This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







Wendy A. Malinsky,



Commissioner of Employment and Economic Development,


Filed October 21, 2003


Wright, Judge


Department of Employment and Economic Development

File No. 10809 02



Wendy A. Malinsky, 5207 Grandview Lane, Edina, MN  55436 (pro se relator)


CARYN, 6651 Highway 7, St. Louis Park, MN  55426 (respondent)


Lee B. Nelson, Philip B. Byrne, Minnesota Department of Employment and Economic Development, 390 North Robert Street, St. Paul, MN  55101 (respondent Commissioner)



            Considered and decided by Anderson, Presiding Judge, Harten, Judge, and Wright, Judge.


U N P U B L I S H E D  O P I N I O N




Relator challenges the determination of the commissioner’s representative that she is disqualified from receiving unemployment benefits.  Relator contends that she had good reason to quit caused by the employer’s failure to address adequately the actions of a co-worker who created an environment that made it impossible for relator to do her job.  The record supports the findings that relator rejected the employer’s attempts to resolve the conflict and that her decision to quit was not based on a good reason caused by her employer.  We affirm. 



Respondents Charles and Caryn Rosenberg own and operate CARYN International/Academy for Film and Television (CARYN).  Relator Wendy Malinsky was employed as the executive director of CARYN for five months, from December 27, 2001, through May 20, 2002.  Malinsky’s job responsibilities included researching the business structure and accreditation requirements for the academy, developing a board of advisors, building revenue sources, overseeing management, preparing a budget, and setting financial goals.  She also was responsible for developing marketing strategies with the sales force for new programs.  Malinsky quit the position because she felt that the sales manager, Kailen Rosenberg, was undermining her efforts.

            The Rosenbergs’ son was the sales manager until March 2002 when the Rosenbergs hired their daughter-in-law, Kailen Rosenberg, as a sales manager on a temporary basis.  Kailen Rosenberg, who was pregnant, was hired to work in sales until her baby was born in June.  As sales manager, Kailen Rosenberg reported directly to Charles and Caryn Rosenberg. 

            Kailen Rosenberg immediately began participating in Malinsky’s meetings with the sales force.  Soon memos from Kailen Rosenberg replaced the meetings, and the sales force was instructed to report to Kailen Rosenberg’s associate director.  On several occasions, Malinsky asked the Rosenbergs to define Kailen Rosenberg’s role in the company and to set boundaries because Malinsky, who felt excluded from the sales force, believed that Kailen Rosenberg was undermining the marketing strategies that she had implemented.  The Rosenbergs assured Malinsky that Kailen Rosenberg’s position was temporary and confined to the sales department.  At a role-definition meeting, however, Kailen Rosenberg defined her work responsibilities in a manner that overlapped with Malinsky’s in several areas.  Malinsky again reported her concerns to the Rosenbergs but received the same responses.  Kailen Rosenberg in turn reported to the Rosenbergs that Malinsky had addressed inappropriate issues with the staff at a sales meeting.  Malinsky regarded this as an attack on her character. 

            The Rosenbergs never considered terminating Malinsky’s employment.  Rather, the record establishes that the Rosenbergs encouraged Malinsky to stay.  Charles Rosenberg tried to remedy the conflict between Malinsky and Kailen Rosenberg by handling all matters with the sales force until the conflict was resolved, meeting with Kailen Rosenberg and Malinsky, and requiring that all communication between Kailen Rosenberg and Malinsky go through either him or Caryn Rosenberg.  Despite these efforts, the situation worsened after a co-worker, who had been in Kailen Rosenberg’s office after hours, copied Kailen Rosenberg’s personal notes from their last meeting and gave them to Malinsky.  The notes show, among other things, that Kailen Rosenberg considered Malinsky to be a “toxic” employee. 

On May 2, 2002, Malinsky submitted a letter of resignation.  Charles Rosenberg asked Malinsky to stay on for a few more weeks to see if things could be worked out.  Malinsky did so.  On May 20, Malinsky perceived that the situation would not improve even though Kailen Rosenberg would be on maternity leave beginning in June.  When Malinsky handed over her files and office keys, Caryn Rosenberg again proposed that she stay on through Kailen Rosenberg’s maternity leave.  She proposed that, during Kailen Rosenberg’s absence, Malinsky and the Rosenbergs would develop a business plan.  Malinsky declined this offer.

