Leslie Bjerke, 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This opinion will be unpublished and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
A18-0211

Leslie Bjerke,
Relator,

vs.

U.S. Postal Service,
Respondent,

Department of Employment and
Economic Development,
Respondent.

Filed September 17, 2018
Affirmed
Jesson, Judge

Department of Employment and
Economic Development
File No. 35773446-3

Matthew E. Anderson, Anderson Law Group PPLC, St. Paul, Minnesota (for relator)

U.S. Postal Service, c/o U.S. Fe deral Employees, St. Louis, Mis souri (respondent
employer)

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

Considered and decided by Worke , Presiding Judge; Jesson, Judg e; 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
JESSON, Judge
Relator Leslie Bjerke worked as a substitute carrier for the U nited States Postal
Service starting in 1986. While he normally substituted for on e specific route, he was
asked to substitute for two additional routes in 2017 due to an employee shortage. Because
of physical limitations, Bjerke stated that he could not substitute for the new routes and he
signed a resignation form. He then applied for unemployment be nefits. The department
of employment and economic devel opment determined Bjerke was in eligible for
unemployment benefits, and an unemployment law judge affirmed, reasoning that Bjerke
quit and no quit exceptions applied. On appeal, Bjerke argues that he did not voluntarily
quit, and that even if he did, he quit because of a good reason caused by his employer. We
affirm.
FACTS
Relator Leslie Bjerke began work ing for respondent United Stat es Postal Service
(USPS) in 1986 as a substitute rural carrier associate. At the time he was hired, Bjerke was
informed that his job duty was to substitute on all routes as n ecessary. He worked
approximately 90 days in a calendar year, as he would substitute for a regular carrier. The
normal route Bjerke would substitute for was approximately 150 miles on dirt country
roads, with approximately 235 mail boxes. There were two other routes that Bjerke could
potentially substitute for: one wa s a city route approximately 60 miles long and the other
was considered the most difficult of the three as it was an out -of-town route with a large
amount of deliveries.

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By May 2017, Bjerke was the only substitute carrier left in his office, as the others
had either quit or been reassigned. Bjerke’s supervising postmaster informed him that he
had to substitute for two new routes until replacements were hi red. He had subbed for
those two routes in the past, most recently around Christmas. Bjerke opposed subbing for
all three routes, as he later explained:
I didn’t feel that I could handle it and learn two routes all over
again and have three routes to do with, I don’t know, probably
1500 mail boxes between the three routes. I’m just guessing at
that number but, I’ve, being 76 years old and a disabled vet, I
figured it was just a little beyond my capability anymore. It’s
a job for a 30 year old, not a 76 year old guy.

Throughout his employment, Bjerke worked “basically” the same schedule, but adding two
new routes would also mean that he would have to work a new sch edule and additional
hours. Bjerke expressed his conc erns to the supervising postma ster, who stated that she
understood. But Bjerke did not request any accommodations. Th e supervisor then told
Bjerke that he had three options: (1) stay employed and substit ute for all three routes;
(2) quit; or (3) resign. Bjerke chose to resign and completed a resignation form.
In July 2017, Bjerke applied for unemployment compensation, stating that he “was
told by the employer to quit or resign” and that he resigned be cause he “was physically
unable to perform the added daily duties being assigned.” In A ugust 2017, he was
determined ineligible to receive unemployment benefits because he quit his employment.
Later that month, Bjerke appealed the determination, and a hear ing occurred in October
2017.

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At the hearing, both Bjerke and his supervising postmaster testified. Bjerke focused
his testimony on the fact that he was told to quit or resign. He also mentioned that he may
have been forced out due to age discrimination. Furthermore, h e explained that he could
not handle the additional routes due to his physical state and that his supervising postmaster
should have been aware of his ailments. But Bjerke acknowledged that he did not request
an accommodation. The supervising postmaster also testified, and confirmed that she gave
Bjerke three options regarding the new routes: (1) stay employed and fill in the new routes;
(2) quit; or (3) resign. She stated that Bjerke responded that he physically could not do it,
and she gave him the resignation form and told him, “it’s your choice to fill that out.” The
supervisor denied knowing about medical conditions that would p revent Bjerke from
working, and denied any knowledge of age discrimination.
The unemployment-law judge (ULJ) determined that Bjerke volunt arily quit his
employment because he was not willing to substitute for all three routes. The ULJ further
determined that the quit-for-good -reason-caused-by-employer and the quit-when-
medically-necessary exceptions did not apply. Bjerke requested reconsideration, and
attached medical records highligh ting his ankle injury. In its reconsideration, the ULJ
found credible Bjerke’s testim ony that he could not substitute for all three routes due to
age and physical limitations, but concluded that the quit-when- medically-necessary
exception did not apply because he failed to request an accommo dation. As a result, the
ULJ affirmed its earlier decision.
Bjerke appeals.

