This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C7-00-1604

 

 

Mary E. Fukar,

Relator,

 

vs.

 

Richfield Health Center,

Respondent,

Commissioner of Economic Security,

Respondent.

 

Filed May 22, 2001

Affirmed

G. Barry Anderson, Judge

 

Department of Economic Security

File No. 466000

 

Mary E. Fukar, 1565 St. Paul Avenue, Apt. 1, St. Paul, MN  55116 (pro-se relator)

 

Richfield Health Center, Extendicare Homes, Inc., c/o Gates McDonald/Gibbens, P.O. Box 3930, Des Moines, IA  50322-3930 (respondent/employer); and

 

Kent E. Todd, Minnesota Department of Economic Security, 390 North Robert Street, St. Paul, MN  55101 (for respondent commissioner)

 

            Considered and decided by Halbrooks, Presiding Judge, Lansing, Judge and G. Barry Anderson, Judge.

 

 

U N P U B L I S H E D  O P I N I O N

G. BARRY ANDERSON, Judge

             Relator challenges the commissioner’s representative’s determination that she was not qualified for unemployment benefits, arguing that she did not quit her job, and, alternatively, that she had good reason to quit based on harassment and discrimination in the workplace.  We affirm.

FACTS

Relator Mary E. Fukar worked full time as a certified nursing assistant for respondent Richfield Health Center (RHC).  On May 4, 2000, RHC’s administrator, Kay Emerson, learned that Fukar allegedly threatened and verbally assaulted a co-worker.  Emerson suspended Fukar pending further investigation, asked Fukar to put her statement describing the incident in writing, and told Fukar that she was not being fired from her job.  According to Emerson, Fukar refused to put her statement in writing and said, “I quit.”  Fukar returned to work several days later but was told that RHC had accepted her resignation.

Fukar applied for unemployment benefits.  The Minnesota Department of Economic Security disqualified Fukar from receiving benefits, concluding that Fukar did not quit employment from RHC for good reason caused by the employer.  On appeal before an unemployment law judge, Fukar explained that she did not say, “I quit,” but only that she could have quit.  Alternatively, Fukar argued that she had good reason to quit based on harassment and discrimination in the workplace.  RHC responded by testifying that Fukar clearly stated, several times, that she quit.  RHC also addressed the discrimination/harassment accusation by acknowledging that Fukar had complained about the actions of certain coworkers, but explained that it had investigated the complaints and issued warnings.  RHC also stated that Fukar was responsible for some of the fighting in the past. 

The unemployment law judge found that Fukar did not have a good reason to terminate her employment caused by RHC, and affirmed the Department of Economic Security’s decision to deny her request for unemployment benefits.  The commissioner’s representative affirmed the unemployment law judge’s decision.  This petition for writ of certiorari followed.

D E C I S I O N

 

Appellate courts have a limited standard of review in unemployment-insurance-benefits cases.  Group Health Plan, Inc. v. Lopez, 341 N.W.2d 294, 296 (Minn. App. 1983).  The court only looks to see whether there is reasonable support for the decision by the representative of the Commissioner of the Department of Economic Security (hereafter, “representative”).  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).

In proceedings of this nature * * * review is limited to a consideration of whether the department * * * proceeded on an erroneous theory of law; whether its action was so arbitrary and unreasonable that it represents its will and not its judgment; or whether the decision of the department is without evidence to support it.

 

Johnson v. Wilson & Co., 266 Minn. 500, 507, 124 N.W.2d 496, 501 (1963).  This court must consider the evidence in the light most favorable to the representative’s decision.  White v. Metropolitan Med. Ctr., 332 N.W.2d 25, 26 (Minn. 1983).

            The representative’s determination regarding the reasons for an employee’s separation is a factual determination.  Embaby v. Department of Jobs & Training, 397 N.W.2d 609, 611 (Minn. App. 1986).  Whether an employee had good cause to quit his or her job, however, is a question of law.  Wood v. Menard, Inc., 490 N.W.2d 441, 443 (Minn. App. 1992).

