
The ULJ determined that Mortenson’s witnesses “offered a complete picture of the
events” and that Quarnstrom’s testimony r egarding work availability was credible.
Quarnstrom testified that when Browne told him that he wanted to take time off from work,
Quarnstrom stated, “[W]ell, if you’re taking time off, then you’re taking it voluntarily,
because I still ha[ve] work at the Vikings Stadium.” Quarnstrom also testified that “there
was constant work at the time” and that after Browne mentioned that he would be taking
his own time off, Quarnstrom called the field operations manager and said, “I need a
replacement now because apparently he’s quitting on me.” At the hearing, Browne
admitted that he knew that work was still available before leaving Mortenson. Due to the
consistency in both Browne’s and Quarnstrom’s versions of the events, we conclude that
the ULJ’s credibility determination, which is based on their assertions that work was
available, is supported by substantial evidence.
7
Browne’s argument also depends on a statute which provides that “[w]hen the
credibility of a witness testifying in a hearing has a significant effect on the outcome of a
decision, the unemployment law judge must set out the reason for crediting or discrediting
that testimony.” Minn. Stat. § 268 .105, subd. 1a (2016); see also Ywswf v. Telep lan
Wireless Servs., Inc. , 726 N.W.2d 525 , 531 –32 (Minn. App. 2007). “When assessing
witness credibility, the ULJ may consider all relevant factors, including, but not limited to,
the witness’s interest in the case’s outcome, the source of the witness’s information, the
witness’s demeanor and experience, and the reasonableness of the witness’s testimony.”
Wichmann v. Travalia & U.S. Directives, Inc., 729 N.W.2d 23, 29 (Minn. App. 2007). In
making credibility determinations, the ULJ may also take into account whether a witness’s
testimony is “reasonable compared with other evidence” and “corroborated by other
testimony and evidence.” Ywswf, 726 N.W.2d at 532–33.
Browne contend s that discrepancies between Mortenson’s human -resources
representative and Quarnstrom’s testimony regarding Browne’s proposed scheduling
accommodation demonstrate that the ULJ erred in making her credibility determination.
The human-resources representative testified that Quarnstrom had told her “there was no
formal accommodation requested” and that Browne did not request a change in his
schedule. At the hearing, Quarn strom at first testified that Browne did not ask for an
accommodation or a later start time but later stated that he believed he did have a
conversation with Browne in which Browne ask for a reduced work schedule. While there
may have been no “formal” accommodation requested, the evidence indicates that Browne
did, at least informally, ask Quarnstrom for an accommodation. The testimony of both the
8
human-resources representative and Quarnstrom is consistent in that Browne approached
Quarnstrom requesting a layoff. The ULJ found that Mortenson was willing to
accommodate Browne by allowing him to take a leave from work, but with the expectation
that he could return in about six weeks.
This leads to Browne’s next challenge of Quarnstrom’s credibility regarding
whether he would have been able to return to work at Mortenson. 1 When questioned
whether Browne asked for any time off from work, Quarnstrom first stated he did not recall.
He then explained that he did not give Browne the option of returning in six weeks because
he needed to replace him. But when later asked if he expected Browne to re turn to
Mortenson, he said, “Yep, yep. That was a possibility.” Despite the fact that Quarnstrom’s
recollection of the events is not perfect, the ULJ must have determined that this last
response was credible and consistent with Browne’s version of the ev ents. The following
exchange occurred between the ULJ and Browne at the second evidentiary hearing:
ULJ: All right. So when you were faced with, on December
11, when you approached Mr. Quarnstrom, and it came to the
point of making the decision to end, y ou know, to, to separate
from the employment and not return, would you say that was
your decision or Mr. Quarnstrom’s decision?
BROWNE: Mr. Quarnstrom, as a good -hearted gesture, faced
with the information that I just shared with you, I shared with
him, and it was left open for me to go back, and I never went
back, ‘cause as my mother was getting better, my primary
employer, Rainbow, Incorporated, called me back in February.

