Sandra J. Hartley, Relator, vs. Walser Burnsville Motors, Inc., Respondent, Commissioner of Employment and Economic Development, Respondent.

Sandra J. Hartley, Relator, vs. Walser Burnsville Motors, Inc., Respondent, Commissioner of Employment and Economic Development, Respondent. A04-1859, Court of Appeals Unpublished, June 7, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1859

 

Sandra J. Hartley,

Relator,

 

vs.

 

Walser Burnsville Motors, Inc.,

Respondent,

 

Commissioner of Employment and Economic Development,

Respondent.

 

Filed June 7, 2005

Affirmed

Huspeni, Judge*

 

Department of Employment and Economic Development

File No. 9873 04

 

Michael K. O'Tool, 18073 Bernard Trail, Brainerd, MN 56401 (for relator)

 

Walser Burnsville Motors Inc., 14750 Buck Hill Road, Burnsville, MN 55306-4984 (respondent)

 

Linda A. Holmes, Department of Employment and Economic Development, First National Bank Building, 332 Minnesota Street, Suite E200, St. Paul, MN 55101-1351 (for respondent Commissioner of Employment and Economic Development)

 

            Considered and decided by Randall, Presiding Judge; Toussaint, Chief Judge; and Huspeni, Judge.

 

U N P U B L I S H E D  O P I N I O N

 

HUSPENI, Judge

 

            In challenging the decision of the senior unemployment review judge disqualifying relator from receiving unemployment benefits because she did not quit for a good reason caused by her employer, relator contends that the senior unemployment review judge erred by adopting the unemployment law judge's determination of disqualification and by denying relator's request for additional proceedings.  Because the decision of the senior unemployment review judge is supported by the record, we affirm.

FACTS

 

Relator Sandra J. Hartley worked as a switchboard operator for respondent Walser Burnsville Motors, Inc. from November 1999 until April 26, 2004.  In May 2003, someone identified as James called to speak with Walser employee Bonnie Senske.  James was Senske's ex-boyfriend and was calling from out of state.  When James was unable to reach Senske, his call rolled over to the main switchboard.  Relator answered the call, and James made obscene and threatening comments.  Relator notified management of the incident.  According to respondent's controller, Shelly Riach, management responded by contacting the police and the phone company.  In her testimony before the unemployment law judge, Riach stated:

The police said that since [James] was out of state they could not do anything with him.  If he did return to Minnesota he would be arrested.  The phone company was also contacted, we could not block that number because it was out of state and they advised us that the only thing we can do is hang up because he would stop calling.

 

James continued to call and on May 8, 2003, Riach sent an e-mail informing employees of the situation.  In her e-mail, Riach stated:

As some of you know, Bonnie's ex boyfriend is calling here and harassing Bonnie.  When she does not take the calls, he calls other numbers or the main number, and is NOT talking real nice.  We have talked to the phone company, and we can't block the number as it is out of state.  Also, the Burnsville Police where [sic] out here to address this.  The only thing he suggested that we can do right now is when he calls, as soon as you know it is him or suspect it is him, put him on hold.  He will hang up, and if no one talks to him, he will quit. 

Please bear with us on this; our options are limited at this point.  If he decides to bother everyone, there is not much we can do other than ignore him.  No one needs to be talked to like he is talking and is not expected to put up with it.  I have talked to Bonnie, and she is trying to handle this the best she can while at work.  Please let me know if he keeps calling, and keep me informed on this and if you have any comments.  Thank you!

 

            When asked how long the calls continued, relator initially testified that the abusive phone calls continued through June 2003.  In later testimony, however, relator stated that the calls continued until she quit in April 2004.  When asked if she kept respondent informed of the continuing calls, relator stated, "I tried, but after a while I knew they weren't going to do anything other than to tell me to hang up because there wasn't anything they could do about it."  Relator later testified that she did inform Riach of the continuing calls.  But in her closing testimony, relator stated that she did not complain to anyone after July 2003 "because it never did any good."  Riach testified that (1) relator last complained of the calls in June 2003; (2) she was not aware of relator receiving abusive calls after June 2003; and (3) she knew James continued to call Senske after June 2003, but did not think the calls were abusive, hostile, or threatening. 

