Evelyn Belton-Kocher, Appellant, vs. St. Paul School District, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat § 480 A. 08, subd. 3 (2000).

STATE OF MINNESOTA

IN COURT OF APPEALS

Patricial L. Braaten,

Relator,

vs.

Minnesota Correctional Facility,

Respondent,

Commissioner of Economic Security,

Respondent.

Affirmed

Department of Economic Security

Agency File No. 477099

Patricia L. Braaten, Five Orleans Avenue, Inver Grove Heights, MN 55076 (pro se relator)

Minnesota Correctional Facility, Stillwater Location, 970 Pickett Street North, Bayport, MN 55003 (respondent employer)

Kent E. Todd, Minnesota Department of Economic Security, 390 North Robert Street, St. Paul, MN 55101 (for respondent commissioner)

            Considered and decided by Lansing, Presiding Judge, Peterson, Judge, and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            On appeal from the Commissioner of Economic Security's decision disqualifying her from reemployment-insurance benefits, Patricia Braaten argues the commissioner erred in concluding she did not quit her employment for a good reason caused by Minnesota Correctional Facility (MCF), her employer.  Braaten also argues the record does not support the Commissioner's determination that she did not make reasonable efforts to remain employed despite serious illness.  We affirm.

Patricia Braaten worked as a corrections officer for MCF from September 1997 until she resigned in August 1999.  Braaten applied for reemployment-insurance benefits, stating that she resigned because her supervisors harassed her after she filed a complaint with her union in 1998.  The department denied her application, and Braaten appealed.  A reemployment-compensation judge reversed, and MCF then appealed to the Commissioner of Economic Security.  The commissioner reversed the reemployment-compensation judge's decision, concluding that Braaten had quit without a good reason attributable to MCF and had failed to make reasonable efforts to retain her employment despite serious illness.

In the findings underlying the conclusions, the commissioner credited Braaten's testimony that she had been assigned to the visiting area, one of the most difficult assignments within MCF, more than other MCF officers; that she had been cautioned that employees should not use e-mail during work hours; and that she had been criticized for having difficulty completing a report and perceived that her supervising sergeant examined and criticized her work more frequently than her co-workers' work.  The warden investigated Braaten's complaint that these actions constituted harassment and concluded that it was unfounded.

            Braaten testified that, following that complaint, a supervising lieutenant harassed her by criticizing her performance in the visiting area, answering one of her questions by rolling his eyes and referring her to the instruction manual, and telling her that her performance in the visiting area was unsatisfactory and she should seek work in a different area.  MCF investigated Braaten's second harassment complaint based on these actions and, once again, concluded it was unfounded.

            Braaten consulted a doctor because of job-related stress and asked MCF for a medical leave.  MCF gave Braaten a three-week family medical leave.  Braaten asked MCF to extend her leave an additional month, and MCF asked Braaten for a doctor's statement authorizing the extension.

            Braaten's doctor provided a statement after the leave's expiration date indicating that Braaten was suffering from generalized depression and was unable to perform her duties.  Braaten's doctor stated that he would examine Braaten again on July 20 and hoped Braaten would be able to return to work then.  On July 20, Braaten consulted her doctor, who then sent MCF a letter stating Braaten could return to work on a trial basis under other supervisors until completion of the harassment investigation.

Because the investigation had been completed, MCF's director of human resources asked Braaten orally and in writing to return to work in ten days or to submit a doctor's statement excusing her absence.  The director and Braaten disputed whether Braaten told the director that she was unable to provide a doctor's statement because her doctor was on vacation for two weeks.  Braaten did not dispute that the director orally and in writing told Braaten that she could bid for other positions and asked her to contact a particular employee in human resources to discuss her bidding status.  Braaten was familiar with the bidding process because she had previously bid on open positions unsuccessfully, but she chose not to bid on currently available positions.

Braaten did not return to work at the end of the ten days.  Nor did she provide MCF with the requested medical documentation.  Braaten told the director she would return to work the following week, but instead submitted a letter of resignation stating she was resigning because of harassment.

I

An employee who voluntarily resigns from employment is disqualified from receiving reemployment-insurance benefits unless the employee resigns because of "a good reason caused by the employer."  Minn. Stat. § 268.095, subd. 1(1) (Supp. 1999).  Whether an employee has a good reason to resign is a question of law subject to de novo review. Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).  But a reviewing court must defer to the commissioner's factual findings when there is evidence reasonably tending to sustain them.  White v. Metropolitan Med. Ctr., 332 N.W.2d 25, 26 (Minn. 1983).