1 Browne also contends that Mortenson’s paperwork, including the two human -resources
forms and additional forms from its financial agent, highlight s errors in the ULJ’s
credibility determination. Although Mortenson’s differing explanations for B rowne’s
separation from employment in the two human -resources forms is odd, none of the
paperwork is inherently inconsistent with the testimony provided at the second evidentiary
hearing.
9
ULJ: Okay. So you’re saying it was left open ended with the
possibility that you might return, or could return.
BROWNE: Yes, ma’am.

Both Browne’s and Quarnstrom’s testimony indicates that Mortenson remain ed open to
Browne returning to work after resolving his personal issues.
Unlike in Wichmann, where the ULJ failed to make any credi bility determinations,
the ULJ here explained why she determined that Quarnstrom’s testimony was reliable. See
Wichmann, 729 N.W.2d at 29 (concluding that ULJ did not satisfy requirement of prior
version of Minn. Stat. § 268. 105, subd. 1a , because ULJ made findings that relied on
credibility assessment but failed to make credibility determinations). While the ULJ’s
rationale for Quarnstrom’s credibility may not be as thorough and detailed as desired, it is
clear that the ULJ found Quarnstr om’s testimony to be reasonable and consistent in that
Mortenson had work available and that Browne’s departure was voluntary due to family -
related issues. This supports the ULJ’s ultimate decision that Browne chose to end his
employment with Mortenson. We conclude that the ULJ’s credibility determination was
sufficient to meet the statutory requirement of Minn. Stat. § 268.105, subd. 1a.
II.
Browne also contends that , even if he quit his employment at Mortenson, the ULJ
erred by determining that the child care exception, pursuant to Minn. Stat. § 268.095, subd.
1(8), does not apply. Whether an employee who quits falls within an exception that
10
qualifies him for unemployment benefits is a question of law that we review de novo. See
Peppi v. Phyllis Wheatley Cmty. Ctr., 614 N.W.2d 750, 752 (Minn. App. 2000).
If an applicant for unemployment benefits quit his employment, he is ineligible for
benefits unless he fits into a statutory exception. Minn. Stat. § 268.095, subd. 1 (2016).
Under this statute, an appl icant may be eligible for unemployment benefits even after
quitting his employment if “the applicant’s loss of child care for the applicant’s minor child
caused the applicant to quit the employment, provided the applicant made reasonable effort
to obtain o ther child care and requested time off or other accommodation from the
employer and no reasonable accommodation is available.” Id., subd. 1(8).
The ULJ found that Browne could not provide transportation for his children’s
schooling because his wife had increased her work hours and his mother became ill. But
the ULJ determined that the child care exception did not apply because Browne failed to
make a reasonable effort in obtaining alternative child care before ending his employment
at Mortenson. The ULJ reasoned that, although Browne searched for public transportation
services, including a shuttle service and daycare centers, he made no effort to arrange any
private transportation such as shared rides with other families. The ULJ also explained
that Browne’s wife appeared capable of altering her work schedule to continue driving the
children.
Browne claims that the ULJ should have determined that he made reasonable efforts
sufficient to qualify him for unemployment benefits under this exception. We d isagree.
Even assuming without deciding that the child care exception encompasses school
transportation, this exception does not apply if a reasonable accommodation is available.
11
See id. As we detailed previously, the evidence in the record indicates that Mortenson had
offered Browne an accommodation with the possibility that he could return to work .
Browne explicitly agree d that Quarnstrom was accommodating his request to allow him
the opportunity to facilitate his personal family issues. We conclude that this constitutes a
reasonable accommodation under the statute.
Because Mortenson had offered Browne a reasonable accommodation, we do not
need to determine whether Browne exercised reasonable efforts in finding alternative child
care. We therefore conclude that the ULJ did not err by determining that Browne does not
qualify for the child care exception under Minn. Stat. § 268.095, subd. 1(8).
Affirmed.