            On April 23, 2004, relator submitted a letter to respondent indicating that she was having problems with stress, sleeping, and interacting with others.  Relator stated that she was temporarily unable to work and requested a leave of absence.  Respondent asked relator to collect forms for her leave.  Instead of filling out the forms, however, relator tendered her resignation on April 26, 2004.  Relator testified that she quit because "I couldn't take the verbal harassment and abuse and I couldn't take the stress involved with it."  But Riach testified that relator made no reference to the harassing phone calls when she requested the leave.  And the record does not indicate that relator informed respondent that she requested the leave or that she quit because of the harassing calls. 

            An adjudicator for the Department of Employment and Economic Development determined that relator was disqualified from receiving unemployment benefits.  The adjudicator found that relator did not inform respondent that she continued to receive the phone calls, and that the submitted evidence did not show that relator quit for a good reason caused by the employer.  Following a hearing, an unemployment law judge affirmed the adjudicator's determination of disqualification.  Relator filed a petition for further review, and the senior unemployment review judge affirmed by adopting the unemployment law judge's findings of fact and decision as the final decision of the Department of Employment and Economic Development.  In doing so, the senior unemployment review judge stated that the determinative facts were not in dispute, and, therefore, declined to conduct further proceedings.  The matter is before this court on relator's writ of certiorari. 

D E C I S I O N

 

I.

 

            Appellate courts review the findings of the senior unemployment review judge rather than those of the unemployment law judge.[1]  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  In this case, the senior unemployment review judge adopted the findings of fact and decision by the unemployment law judge as the final findings of fact and decision of the Department of Employment and Economic Development.  We review these factual findings in the light most favorable to the decision to determine whether the evidence reasonably sustains them.  Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).  Whether an employee has a good reason to quit is a question of law subject to de novo review.  See id.

            An applicant who quits employment is disqualified from receiving unemployment benefits unless, among other exceptions, the employee quits for a good reason caused by the employer.  Minn. Stat. § 268.095, subd. 1(1) (Supp. 2003).[2]  Under relevant Minnesota law:

            (a)  A good reason caused by the employer for quitting is a reason:

            (1) that is directly related to the employment and for which the employer is responsible; and

            (2) that is significant and would compel an average, reasonable worker to quit and become unemployed rather than remaining in the employment.

 

            (b) If an applicant was subjected to adverse working conditions by the employer, the applicant 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.

 

            . . . .

 

            (e) An applicant has a good reason caused by the employer for quitting if it results from sexual harassment of which the employer was aware, or should have been aware, and the employer failed to take timely and appropriate action.

 

Minn. Stat. § 268.095, subd. 3 (Supp. 2003).

            It is well settled that good cause to quit may be established if the employee has been subjected to harassment on the job and can show that she gave the employer notice of the harassment and an opportunity to correct the problem.  Tru-Stone Corp. v. Gutzkow, 400 N.W.2d 836, 838 (Minn. App. 1987).  "Then, if the employee is provided with the expectation of assistance from his employer in eliminating the harassment, the employee must continue to apprise the employer of additional harassment."  Id.(quotation omitted). 

            The record contains conflicting testimony with respect to when relator last informed respondent of the harassing phone calls.  When the parties have presented conflicting evidence on the record, this court must defer to the senior unemployment review judge's ability to weigh the evidence.  Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995).  In this case, the senior unemployment review judge adopted the findings and decision by the unemployment law judge, so we must defer to those findings.  In doing so, this court may not weigh the evidence on review.  Id.  Viewing the factual findings in the light most favorable to the decision, we cannot conclude that relator quit due to a good reason caused by respondent.  The record supports the finding that respondent "acted reasonably by calling the police and seeking the assistance of the telephone company to try and block the calls."  The record also supports the finding that relator "did not complain to [respondent] after June of 2003."  This substantial delay between relator's last complaint and her leaving employment severely undermines her allegation that she quit with good reason caused by respondent.  While relator may wish to argue that further complaint after June of 2003 would have been futile, it is clear from respondent's May 8, 2003 e€‘mail message that report of further disruptive phone calls would have been appropriate.  Also, there is no evidence that relator followed the advice of the police, relayed by respondent, to "hang up" when the objectionable phone calls were received.  Finally, relator argues that she was subjected to sexual harassment because of vulgarities uttered and threats of rape made during the disruptive phone calls, and that a hostile environment was created.  Our analysis of the reasonableness of respondent's response is fully applicable to these allegations, however.  The record supports the determination of the unemployment law judge as adopted by the senior unemployment review judge that the last report of this kind of activity was made in June 2003.  Relator did not leave employment until April 2004, and even at that late date did not allege that any of the conditions she now complains of were the cause of her leaving her employment.

