This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
IN COURT OF APPEALS
Llewelyn S. Simpson,
Precision Coatings, Inc.,
Commissioner of Economic Security,
Department of Economic Security
File No. 251199
Lyewelyn S. Simpson, 644 Sherwood, St. Paul, MN 55106 (pro se relator)
Precision Coatings, Inc., 2313 Wycliff Street, St. Paul, MN 55114 (respondent)
Kent E. Todd, Minnesota Department of Economic Security, 390 Robert Street, St. Paul, MN 55101 (for respondent Commissioner of Economic Security)
Considered and decided by Peterson, Presiding Judge, Halbrooks, Judge, and Poritsky, Judge.*
Relator Llewelyn S. Simpson challenges the decision of respondent Commissioner of Economic Security that he is disqualified from receiving reemployment compensation benefits because he quit his employment for reasons other than a good reason caused by his employer. We affirm.
Simpson is an African American who worked as a sandblaster for respondent Precision Coatings, Inc., from May 9, 1998, through August 23, 1999. During September or October 1998, Simpson’s supervisor, James Dean, started making inappropriate racial remarks to him. Simpson testified that Dean called him names like “buckwheat” and “nigger.” Simpson testified that he objected to these remarks and asked Dean not to call him inappropriate names.
When Dean’s remarks continued, Simpson complained to Precision Coatings’ operations manager, James Grundtner. At a March 1999 meeting, Simpson objected to Dean’s racist remarks and jokes and specifically requested that he no longer be called “buckwheat.” Grundtner told the employees at the meeting, including Dean, “enough is enough” and that there should not be any further inappropriate racial remarks.
Simpson testified that although Dean stopped harassing him for a few months, in June 1999, Dean became angry and made inappropriate racial remarks to him while he was eating, such as asking him whether he was eating chitlins.
On August 18, 1999, Simpson received a written warning because he missed two days of work without an excuse. On August 21, 1999, Simpson did not show up for his scheduled shift after he called Precision Coatings and said that he was waiting for a bus, that the bus was late, and that he would be coming into work. On August 23, 1999, Simpson called Precision Coatings and told the head of marketing that he was thinking about quitting his job. Simpson was told that he should come into work and talk the matter over. Later that day, Simpson called back and told the head of marketing that he had thought the matter over and was going to quit work.
On Simpson’s application for reemployment compensation benefits, he stated that he quit his job at Precision Coatings because of racial harassment. The next day, Simpson went to Precision Coatings to get his final paycheck and complete an exit interview. On the exit-interview form, Simpson answered “Yes” to the following questions: “Do you feel you were treated fairly while employed at our company?” and “Was your supervisor helpful?” Another section of the exit-interview form listed reasons for leaving work, including working conditions, being unhappy with company policy, personal conflict with supervisor, personal conflict with co-worker, and other. Simpson wrote “None” on the line provided for his response. Simpson told Grundtner that he was leaving because he needed to get away from a co-worker named Charles who was influencing him and his behavior outside of work. And when Precision Coatings’ president asked Simpson if he would be coming back to work, Simpson said that he would, but he first wanted to go to Ohio to visit his mother.
The commissioner’s representative found that the evidence did not demonstrate that Simpson quit his job because of racial harassment and that Simpson did not keep his employer aware of any harassment after the March 1999 meeting. The commissioner’s representative concluded that Simpson did not quit his job because of a good reason caused by the employer.
D E C I S I O N
Simpson argues that the commissioner’s representative erred by concluding that he did not quit his employment because of a good reason caused by the employer. Simpson contends that he quit working at Precision Coatings because of continued racial harassment.
This court reviews the commissioner’s representative’s decision, not the reemployment compensation judge’s decision. Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51-52 (Minn. 1995). This court will review the
fact findings in the light most favorable to the decision below and will not disturb them if there is evidence reasonably tending to sustain those findings.
Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989). Reviewing courts are not bound by the commissioner’s representative’s conclusions of law. Id. Whether an employee quit employment due to a good reason caused by the employer is a question of law. Zepp v. Arthur Treacher Fish & Chips, Inc., 272 N.W.2d 262, 263 (Minn. 1978).
An individual who voluntarily quits employment is disqualified from receiving reemployment compensation benefits unless the individual quit for good reason caused by the employer. Minn. Stat. § 268.095, subd. 1(1) (Supp. 1999). 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 worker to quit. Minn. Stat. § 268.095, subd. 3(a) (Supp. 1999).
In order to show good reason caused by the employer for quitting, the claimant must have informed the employer of adverse working conditions and must have given the employer a reasonable chance to correct the situation. Minn. Stat. § 268.095, subd. 3(b); Larson v. Department of Econ. Sec., 281 N.W.2d 667, 669 (Minn. 1979). An employee has a good reason caused by the employer to quit where the employer fails to take timely and appropriate measures to protect the employee from harassment by a co-worker. See Wetterhahn v. Kimm Co., 430 N.W.2d 4, 6-7 (Minn. App. 1988) (harassment by co-worker, coupled with employer’s failure to take sufficient action when notified, provided employee with good cause to quit). However, if the employer, upon becoming aware of the problem, provides the employee with a reasonable expectation of assistance, the burden remains upon the employee to apprise the employer of any continuing harassment; otherwise, it is reasonable for the employer to assume that the problem has been corrected. Larson, 281 N.W.2d at 669.
Viewing the fact-findings in the light most favorable to the decision, we conclude that there is evidence reasonably tending to sustain the findings that Simpson did not quit his job because of racial harassment and that he did not keep his employer aware of any harassment after the March 1999 meeting.
Simpson’s responses to the exit-interview questions regarding his reasons for leaving do not indicate that he quit his employment because of racial harassment. Also, Grundtner testified that Simpson told him that he was quitting because he needed to get away from a co-worker named Charles who was negatively influencing him and his behavior outside of work. And when the president of Precision Coatings asked Simpson if he would be coming back to work, Simpson said that he would, but first he was going to visit his mother in Ohio. This evidence reasonably sustains the finding that Simpson did not quit because of racial harassment.
Grundtner testified that following the March 1999 meeting, he was not aware of any continued racial harassment of Simpson and that Simpson did not complain to him or any other person in management about continued racial harassment. The commissioner’s representative explicitly determined that the employer’s testimony that Simpson did not complain to the employer concerning racial remarks after the March 1999 meeting was credible.
The commissioner’s representative’s factual determinations that Simpson did not quit his employment because of racial harassment and did not keep his employer informed about racial harassment that occurred after March 1999 are each a sufficient basis for concluding that Simpson quit his employment for reasons other than a good reason caused by his employer. The first finding is sufficient because it indicates that racial harassment did not cause Simpson to quit his employment. The second finding is sufficient because even if racial harassment occurred after March 1999, it was not a good reason for quitting caused by the employer unless Simpson informed Precision Coatings about the harassment.
* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.