Paul B. Scollard, Relator, vs. Apple Valley Dental Laboratory, Inc., Respondent, Commissioner of Employment and Economic Development, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-536

 

Paul B. Scollard,

Relator,

 

vs.

 

Apple Valley Dental Laboratory, Inc.,

Respondent,

 

Commissioner of Employment and Economic Development,

Respondent.

 

Filed December 30, 2003

Affirmed

Harten, Judge

 

Department of Employment and Economic Development

Agency File No. 17309 02

 

Benjamin L. Weiss, Southern Minnesota Regional Legal Services, Inc., 300 Minnesota Building, 46 East Fourth Street, St. Paul, MN 55101 (for relator)

 

Apple Valley Dental Laboratory, Inc., 14501 Granada Dr., Suite 101, Apple Valley, MN 55124 (respondent)

 

Lee B. Nelson, Philip B. Byrne, Dept. of Employment and Economic Development, 390 North Robert Street, St. Paul, MN 55101 (for respondent Commissioner of Employment and Economic Development)

 

            Considered and decided by Harten, Presiding Judge, Peterson, Judge, and Hudson, Judge.

 

U N P U B L I S H E D   O P I N I O N

 

HARTEN, Judge

Relator challenges the commissioner's representative's determination that he did not quit for good reason caused by his employer.  We affirm.

FACTS

On 29 March 2002, relator Paul B. Scollard began working for respondent Apple Valley Dental Laboratory, Inc. (Dental) as a dental technician.  After two months, he quit his job because his mother was ill.

            On 10 June 2002, Dental's president, Daniel Rademacher, rehired relator as a dental technician.  Relator worked in a room where models and dental prostheses were made; various grinding operations caused plaster dust to accumulate in the air, and burning wax caused odors.  Relator complained to Dental that he was experiencing respiratory problems caused by the dust and odors, including persistent coughing and sore throat.  Relator testified that he had a persistent dry and scratchy throat and nasal congestion.

Dental provided dust masks to the employees, directed them to turn on exhaust fans, and told relator that he could leave the room at any time the air became excessively contaminated.  Relator testified that the dust masks "helped a little bit, but not completely."  Relator never saw a doctor for the problems, stating that he "didn't feel it was necessary" because he was wearing the masks provided by Dental and mitigating his exposure to the dust and chemicals.

            On 19 September 2002, relator gave his two weeks' notice to Rademacher, stating that he no longer could tolerate the working conditions or harassment by another employee.[1]  Relator testified that Rademacher asked him to wait until after the weekend, giving them both a chance to think about the situation.  On 23 September, relator called Rademacher and again told him that he could not work under the conditions any longer.  Rademacher told relator that he did not have to return to work, but relator nonetheless received his salary for the two-week-notice period.  After relator left Dental, he contacted OSHA about the working conditions.  OSHA conducted an investigation and submitted reports on the conditions at Dental.[2]

            A departmental adjudicator disqualified relator from receiving unemployment benefits because he quit his employment without good reason caused by the employer.  Relator appealed the decision.  At a hearing before an unemployment law judge (ULJ), relator and Rademacher both testified.  Relator also offered the OSHA reports into evidence.  The ULJ refused to receive the reports because they were not relevant to the working conditions prior to relator's termination date.  The ULJ, however, reversed the department's determination and found that relator quit his employment for good reasons caused by Dental.

            Dental appealed.  The commissioner's representative reversed the ULJ's decision, finding that relator's decision to quit was not for a good reason caused by Dental or a serious illness that made it medically necessary to quit.

            Relator challenges the commissioner's representative's decision, arguing that his case should have been remanded to the ULJ to admit the OSHA evidence and that the commissioner's representative erroneously held that relator was required to consult a physician to confirm his belief that his employment affected his health.

D E C I S I O N

            A court's scope of review in economic security cases is narrow.  McGowan v. Executive Express Transp. Enters., 420 N.W.2d 592, 594 (Minn. 1988).  In a certiorari appeal, a reviewing court must examine the decision of the commissioner's representative, rather than that of the unemployment law judge.  Kalberg v. Park & Recreation Bd., 563 N.W.2d 275, 276 (Minn. App. 1997).  Decisions of the commissioner's representative are accorded particular deference and are affirmed where they are reasonably supported by the findings.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  The factual findings of the commissioner's representative are viewed "in the light most favorable to the decision, and if there is evidence reasonably tending to sustain them, they will not be disturbed."  White v. Metro Med. Ctr., 332 N.W.2d 25, 26 (Minn. 1983).

1.         OSHA Evidence

            Relator first claims that the commissioner's representative erred by not remanding the case to the ULJ to admit into evidence the OSHA reports.  Under the Rules of Unemployment Compensation Procedure, a ULJ need not follow statutory or common law rules of evidence:

A referee may receive any evidence . . . on which reasonable, prudent persons are accustomed to rely in the conduct of their serious affairs.  A referee may exclude any evidence which is irrelevant, immaterial, unreliable, or unduly repetitious. . . . A referee shall only use reliable, probative, and substantial evidence as a basis for decision.

Minn. R. 3310.2922 (2001).  At the hearing before the ULJ, relator offered OSHA reports as evidence of the workplace conditions during his employment. 

Relator argues that the commissioner's representative determined that the OSHA evidence was relevant to whether relator had a good reason to quit his employment at Dental.  But the commissioner's representative found that  "there was no evidence in the record to indicate that [relator's] working conditions were in violation of any regulatory agency laws or standards."  Relator concedes that only evidence available to an employee prior to quitting is relevant in determining whether the quitting was reasonable, citing Ferguson v. Department of Employment Services, 311 Minn. 34, 41-42, 247 N.W.2d 895, 899 (1976) (inspections and their conclusions that were not available to relator before his discharge were not relevant).  See also Haskins v. Choice Auto Rental, Inc., 558 N.W.2d 507, 511 (Minn. App. 1997) (whether concerns are reasonable is based on information known to the employee at the time, rather than whether conditions were actually safe).