            Relator also claims that "the leasing manager constantly used vulgar language towards and in front of her."  The unemployment law judge found that "[o]n one occasion, [relator's] female manager used the ‘F' word and was loud with another manager," but that relator "was stressed due to the threatening and abusive calls."  Relator does not challenge this finding.  In her brief, relator states that she reported the leasing manager's vulgar language to management.  But our review of the record indicates that relator testified that management was aware of the leasing manager's language and that management claimed to have the situation under control; relator did not testify that she, herself, had reported it.  Relator also claims that Senske "would use vulgar language around the office and specifically at [relator]."  But relator testified that she did not complain to respondent about Senske's comments. 

            While we are not insensitive to the disruption, stress, and discomfort relator experienced from the phone calls, on this record, we cannot say that respondent failed to take appropriate action.  Nor do we take lightly vulgar language in the work place, and the possibility that such language may contribute to the creation of a hostile environment.  Nevertheless, relator did not challenge the finding that her stress came from the phone calls.  The record does not indicate that relator quit because of the leasing manager's vulgar language or because of Senske's alleged comments.  The evidence reasonably supports the determination of the senior unemployment review judge that relator did not quit for a good reason caused by respondent.

II.

 

            Relator claims that she did not receive a fair hearing because a witness she subpoenaed was not available at the time of the hearing and the unemployment law judge did not continue the hearing for enforcement of the subpoena.  Parties are required to comply with subpoenas issued by the Department of Employment and Economic Development.  Ntamere v. DecisionOne Corp., 673 N.W.2d 179, 182 (Minn. App. 2003).  Unemployment law judges must enforce those subpoenas or state on the record legally sufficient reasons for declining to enforce them.  Id.  If a subpoenaed party fails to attend a hearing without a legally sufficient reason, we must determine whether the relator's inability to obtain the witness's testimony constituted a procedural defect so significant that the case should be remanded "to provide a full and fair hearing and to develop a complete record." Id. at 181. 

            The witness whose unavailability is at issue was employed by respondent.  Riach testified that the witness could not participate in the hearing because she was sick.  In closing remarks, relator's representative stated that respondent "deliberately caused one witness to not be available," and "I would reserve the right to reopen this if it becomes necessary and anything she would have to testify to today would be admissible and the second step of an appeal if that becomes necessary."  But when the unemployment law judge asked what the witness would have testified to, the representative stated, "More of the same thing that [another co-worker] did but she also had a medical condition that was aggravated by the hostile environment." 

            In her brief, relator does not explain how she was denied a fair hearing without the absent witness's testimony.  She states only that "she should have been entitled to present a full and proper case in support of her unemployment claim," and that this "was not fully possible without the missing witness."  But there is no indication that the witness would have provided testimony relevant to either respondent's ability to control the phone calls or to the date when relator last complained to respondent about any of the issues about which relator complains.  Although the unemployment law judge made no specific finding as to why he would not continue the hearing, a proper inference is that the witness would have testified to matters already made part of the record, and that, therefore, such testimony would have been cumulative.

            Relator also states that the unemployment law judge "disallowed two of [her] requested witnesses."  Relator did not brief arguments with respect to these two witnesses.  At the hearing, relator merely stated, "I want it on the record to show that I submitted four names as witnesses to be called and that Elizabeth said I could only use two because anymore would be repetitive and redundant."  On this record, and because the issue was not adequately developed either at the hearing or on appeal, we cannot say that relator was denied a full and fair hearing. 

            Affirmed.

*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1]  The legislature substituted the term "senior unemployment review judge" for representative of the commissioner.  2004 Minn. Laws ch. 183, § 71.

[2] The revisor of statutes inadvertently substituted the term "ineligible for" for the term "disqualified from" in Minn. Stat. § 268.095, subds. 1, 4, 7, 8(a) (Supp. 2003).  See Minn. Stat. § 268.095, subds. 1, 4, 7, 8(a) (2002) (using term "disqualified from"); 2003 Minn. Laws 1st Spec. Sess. ch. 3, art. 2, § 11 (making other changes to Minn. Stat. § 268.095, subd. 1, but retaining term "disqualified from"); 2003 Minn. Laws 1st Spec. Sess. ch. 3, art. 2, § 20(j), (k) (directing revisor to change the term "disqualified from" to "ineligible for" only in Minn. Stat. § 268.095, subd. 12, and then to renumber to Minn. Stat. § 268.085, subd. 13b).