Michele R. Sykes, Relator, vs. Wal-Mart Associates, Inc., Respondent, Department of Employment and Economic Development, Respondent.

Michele R. Sykes, Relator, vs. Wal-Mart Associates, Inc., Respondent, Department of Employment and Economic Development, Respondent. A05-455, Court of Appeals Unpublished, December 20, 2005.

This opinion will be unpublished and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

A05-455

 

Michele R. Sykes,

Relator,

 

vs.

 

Wal-Mart Associates, Inc.,

Respondent,

 

Department of Employment and Economic Development,

Respondent.

 

Filed December 20, 2005

Affirmed

Kalitowski, Judge

 

Department of Employment and Economic Development

File No. 4292 03

 

Michele R. Sykes, 5021 19½ Avenue Northwest, Rochester, MN 55901-2058 (pro se relator)

 

Wal-Mart Associates Inc., Owatonna Location, c/o TALX UCM Services Inc., P.O. Box 283, St. Louis, MO 63166-0283 (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 Department of Employment and Economic Development)

 

            Considered and decided by Kalitowski, Presiding Judge; Stoneburner, Judge; and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Relator Michele Sykes challenges the senior unemployment review judge's (SURJ) determination that she quit her employment with respondent Wal-Mart without good reason caused by her employer.  Relator also argues that she did not receive a timely and fair hearing.  We affirm. 

D E C I S I O N

            Relator was employed by Wal-Mart as a cashier from June 4, 2002, until she quit on December 6, 2002.  She argues that she qualifies for unemployment benefits because she quit for good reason caused by her employer.  Minn. Stat. § 268.095, subd. 3 (2002).  Relator claims that she was being harassed by the employer; she was being "written up for things that were not true, that were not valid reasons to write me up, because I had not done the things." 

            Appellate courts review the findings of the SURJ rather than those of the unemployment law judge. Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995). Whether an employee has good cause to quit is a question of law, which we review de novo.  Peppi v. Phyllis Wheatley Cmty. Ctr., 614 N.W.2d 750, 752 (Minn. App. 2000).

I.

            On relator's first petition for a writ of certiorari, this court did not decide whether the quit was with good reason caused by the employer.  Rather, we reversed and remanded for another hearing before the unemployment law judge (ULJ) with two witnesses who were necessary for and relevant to relator's defense.  Sykes v. Wal-Mart Assocs., No. A03-1318 (Minn. App. June 22, 2004).  Relator had a second hearing with the two witnesses present and the SURJ determined that relator quit without good reason caused by the employer.

            Quitting may be justified if the working conditions were "significant and would compel an average, reasonable worker to quit and become unemployed rather than remaining in the employment."  Minn. Stat. § 268.095, subd. 3(a)(2).  The test for reasonableness in this context is objective and is applied to the average person, not to the supersensitive.  Ferguson v. Dep't of Employment Servs., 311 Minn. 34, 44 n.5, 247 N.W.2d 895, 900 n.5 (1976).   Harassment may constitute good cause attributable to the employer.  Tru-Stone Corp. v. Gutzkow, 400 N.W.2d 836, 838 (Minn. App. 1987).  But irreconcilable differences with one's employer or frustration and dissatisfaction with one's working conditions is not a good reason to quit.  Portz v. Pipestone Skelgas, 397 N.W.2d 12, 14 (Minn. App. 1986).

            The record indicates that relator received "coaching for improvement" three times and felt so harassed by this coaching that she walked off the job after the third one.  The record does not contain evidence of oppression or unfairness by the employer in issuing the coaching.  Individually, the coaching addressed specific work that required improvement to meet the employer's reasonable expectations for performance. Collectively, the incidents do not show a pattern of harassment.  The record contains only speculation by relator that the incidents were something more than the employer addressing the three distinct incidents as they occurred.

            Relator's three witnesses testified that she was not bossy and was a competent cashier.  Testimony by the manager most closely involved with relator's supervision indicated that relator had been a good and competent cashier, but had become distracted from her work by other cashiers' activities and that the coaching sought to redirect relator to her own job performance.  The manager testified to personal observations and coworker complaints regarding relator's actions that were causing coworker tensions.  With regard to the third and final coaching, in which relator was asked to improve on the amount of time she took to water plants, relator's witnesses testified that she did not take too long to complete the task.  But the managers disagreed.

            The SURJ found the employer's testimony regarding the incidents and the coaching more credible than the testimony provided in relator's defense.   And this court both views the evidence in the light most favorable to the decision and defers to the SURJ's credibility determinations. Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995).  Despite relator's claim to the contrary, there is no direct or indirect evidence that the witnesses lied.  At best, the evidence shows relator's frustration with management's decisions and her inability to simply focus on her own work as cashier, which are not good reasons to quit caused by the employer.  We conclude the evidence supports the SURJ's conclusion that relator quit without good reason caused by her employer.

II.

            Relator argues that she did not have a fair hearing because she should have been allowed a third witness at her second hearing, that the hearing was untimely, and that witnesses could not remember what happened.

            Relator's argument that another witness is now necessary for her defense lacks merit.  Relator had the opportunity to examine the managers who were most closely connected with her coaching and supervision and to present witnesses in her defense.  There is nothing in the record indicating that relator previously requested a subpoena for the specific witness whose testimony she now alleges is essential to a fair hearing.  Furthermore, there is no showing that testimony by that witness would refute the testimony of the other witnesses.  Because relator did not make a timely request for this witness to be subpoenaed and there is no factual basis supporting the request, this court, having considered the issue of necessary and relevant defense witnesses in the initial petition for a writ of certiorari, declines to reconsider the issue. 

            Relator's claim that the second hearing was unfair because the "witnesses could not remember what had actually occurred" also lacks support in the record.  The transcript of the second hearing, held 18 months after the first, indicates that the witnesses recalled facts regarding the critical issues.  They recalled relator, her work performance, some specific incidents leading up to the coaching, and her quit.  Their testimony was as specific as could be expected in their roles as managers and as clear as necessary to make the hearing fair.  We conclude that relator received a fair hearing.

            Affirmed.      

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