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Fairman v. Merrill Lynch Pierce Fenner & Smith, Inc.

Court of Appeals of Minnesota

September 23, 2013

Jason Fairman, Relator,
v.
Merrill Lynch Pierce Fenner & Smith, Inc., Respondent, Department of Employment and Economic Development, Respondent

UNPUBLISHED OPINION

Department of Employment and Economic Development File No. 30204056-3

Jason Fairman, Minneapolis, Minnesota (pro se relator) Merrill Lynch Pierce Fenner & Smith, Inc., Minneapolis, Minnesota (pro se employer)

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

Considered and decided by Halbrooks, Presiding Judge; Stauber, Judge; and Hooten, Judge.

HOOTEN, JUDGE

Relator, by writ of certiorari, appeals from the decision of an unemployment law judge (ULJ) denying his application for unemployment benefits. He argues that he quit his job as a financial advisor because of a good reason caused by his employer, claiming that because he believed that he would be discharged, he resigned to prevent a discharge from appearing on his publicly accessible professional record. Relator also stresses that his employer did not contest his application for benefits, he received unemployment benefits based on similar facts on a prior occasion, and that coworkers under similar circumstances obtained unemployment benefits. Because the ULJ did not err by concluding that relator quit his employment without a good reason caused by his employer and is ineligible for benefits, we affirm.

FACTS

Relator Jason Fairman began working for Merrill Lynch in January 2011 as a fulltime financial advisor. Relator admitted that he quit his employment on or about September 9, 2012, with the expectation that he would be terminated if he did not quit. He explained that, in the event he was terminated for "non-performance, " that fact would have been accessible to the public and would have "negatively affect[ed]" his ability to acquire future clients. Specifically, on July 9, relator received "a final written warning from [the] complex director" advising him that he was "not meeting the minimum performance standards of a . . . financial advisor" and referencing a specific commission amount that he failed to satisfy. Relator was advised that he was required to "demonstrate immediate, significant, [and] sustained improvement of a . . . financial advisor by meeting" a particular goal. The letter did not reference a probationary period. Relator explained that in April, his employer dismissed 15 people, and he had "first-hand knowledge of nine people" who "were given the same letter and they were fired 30 days later."

Relator's employer scheduled a meeting with him and a "third-level" boss, with whom he had little prior interaction, to take place on September 10, 2012. Relator assumed that he would be terminated at the meeting, so he resigned on the day before the meeting because he did not want to attend the meeting and be discharged with no opportunity to resign. At the hearing, relator admitted that he was not informed of the meeting's subject matter or that he would be fired at the meeting and that there were no other reasons prompting his decision to resign.

Relator applied for unemployment benefits and was initially found to be ineligible by the Minnesota Department of Employment and Economic Development (DEED). Relator appealed the determination, and an evidentiary hearing was held before a ULJ. After reviewing relator's testimony, the ULJ determined that relator "quit because he believed he was going to be discharged, " that the conduct of relator's employer would not compel an average, reasonable worker to quit and become unemployed, and that, while relator may have had a legitimate personal or business reason to quit, he did not quit because of a good reason caused by his employer "as defined by Minnesota unemployment insurance law." Relator filed a request for reconsideration, and the ULJ affirmed the decision, specifically rejecting relator's arguments that he previously received unemployment benefits under similar circumstances, that his employer did not participate in the hearing, and that other employees were discharged under similar circumstances. This certiorari appeal follows.

DECISION

When reviewing the decision of a ULJ, this court may affirm the decision, remand the case for further proceedings, or reverse or modify the decision if the substantial rights of the relator have been prejudiced because the conclusion, decision, findings, or inferences are "(1) in violation of constitutional provisions; (2) in excess of the statutory authority or jurisdiction of the department; (3) made upon unlawful procedure; (4) affected by other error of law; (5) unsupported by substantial evidence ...


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