Fukar contends that the commissioner’s representative acted in an arbitrary and unreasonable fashion when finding that she quit her job without a good reason caused by RHC.

A claimant who quits employment is disqualified from benefits unless the claimant quit the employment because of a good reason caused by the employer.  Minn. Stat. § 268.095, subd. 1(1) (Supp. 1999).  A discharge from employment occurs when any words or actions from an employer would lead a reasonable employee to believe that the employer will no longer allow the employee to work for the employer in any capacity.  Minn. Stat. § 268.095, subd. 5(a) (Supp. 1999).  On the other hand, quitting occurs when the decision to end employment is made by the employee. Minn. Stat § 268.095, subd. 2(a) (Supp. 1999).

A good reason for quitting caused by the employer is a reason directly related to the employment and for which the employer is responsible and that is significant and would compel an average, reasonable worker to quit.  Minn. Stat. § 268.095, subd. 3(a)(2) (Supp. 1999).            

            RHC administrator Emerson testified that Fukar clearly expressed her intention to quit.  Emerson stated that she received a report stating that Fukar verbally abused and threatened a coworker.  When discussing the incident, Fukar became “insubordinate” and refused to listen.  When Emerson told Fukar to write down her version of the story, Fukar refused, began yelling and arguing in front of the residents, and stated several times that she quit. 

Fukar, however, testified that she “didn’t quit at that time,” but was fired.  Minnesota law provides that an employee who reasonably believed that she has been discharged from employment does not quit employment when failing to return to work.  Brown v. Port of Sunnyside Club, Inc., 304 N.W.2d 877, 879 (Minn. 1981).  Fukar contends that she was escorted from the building and cleaned out her locker, both of which indicate that she had been fired.  But Fukar stated in her pro-se brief that she “would always take out [her] belongings [from her locker] simply because [she] didn’t want to leave them on the job, this has been happening for the past 6yrs & 9mths, that [she] was employed at RHC.”  Moreover, in response to Fukar’s argument, Emerson testified that she repeatedly told Fukar that she was not fired, and did not order Fukar to clean out her locker but only to “punch out” and write down her statement of the incident.  Emerson explained that Fukar was escorted from the building because “she was exhibiting behavior like this,” referencing Fukar’s insubordination and yelling. 

The representative resolved the conflict by concluding that Fukar voluntarily quit her job.  This court will give deference to the commissioner’s representative’s credibility determinations.  Gradine v. College of St. Scholastica, 426 N.W.2d 459, 462-63 (Minn. App. 1988), review denied (Minn. Aug. 24, 1988).  When viewing the evidence in the light most favorable to the representative’s decision, we conclude that the representative did not act in an arbitrary or unreasonable fashion when concluding that Fukar quit her job on May 4, 2000.

Fukar next contends that even if she did quit her job, she had good reason due to harassment and discrimination in the workplace.  The Minnesota Supreme Court has determined that racial discrimination is a good cause attributable to the employer for leaving employment.  Marz v. Department of Employment Servs., 256 N.W.2d 287, 289 (Minn. 1977).  If an employee has complained of harassment and has not received assistance or an expectation of assistance, the employee also has a good cause to quit.  Hanke v. Safari Hair Adventure, 512 N.W.2d 614, 617 (Minn. App. 1994).

Fukar testified that certain coworkers cussed at her, called her an “old African woman,” and attempted to provoke her into acting improperly at the workplace.  RHC explained that it had addressed Fukar’s complaints and issued warnings.  RHC also stated that Fukar was responsible for some of the fighting in the past.  The representative concluded that Fukar did not experience unnecessary harassment from other employees at RHC, concluding that Fukar failed to offer any “legally sufficient basis for her decision to voluntarily terminate her employment * * * .”  Accordingly, viewing the evidence in the light most favorable to the representative’s decision, we conclude that Fukar did not have a good reason caused by RHC to terminate her employment.  We hold that the representative did not act in an arbitrary or unreasonable fashion when disqualifying Fukar from receiving unemployment benefits.

Affirmed.