            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; and (2) that is significant and would compel an average, reasonable worker to quit and become unemployed rather than remain[ ] in the employment."  Minn. Stat. § 268.095, subd. 3(a) (Supp. 1999).

            "Good reason" encompasses conduct that is sufficiently harsh or abusive to constitute harassment if the employer knows of the harassment and fails to take adequate measures to prevent it.  McNabb v. Cub Foods, 352 N.W.2d 378, 383-84 (Minn. 1984); Larson v. Department of Econ. Sec., 281 N.W.2d 667, 669 (Minn. 1979).  Conduct involving taunting, threats, name-calling, and derogatory remarks constitutes harassment.  Tru-Stone Corp. v. Gutzkow, 400 N.W.2d 836, 838 (Minn. App. 1987).  Yelling and explosive tantrums on a daily basis similarly constitute harassment.  Wetterhahn v. Kimm Co., 430 N.W.2d 4, 5 (Minn. App. 1988).

But unequal treatment by an employer with respect to work assignments, overtime work, lunch invitations, and other work-related advantages does not constitute harassment.  Portz v. Pipestone Skelgas, 397 N.W.2d 12, 13-14 (Minn. App. 1986). "Harassment" also excludes an employee's irreconcilable differences with others at work or an employee's frustration or dissatisfaction with his or her working conditions.  Trego v. Hennepin County Family Day Care Ass'n, 409 N.W.2d 23, 26 (Minn. App. 1987) (employee's dissatisfaction with board's choice of interim director did not constitute good cause attributable to the employer); Bongiovanni v. Vanlor Investments, 370 N.W.2d 697, 699  (Minn. App. 1985) (personality conflict that resulted in employer making it clear he wanted employee fired, not talking to employee, and greatly reducing her work duties did not create good cause to resign); Foy v. J.E.K. Indus., 352 N.W.2d 123, 125 (Minn. App. 1984) (employee's unhappiness with his relation with company owner and owner's refusal to offer him buy-sell agreement did not provide employee good cause to quit), review denied (Minn. Nov. 8, 1984). But cf. Porrazzo v. Nabisco, Inc., 360 N.W.2d 662, 663-64 (Minn. App. 1985) (an unworkable relationship with an immediate supervisor and an increase in responsibilities with no corresponding increase in salary constituted good cause to quit).

The Commissioner found that the supervisors' conduct was "likely" inappropriate.  But he concluded that it did not rise to the level of harassment and that a reasonable employee would not have quit under similar circumstances without first obtaining medical documentation justifying an extended leave or immediate reassignment.  The record supports the Commissioner's determination. The supervisors' conduct is significantly less severe than the conduct Minnesota courts have found to be harassing.  The commissioner's determination that the conduct at issue did not constitute a good reason attributable to the employer is thus not error.

Braaten also claims the record does not support the Commissioner's finding that she did not make reasonable efforts to remain employed in spite of serious illness.  An employee is disqualified from reemployment insurance benefits when he or she voluntarily resigns from employment because of a serious illness but fails to make reasonable efforts to remain employed.  Minn. Stat. § 268.095, subd. 1(7).  In determining whether an employee made reasonable efforts to remain employed, "the Commissioner must determine what is reasonable for the particular employee under the circumstances of that case."  Hirt v. Lakeland Bakeries, 348 N.W.2d 400, 401 (Minn. App. 1984) (citation omitted).  This court must review the commissioner's findings in the light most favorable to the decision and must not disturb those findings if the record contains evidence reasonably tending to support them.  Id. at 401-02.

The record supports the commissioner's finding that Braaten did not make reasonable efforts to remain employed.  An employee makes a reasonable effort to remain employed when the employee tries to find a position in a different department.  Minchew v. Minnesota Odd Fellows Home, 429 N.W.2d 702, 704 (Minn. App. 1988). Braaten made no effort to bid on a position in a different department.  In addition, despite repeated requests, Braaten did not provide, until almost four months after she quit, the medical documentation necessary to extend her leave or be reassigned.  The commissioner did not accept Braaten's testimony that she was unable to provide documentation within the requested time period.  The record thus reasonably supports the commissioner's determination that Braaten failed to make reasonable efforts to retain her employment despite her illness.

            Affirmed.