This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-655

 

Laura E. Borchardt,
Relator,

vs.

Mega Stop, Inc.,
Respondent,
Commissioner of Employment and Economic Development,
Respondent.

 

Filed February 17, 2004

Affirmed

Stoneburner, Judge

 

Department of Employment and Economic Development

File No. 18440 02

 

Laura E. Borchardt, 20670 207th Court, Box 374, Lakeville, MN 55044 (pro se relator)

 

Lee B. Nelson, Katrina I. Smith, Department of Employment and Economic Development, 390 North Robert Street, St. Paul, MN 55101 (for respondent commissioner)

 

Bob Barringer, Mega Stop, Inc., Suite 132, 8500 210th Street West, Lakeville, MN 55044-5702 (respondent employer)

 

            Considered and decided by Stoneburner, Presiding Judge, Kalitowski, Judge, and Halbrooks, Judge.

 

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            Relator Laura E. Borchardt challenges the commissioner’s representative’s denial of unemployment benefits, claiming that she quit her job as deli manager for respondent Mega Stop, Inc. due to unhealthy and unsafe working conditions.  Relator also argues that the commissioner’s representative improperly reviewed evidence of employee work hours, copies of which were not in the record before the unemployment law judge.  Because the evidence reasonably supports the commissioner’s representative’s findings and the decision does not rely on evidence submitted by respondent after the hearing, we affirm.

FACTS

 

            Relator Laura Borchardt was employed from February 2000 through July 2002 by respondent Mega Stop, Inc., a 24-hour convenience store/gas station/truck stop.  She worked full-time as a deli manager and her duties included stocking shelves, cleaning machines, cleaning up food product, and loading supplies into the freezer.  She normally worked from 5 a.m. until 2 p.m. 

            Relator testified before the unemployment law judge that she gave a two-week notice to quit in early July 2002 because of her concerns regarding unsanitary store conditions, an unsafe working environment, and increased job duties.  Relator testified that employees on previous shifts neglected to put away food and left food sitting out too long, which she claimed resulted in unhealthy and unsafe food being served to customers.  She also was concerned that other employees used the food sinks in the deli area to fill dirty containers (i.e., antifreeze bottles), to rinse dirty mop water and other cleaning buckets, and as a place to throw their empty soda cans.  She claimed that she repeatedly told her manager about these other employees’ actions, but management did nothing to remedy the situation.

Relator’s manager testified that relator had complained about these concerns and he was aware that the acts complained of occurred on occasion.  He testified that he told the employees to use the appropriate sinks.  He was not aware that the employees continued to improperly use the sinks after he gave them the directive.  He was also aware that customers used the sinks to fill their containers (including water tanks, water jugs, ice chests, and antifreeze bottles).  The manager testified that he was also aware that, on occasion, the third shift was not able to finish all deli maintenance duties, which required relator to take responsibility for completing the tasks during her shift.  He spoke with the lead and second-assistant of the third shift about completing their work.  He also spoke to shift employees as needed about violations of food-handling standards.  The manager noted that, in February 2002, the store and deli area received a favorable review rating by a “secret shopper.”  He testified that he addressed all of relator’s complaints, but she became increasingly frustrated with the job and gave notice that she was quitting after she had an altercation with a customer and the manager denied her request to leave early.  A week later she sought to rescind the notice, but the position had already been filled.

            Approximately six months before relator quit, a sign in the deli area fell from above the cooler and hit her on the head.  Relator contends that she felt dizzy and nauseated but alleges that she was not allowed to leave after she asked for permission to go home.  About three months before she quit, this same sign fell and hit her on the head, and she again alleged that she was denied permission to go home.  She testified that the four-foot sign was made of wood.  About one month before she quit, she was hit on the head by improperly stored pans, and she was again allegedly denied permission to leave.  Relator’s daughter testified that she was present on the two days when relator was hit on the head by the sign, and the daughter recalls the manager denying relator’s request to go home.  Relator’s son was present on the day relator was hit by the pans, and he testified that the manager told relator that she had to remain at work.  In addition, relator claimed that ice chips on the freezer floor made the floor slippery and dangerous.

