This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
U.S. Postal Service,
Commissioner of Economic Security,
Filed June 13, 2000
Department of Economic Security
File No. 4455UCFE99
John E. Mack, Mack & Daby, P.A., 26 Main Street, P.O. Box 302, New London, MN 56273-0302 (for relator)
Kent E. Todd, Department of Economic Security, 390 North Robert Street, St. Paul, MN 55101 (for respondent Commissioner)
U.S. Postal Service, P.O. Box 645004, St. Paul, MN 55164-5004 (respondent)
Considered and decided by Schumacher, Presiding Judge, Shumaker, Judge, and Poritsky, Judge.
Relator challenges the commissioner’s representative’s decision that relator voluntarily separated from his employment without a good reason caused by his employer. Because we see evidentiary support for the findings on which that decision is based, we affirm.
Relator Paul Kokesch worked as a clerk for respondent U.S. Postal Service (USPS) from 1990 until he resigned in February 1999. He claims that he resigned for good cause attributable to USPS.
Two incidents are the basis for that claim. The first occurred in February 1995, when relator reported to his supervisor that he had been threatened by a co-worker. Believing that the supervisor’s response was unsatisfactory, relator filed a grievance. USPS then arranged a meeting among the local postmaster, two supervisors, relator, and the accused co-worker. The co-worker said he had not meant his remarks to be threatening and apologized. Relator reported no further problems with this co-worker, but again raised the same incident with USPS authorities in September 1998. Because three and a half years had passed with no further complaints, USPS took no action.
The second incident occurred in November 1998, when relator had an altercation with another employee, a USPS contract truck driver who told relator to get out of his way. When relator did not move, the employee put the truck in gear and bumped relator with it. Relator reported the incident, but did not claim that he was injured, that the driver’s action was intentional, or that relator felt threatened by it.
In February 1999, relator wrote a letter of resignation, stopped going to work, and applied for reemployment insurance benefits. The Department of Economic Security (the department) determined that relator was not entitled to benefits because he had voluntarily quit his employment without good cause attributable to his employer. In response to relator’s challenges, this determination was affirmed, first by a reemployment insurance judge, and then by the commissioner’s representative. Relator challenges it a third time on appeal.
D E C I S I O N
An employee who voluntarily quits without good reason attributable to the employer is disqualified from receiving reemployment insurance benefits. Minn. Stat. § 268.095, subd. 1(1) (1998). The determination that an employee quit without good reason attributable to the employer is a legal conclusion, but 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).
With respect to the 1995 incident, the commissioner’s representative found:
While * * * a co-worker of [relator] had directed remarks towards [relator] which he viewed as threatening, the evidence establishes that after the incident was brought to the employer’s attention a meeting was convened during which the co-worker apologized to [relator] and indicated that he did not intend his remarks to be threatening. It is clear from the evidence that the employer took timely and appropriate action in response to [relator’s] complaint, and that no further incidents occurred during the more than three-year period preceding [relator’s] decision to terminate his employment. And, in view of the lapse of time and the absence of further incidents, we do not find the employer’s decision to decline to “reopen” the matter in September 1998 to have been unreasonable.
The record supports these findings. Another postal clerk, a workplace-intervention analyst, and a supervisor of customer services testified; their testimony supports the finding that over three years passed without incident between relator’s first grievance and his attempt to reopen it.
The commissioner’s representative also found
with respect to the November 1998 incident involving the contract employee’s bumping the claimant, the evidence fails to demonstrate, at the time of the incident, that the claimant viewed the driver’s actions as intentional or threatening * * *.
After relator resigned, he told a department representative who called him to discuss his separation from USPS:
In November 1998, I was hit by a truck in the parking lot by a contracted driver. I was not injured. I reported this incident to the local postmaster * * *.
The postmaster to whom relator first reported the incident commented:
I am not sure what [relator] is referring to when he talks about getting hit by a truck in the parking lot. He said he was grazed by the truck, but there was no injury. He did not imply that this was a deliberate action by the driver.
The supervisor to whom relator reported the incident two weeks later testified that, “[relator] said that he wasn’t injured, that there was, that there was nothing to do.” This supports the finding that “the evidence fails to demonstrate, at the time of the incident, that [relator] viewed the driver’s actions as intentional or threatening.”
Relator relies on Haskins v. Choice Auto Rental, Inc., 558 N.W.2d 507 (Minn. App. 1997), to argue that the commissioner’s representative should have found relator’s subjective belief that he was threatened dispositive. Haskins reversed a determination that an employee lacked good cause because the commissioner’s representative had not considered whether the employee’s concern for his safety was reasonable. Id. at 511-12. But Haskins used “the standard of reasonableness as applied to the average man or woman, and not to the supersensitive.” Id. at 511 (quoting Ferguson v. Department of Employment Servs., 311 Minn. 34, 44, 247 N.W.2d 895, 900, n.5 (1976)).
Relator worked for three years after the first incident without making any further complaints about the employee responsible; at the time of the second incident, relator did not indicate he felt either injured or threatened. The concern for his safety that allegedly caused him to quit was not reasonable for an average person.
Because evidence supports the findings on which the commissioner’s representative based the determination that relator had quit without good cause attributable to his employer, we affirm.
* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.