Cari J. Jones, Relator, vs. Twin Express Management, Inc., Respondent, Department of Employment and Economic Development, Respondent.

Cari J. Jones, Relator, vs. Twin Express Management, Inc., Respondent, Department of Employment and Economic Development, Respondent. A05-83, Court of Appeals Unpublished, December 20, 2005.

This opinion will be unpublished and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

A05-83

 

Cari J. Jones,

Relator,

 

vs.

 

Twin Express Management, Inc.,

Respondent,

 

Department of Employment and Economic Development,

Respondent.

 

Filed December 20, 2005

Affirmed

Toussaint, Chief Judge

 

Agency File No. 8087 04

  Katherine L. Mackinnon, 3744 Huntington Avenue, St. Louis Park, MN 55416 (for relator)

 

Michael Clark Glover, Kalina, Wills, Gisvold & Clark, 6160 Summit Drive, Suite 560, Minneapolis, MN 55430 (for respondent Twin Express Management, Inc.)

 

Linda Alison Holmes, Department of Employment and Economic Development, 332 Minnesota Street, Suite E200, St. Paul, MN 55101-1351; and

 

Craig Gustafson, 700 State Office Building, St. Paul, MN 55155 (for respondent DEED)

 

            Considered and decided by Willis, 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

 

TOUSSAINT, Chief Judge  

 

            Relator Cari J. Jones challenges the decision of the senior unemployment review judge (SURJ) that she was disqualified from receiving benefits because she quit her job without good reason caused by her employer, respondent Twin Express Management, Inc.  Because we conclude that relator did not have good reason caused by her employer under either Minn. Stat. § 268.095, subd. 3(f) (2004) (sexual harassment) or id.,  subd. 3(a) (2004) (general good reason), we affirm.

D E C I S I O N

            When reviewing a decision of a SURJ, this court considers only whether the record reasonably supports the decision.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  This court views the SURJ's findings in the light most favorable to the decision.   Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  The court defers to both the SURJ's ability to weigh conflicting evidence, Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995), and to the SURJ's findings of fact if the record reasonably supports them.  Ress v. Abbott Nw. Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).  But whether an employee had good cause to quit is a question of law, which this court reviews de novo.  Peppi v. Phyllis Wheatley Cmty. Ctr., 614 N.W.2d 750, 752 (Minn. App. 2000).

I.

Sexual Harassment

            On direct examination during the telephone hearing, relator asserted that her relationship with respondent's president was friendly:  "I was an employee, he was my boss.  You have to be friends."  On cross-examination, she admitted that they had "[something] more than a casual personal relationship" and "a sexual relationship."  She also testified that she and the president exchanged e-mails of a personal nature in which she talked about hugging, going tanning with him, leaving work to go shopping, and being in bed. 

            The issue is whether relator's relationship with respondent's president was sexual harassment within the meaning of the unemployment statute, which provides:

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.  Sexual harassment means unwelcome sexual advances, requests for sexual favors, sexually motivated physical contact or other conduct or  communication of a sexual nature when:

    (1)    the applicant's submission to the conduct or communication is made a term or condition of the employment;

    (2)  the applicant's submission to or rejection of the conduct or communication is the basis for decisions affecting employment; or

    (3)  the conduct or communication has the purpose or effect of substantially interfering with an applicant's work performance or creating an intimidating, hostile, or offensive  working environment.

 

Minn. Stat. § 268.095, subd. 3(f) (2004).  Relator was employed and promoted before the relationship started, so the continued involvement in the relationship was not a term or condition of her employment.  She testified that the relationship was over at the beginning of March; respondent's president testified that it continued until the end of March.  His testimony is supported by an e-mail relator sent him on March 17, asking him to let her know when he arrived so "I can come into your office and get a hug."   Relator has not shown that the relationship was the basis for any adverse decisions affecting her employment or that it interfered with her work.

            Relator never indicated that respondent president's actions were unwelcome, nor did she indicate to anyone that she was sexually harassed.  Accordingly, there was no basis for finding that respondent was aware or should have been aware of any harassment.  The SURJ's failure to consider sexual harassment as a good cause for relator's quitting her employment was not erroneous.

II.

Good Reason Caused by the Employer

            Relator also challenges the SURJ's decision that she quit without a good reason caused by her employer.  Minn. Stat. § 268.095, subd. 3, (2004) defines that term.[1]

(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;

    (2) that is adverse to the worker; and

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

 (b) The analysis required in paragraph (a) must be applied to the specific facts of each case. 

 (c) 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.

 

Id., subd. 3(a)-(c).  The SURJ found that respondent "provided credible testimony and evidence any criticisms the president directed at [relator] were based on her job performance, not their personal relationship."

            Respondent's president was often sharply critical of the job performance of his employees, including relator.   The record includes a lengthy and highly critical e-mail that the president sent on March 24, 2004, to relator and two other employees.  On March 29, 2004, relator told respondent's controller that she was quitting.  She testified that she quit because she "couldn't take the criticism, or . . . the being watched and the notes being taken."  Relator did not appear for work on March 30 or March 31.

            Respondent's president asked relator to return to work.  Relator claimed the president told her that, if she came back to work, "he wouldn't send me the nasty e-mails. . . ."  Respondent did return to work.  She then reported the president's e-mails and excessive criticism to the controller, but later told the controller she did not want an investigation of possible discrimination or abuse because "if I had a problem with [the president], I would take it up with [him]."   

            Relator worked four days after her return.  During that time, respondent's president sent her e-mails criticizing her job performance.  In her brief, relator says she quit a second time because "she did not experience the promised relief from undue criticism and blame." While the e-mails are critical of relator's giving a bonus to an employee who was not entitled to it and failing to have an ad placed in the newspaper, they would not cause "an average, reasonable worker to quit and become unemployed rather than remaining in the employment."  Id., subd. 3 (a)(3).  Relator left a "goodbye and good luck" phone message for respondent's controller saying "I don't have any grudges against anybody, it was just time for me to go."

              The transcript and the e-mail messages support the finding of the SURJ.  Relator quit her job without a good reason caused by her employer.

            Affirmed.

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

[1] Relator argues that the SURJ improperly used the 2004 statute because the department adjudicator and the ULJ had used the 2003 version.  But the 2004 version "is effective August 1, 2004, and applies to all determinations and decisions issued by the department on or after that date."  2004 Minn. Laws ch. 183, § 63, at 300.  In light of the legislature's explicit directive, the SURJ in December 2004 had no option but to apply the 2004 version.