            Malinsky established a benefit account with the Minnesota Department of Economic Security effective May 19, 2002.  On June 24, 2002, a department adjudicator determined that Malinsky was disqualified from receiving unemployment benefits because she did not quit for a good reason caused by her employer.  Malinsky appealed.  Charles Rosenberg appeared before an unemployment law judge (ULJ) on August 8, 2002.  The ULJ affirmed the disqualification.  Malinsky requested a rehearing because illness prevented her from attending the August hearing.  The parties appeared before the same ULJ on October 15, 2002.  After the second hearing, the ULJ reversed the disqualification, stating that Malinsky quit the employment because of a good reason caused by the employer.  CARYN appealed.  On February 25, 2003, the commissioner’s representative determined that no exceptions to disqualification applied.  This appeal followed. 



On certiorari appeal, we review the decision of the commissioner’s representative, not that of the unemployment law judge.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  Whether the employee had good reason to quit caused by the employer is a question of law subject to de novo review.  Kehoe v. Minn. Dep’t of Econ. Sec., 568 N.W.2d 889, 890 (Minn. App. 1997).  When the parties present conflicting evidence, however, we must defer to the commissioner’s credibility determinations.  Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995).  We review findings of fact in the light most favorable to the commissioner’s decision and will not disturb them if there is evidence that reasonably tends to sustain them.  Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989). 

An employee can receive unemployment benefits if he or she “quit the employment because of a good reason caused by the employer.”  Minn. Stat. § 268.095, subd. 1(1) (2002).  A good reason for quitting caused by the employer 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, reasonable worker to quit and become unemployed rather than remaining in the employment.


Id., subd. 3(a) (2002).


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(b) (2002). 

Malinsky argues that the decision by the commissioner’s representative is erroneous because her employer’s failure to address adequately the actions of Kailen Rosenberg who created an environment that prevented Malinsky from performing her job constitutes a good reason to quit caused by her employer.  Good cause attributable to the employer does not include situations where an employee experiences irreconcilable differences with others at work or where the employee is simply frustrated or dissatisfied with his or her working conditions.  Trego v. Hennepin County Family Day Care Ass’n, 409 N.W2d 23, 26 (Minn. App. 1987); Portz v. Pipestone Skelgas, 397 N.W.2d 12, 14 (Minn. App. 1986).  A reason constitutes “good cause” to quit if it is “compelling, real and not imaginary, substantial and not trifling, reasonable and not whimsical or capricious.”  Ryks v. Nieuwsma Livestock Equip., 410 N.W.2d 380, 382 (Minn. App. 1987) (citing Kratochwill v. Los Primos, 353 N.W.2d 205, 207 (Minn. App. 1984)).  Cf. Porrazzo v. Nabisco, Inc., 360 N.W.2d 662 (Minn. App. 1985) (finding good cause to quit where an unworkable relationship with an immediate supervisor, plus an increase in responsibilities with no corresponding increase in salary). 

            In Trego, a nutritionist resigned, in part because she was dissatisfied with her employer’s choice of interim director.  409 N.W.2d at 26.  Finding no compelling, reasonable, and substantial reasons for the nutritionist to quit, we concluded that, “[i]nstead of remaining employed and making an effort to work out her problems as . . . suggested, [relator] chose to become unemployed.”  Id. 

            Here, as in Trego, Malinsky experienced irreconcilable differences with others at work and was frustrated or dissatisfied with her working conditions.  Malinsky was given the opportunity to stay and improve the situation but chose not to do so.  The Rosenbergs tried various strategies to remedy the situation between Kailen Rosenberg and Malinsky, and they proposed another on the eve of Malinsky’s departure.  But Malinsky chose to resign.  The record does not demonstrate that Malinsky’s experience would compel a reasonable worker to become unemployed.  Because the circumstances presented do not constitute a good reason to quit caused by the employer, we affirm.