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D E C I S I O N
On appeal, Bjerke challenges the ULJ’s determination that he vo luntarily quit
employment, and instead argues that he was terminated. Alternatively, Bjerke argues that,
even if he did voluntarily quit, the ULJ erred when it determined the quit-for-good-reason-
caused-by-employer exception did not apply. This court may rev erse or modify the
decision if the ULJ’s findings, inferences, conclusion, or deci sion are “unsupported by
substantial evidence in view of the entire record as submitted. ” Minn. Stat. § 268.105,
subd. 7(d)(5) (Supp. 20 17). Whether an individual quit her job or was terminated is a
question of fact. Lilledahl v. Process Displays Co. , 413 N.W.2d 273, 274 (Minn. App.
1987). However, once determined that an individual quit, whether she falls within one of
the exceptions to ineligibility is a question of law reviewed de novo. See Peppi v. Phyllis
Wheatley Cmty. Ctr., 614 N.W.2d 750, 752 (Minn. App. 2000).
To address these issues, we first examine the threshold issue o f whether he
voluntarily quit employment, and then we determine if any of the quit exceptions apply.
I. Bjerke quit employment.
The threshold issue in this matter is whether Bjerke voluntarily quit his job or was
terminated.1 Generally, an applicant who quits employment is ineligible for unemployment
compensation unless they fall within a statutory exception. Mi nn. Stat. § 268.095 (Supp.

1 Bjerke also contends, in the alternative, that he was constructively discharged. However,
the unemployment-compensation st atute explicitly prohibits this a r g u m e n t . See Minn.
Stat. § 268.095, subd. 2(b) (Sup p. 2017) (“When determining if an applicant quit, the
theory of a constructive quit does not apply.”).

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2017). Quit is defined as occurring “when the decision to end the employment was, at the
time the employment ended, the employee’s.” Minn. Stat. § 268.095, subd. 2(a).
Here, the facts surrounding the end of Bjerke’s employment are not in dispute and
substantially support the ULJ’s de termination that it was Bjerk e’s decision to end
employment. An ultimatum was giv en: Bjerke had to decide betwe en staying employed
and performing job duties or quitting. He chose to quit instead of substituting for the two
additional routes because he be lieved he was physically unable to add additional routes.
Furthermore, “[a]n employee who has been notified that the empl oyee will be discharged
in the future, who chooses to end the employment while employme nt in any capacity is
still available, has quit the employment.” Minn. Stat. § 268.095, subd. 2(c). Here, Bjerke
had “employment in any capacity,” as he had the option to subst itute for all three routes.
While employees may have good reasons to quit, some of which en able them to receive
unemployment compensation, that is an issue for whether a quit exception applies—not
whether a quit occurred.
Bjerke counters that a “voluntariness” test suggests a differen t result. This
voluntariness test refers to whe ther an employee exercised a fr ee-will choice and control
in the matter. Lewis v. Minneapolis Moline, Inc. , 288 Minn. 432, 438, 181 N.W.2d 701,
705 (1970). But the current une mployment-benefits statute does not contain a
voluntariness test; rather, it states that an “applicant who quit employment is ineligible for
all unemployment benefits” barring an applicable exception. Mi nn. Stat. § 268.095,
subd. 1. We further note that this “voluntariness” test is no longer used in recent caselaw.

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As a result, we follow the statutory language without factoring “voluntariness” into our
analysis. We therefore affirm the ULJ’s finding that Bjerke quit employment. 2
II. None of the quit excepti ons apply to Bjerke.

Bjerke argues in the alternative that should this court determi ne he quit, the good-
reason-caused-by-employer exception should apply. 3 Individuals who quit employment
are generally ineligible to receive unemployment compensation u nless they fall within a
statutory exception. Minn. Stat . § 268.095, subd. 1. Applican ts who quit because of a
good reason caused by the employer are not prohibited from rece iving unemployment
compensation. Minn. Stat. § 268.095, subd. 1(1).
A good reason caused by the employer is 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 compel an avera ge, reasonable worker to quit
and become unemployed rath er than remaining in the
employment.

2 Bjerke also argues that he did not quit because USPS knew or s hould have known that
asking him to substitute for two new routes would force him to quit. This argument does
not factor into the analysis of whether he quit, and is better addressed in whether Bjerke
had a good reason to quit caused by his employer.
3 While Bjerke does not address this exception on appeal, we note that individuals who quit
because of a serious illness or injury can be eligible for unemployment compensation. See
Minn. Stat. § 268.095, subd. 1(7). But this exception only applies “if the applicant informs
the employer of the medical problem and requests accommodation and no reasonable
accommodation is made available.” Id. While it is not required that the employee formally
request an accommodation in writing, and other circumstances pu tting the employer on
notice can potentially be suffici ent, here Bjerke explicitly te stified he did not request an
accommodation as he felt it would be futile. See Madsen v. Adam Corp., 647 N.W.2d 35,
39 (Minn. App. 2002) (determining that the burden to request an accommodation was
satisfied when the employee discussed potential accommodations with her employer for
her serious medical issue, despite the lack of a formal written request). Because Bjerke
concedes that he did not request an accommodation, this exception does not apply.