Relator did not contact OSHA, and OSHA did not inspect Dental, until after relator's employment had ended.  The ULJ told relator that the OSHA reports were not relevant to the employment conditions prior to relator's termination, and the commissioner's representative determined that there was no evidence from any regulatory agencies as to the existence of hazardous working conditions while relator was employed at Dental.[3]  We conclude that because the OSHA reports were evidence of the conditions at Dental after relator's employment ended, the commissioner's representative did not err by refusing to remand the case for the ULJ to admit the OSHA reports.

2.         Good Reason to Quit

Relator also claims that the conclusion of the commissioner's representative is not supported because the commissioner's representative used an improper legal standard when he found that relator's failure to see a doctor for his respiratory problems meant that relator did not have good cause to quit.  An employee who quits is generally disqualified from receiving unemployment benefits unless the employee "quit the employment because of a good reason caused by the employer."  Minn. Stat. § 268.095, subd. 1(1) (2002).

(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.

Minn. Stat. § 268.095, subd. 3 (2002).  Good reason has also been defined as "real, not imaginary, substantial, not trifling, and reasonable, not whimsical; there must be some compulsion produced by extraneous and necessitous circumstances."  Haskins, 558 N.W.2d at 511 (quotation omitted).

Whether an employee has good reason to quit is a question of law that is reviewed de novo.   Peppi v. Phyllis Wheatley Cmty. Ctr., 614 N.W.2d 750, 752 (Minn. App. 2000).  A determination that an employee quit without good reason attributable to the employer must be based on findings that have the requisite evidentiary support.  See Zepp v. Arthur Treacher Fish & Chips, Inc., 272 N.W.2d 262, 263 (Minn. 1978) (interpreting predecessor statute, requiring "good cause" attributable to employer).  "The standard for determining good cause is the standard of reasonableness as applied to the average man or woman, and not to the supersensitive."  Haskins, 558 N.W.2d at 511 (quotation omitted).  The employee bears the burden of establishing that he quit with good reason attributable to the employer.  Zepp, 272 N.W.2d at 263.

            The commissioner's representative relied on several facts in determining that relator did not have good reason to quit attributable to Dental: (1) relator returned to work at Dental with full knowledge of the working conditions; (2) Dental provided the employees with masks and allowed relator to leave the room at any time to allow chemicals or dust to ventilate; and (3) relator did not have any information prior to his resignation that the conditions violated any regulatory agency laws or standards.  The commissioner's representative also relied on the fact that relator did not consult a physician prior to quitting to determine whether any respiratory problems were attributable to his job at Dental, but contrary to relator's argument, this fact was not the sole basis for the decision.  Relator's failure to consult a physician was a factor, among other factors, that could be considered in evaluating the weight and credibility of relator's claim that he quit because of the conditions at Dental.

The commissioner's representative did not say that relator was required to visit a physician prior to quitting his employment.  Instead, he pointed out that relator did not meet his burden of showing that any respiratory problems were attributable to Dental.

While [relator] may have had concerns about these issues, he never went to see any physician regarding any claimed health concerns.  Nor did any physician advise him to quit his employment because of any claimed health concerns.

. . . .

The preponderance of the evidence does not demonstrate that [relator's] concerns about the working condition in the model room would cause an average reasonable individual to quit his employment and become unemployed rather than remain in employment.  The employer worked with [relator] to provide him a mask.  The employer stated [relator] could leave the room on occasion if he was concerned about certain fumes until the room vented.  An average reasonable individual would not have quit employment under those circumstances without seeing a physician and determining what health hazard, if any, existed.

Relator also argues that an employee need only act reasonably and need not exhaust every possible course of action, citing Madsen v. Adam Corp., 647 N.W.2d 35, 39 (Minn. App. 2002).  But Madsen refers to the "reasonable efforts" required in the statutory exception for serious illness or injury making it medically necessary for the employee to quit under section 268.095, subd. 1(7); Madsen does not discuss the good reason attributable to the employer under section 268.095, subd. 1(1).

In addition, relator's argument ignores the fact that he had a continuing duty to complain about the working conditions.  See Larson v. Department of Economic Security, 281 N.W.2d 667, 669 (Minn. 1979) (employee was not entitled to benefits because there was no evidence that the employee continued to complain when his problems persisted).  See also Haskins, 558 N.W.2d at 511 (interpreting Larson to require employees who receive an expectation of assistance after complaining, to complain further when allegedly adverse working conditions persist).

We conclude that the evidence and associated findings support the commissioner's representative's conclusion that relator did not demonstrate good reason to quit attributable to Dental.

Affirmed.

[1] The alleged harassment by a co-employee is not a part of this appeal.

[2] The record does not indicate when the OSHA inspection took place other than that it was performed at some point after relator quit (23 September 2002) and before the ULJ hearing (18 December 2002).  There was no offer of proof on that point.

[3] Relator suggests that because his offer of OSHA evidence appears obvious in the ULJ hearing tape and transcript, the commissioner's representative may not have listened to the tape or read the transcript, triggering possible due process violations.  But this claim is not only speculative but assumes error by the commissioner's representative.  See Loth v. Loth, 227 Minn. 387, 392, 35 N.W.2d 542, 546 (1949) (stating appellate courts cannot presume error).