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Minn. Stat. § 268.095, subd. 3(a ). For an employer to cause an employee to quit, “there
must be some compulsion produced by extraneous and necessitous circumstances.”
Werner v. Med. Prof’ls LLC , 782 N.W.2d 840, 843 (Minn. App. 2010) (quotations
omitted), review denied (Minn. Aug. 10, 2010).
Bjerke contends that two independent reasons constitute good reasons caused by his
employer: (1) drastic change in employment terms; and (2) disab ility and age
discrimination. We address each reason in turn.
Drastic change in employment terms
Bjerke contends that his employment terms would have drastically changed in two
ways if he started substituting for all three routes: (1) an in crease in hours, in addition to
having to work more weekdays; and (2) having to work a significantly more difficult route
that he was unaccustomed to. He argues that these changes constitute a good reason to quit
caused by the employer. We disagree.
Bjerke first argues that his employment terms drastically changed because he would
have had to work more hours each week, along with more weekdays. This court has found
that a change in wages, hours, o r schedules can constitute good reasons to quit. See
Danielson Mobil, Inc. v. Johnson, 394 N.W.2d 251, 253 (Minn. App. 1986) (determining
a 19% reduction in wages is a “good cause” to quit); Rootes v. Wal-Mart Assocs., Inc., 669
N.W.2d 416, 419 (Minn. App. 2003 ) (determining that a decrease in hours and wages
constituted a good reason to quit); Krantz v. Loxtercamp Transp., Inc., 410 N.W.2d 24, 27
(Minn. App. 1987) (determining that an employer changing a work er’s schedule and

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requesting that he work weekends, when the employee was told he would have weekends
free, constituted a good reason to quit).
Here, however, Bjerke’s increase in hours and weekday shifts is inherent in his job
as a substitute carrier. Bjerke’ s job duty was to substitute f or routes as needed, which
meant his hours and schedule would necessarily fluctuate throug hout the year. While a
similar increase in hours, or change in shift, for a non-substitute position could potentially
establish a drastic change in employment constituting a good reason to quit caused by the
employer, that is not the case here.
Bjerke also argues that working additional and more difficult r outes that were
outside his normally scheduled route constitutes a drastic chan ge in employment terms.
We are not persuaded. While the ULJ focused on the fact that USPS informed Bjerke when
it hired him that it was his duty to substitute for any route a s necessary, we do not find it
necessary to look nearly 30 years in the past to ascertain job duties. More important than
what USPS stated his job duties were, testimony at the hearing established that Bjerke
substituted for the additional routes in the past few years, including over the holidays. And
because Bjerke substituted for th e additional routes in the rec ent past, USPS requesting
him to again substitute for them does not serve as a drastic change in employment terms.
Disability and age discrimination
Bjerke also contends that disa bility and age discrimination wer e present and both
constituted good reasons to quit caused by the employer. Court s have previously
determined that discrimination can constitute a good reason to quit caused by employer.
See Marz v. Dep’t of Emp’t Servs., 256 N.W.2d 287, 289 (Minn. 1977). (“The burden then

10
shifts to the employee to show go od cause attributable to the e mployer for leaving the
employment. Racial discrimination is such a cause.”).
Here, no evidence of disability or age discrimination exists to warrant the exception
applying. At the hearing, Bjerk e mentioned he believed he was discriminated against
because of his age, but the only reason he put forth was becaus e he was in his 70s. And
regarding disability discriminati on, he mentioned past injuries that cause him current
disabilities. While these facts may show he was in a protected class, they fail to show any
discrimination on the part of USPS. And Bjerke testified that he believed his supervisor
treated him fairly. Because there is no evidence of discrimina tion on the part of his
employer, we determine this does not constitute a good reason for Bjerke to quit caused by
the employer.
Bjerke argues that giving “an old, limping, injured man an impo ssible ultimatum”
constitutes discrimination. We disagree. Bjerke was only asked to do job assignments that
w e r e p a r t o f h i s j o b d u t i e s . W h i l e w e d o n o t d i s a g r e e t h a t h e may have had physical
limitations that prevented him from doing the routes, merely as king him to perform a job
duty does not constitute discrimination. This is especially tr ue in light of a reasonable
explanation as to why he was the one asked to substitute for th e two additional routes—
Bjerke was the only substitute carrier at his work location. B ecause there is not any
evidence that Bjerke was discriminated against, we affirm the ULJ’s determination that the
good-reason-caused-by-employer exception does not apply.
Affirmed.