            Relator’s manager testified that relator refused medical attention when she was hit on the head by the sign and did not request to go home.  He testified that the sign is made of Styrofoam and is attached to the wall according to instructions from Mega Stop, Inc.’s headquarters.  He also testified that, after the pans hit her on the head, he asked her if she was okay and left it up to her to determine if she needed to sit down or go home.  He claims that she did not ask to go home.  The manager testified that the only occasion on which he denied relator’s request to go home was on the day she gave notice, after her altercation with the customer.  The manager further testified that it was an extremely busy day and he had no one to cover her shift.  He testified that none of relator’s other requests to leave had been denied.

            The commissioner’s representative found that relator quit her employment without a good reason caused by her employer.  This appeal by writ of certiorari followed.

D E C I S I O N

 

When reviewing the Minnesota Department of Employment and Economic Development’s determination about an employee’s qualifications for unemployment benefits, this court reviews the findings of the commissioner’s representative rather than the findings of the unemployment law judge.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  The reviewing court has a narrow standard of review that requires the court to view the findings of the commissioner’s representative in the light most favorable to the decision.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  This court will not disturb the commissioner’s representative’s findings if there is evidence that reasonably tends to sustain them.  Id

The question in this case is whether relator voluntarily quit employment without good cause attributable to her employer.  An employee who quits employment is disqualified from receiving unemployment benefits unless the employee “quit the employment because of a good reason caused by the employer.”  Minn. Stat. § 268.095, subd. 1(1) (2002).  A good reason to quit is “directly related to the employment and for which the employer is responsible” and so significant that it would “compel an average, reasonable worker to quit and become unemployed rather than remain[] in the employment.”  Id., subd. 3(a)(1), (2) (2002).  In addition, if an employee “was subjected to adverse working conditions by the employer,” the employee “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).  This court independently reviews as a matter of law whether an employee’s voluntary termination was made with good cause attributable to the employer.  Shanahan v. Dist. Mem’l Hosp., 495 N.W.2d 894, 897 (Minn. App. 1993).

The commissioner’s representative found that relator and all store personnel were expected to perform multiple duties and that relator occasionally was required to work additional hours to accomplish her duties.  Relator was hit by a Styrofoam sign twice, and once by improperly stored pans, but relator’s manager did not deny her the right to seek medical attention.  The commissioner’s representative did not, however, make findings regarding whether relator’s manager denied her alleged requests to go home on those occasions.  The commissioner’s representative did find that management denied relator’s request to go home one time (after a customer had upset relator) on the busiest day of the year and there was no other employee to cover her shift.  This court defers to the commissioner’s representative’s ability to weigh conflicting evidence.  Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995).   

On these facts, the commissioner’s representative determined that the evidence did not support that the accidents were caused by employer negligence or that relator’s work environment was unsafe such that a reasonable employee would quit, and concluded that relator did not quit her employment for good reason caused by her employer.

The evidence reasonably supports the findings of the commissioner’s representative.  Relator worked full-time hours, from approximately 5 a.m. until 2 p.m.  Sometimes, she would work longer if there was stocking to be done or other work to be completed.  But all store employees were required to perform multiple duties.  On this record, it does not appear that relator’s job responsibilities were unreasonable or excessive.  Cf. Shanahan, 495 N.W.2d at 897 (noting that unreasonable or excessive demands placed on an employee by the employer are good cause to quit attributable to the employer).  In addition, management addressed relator’s concerns regarding the duties performed by the employees in the shift before hers. 

In cases involving safety, the commissioner’s representative must determine whether the employee’s concerns were reasonable at the time of quitting.  Haskins v. Choice Auto Rental, Inc., 558 N.W.2d 507, 511 (Minn. App. 1997).  The commissioner’s representative is not to determine whether a work environment was “in fact” unsafe.  Id.  The commissioner’s representative in this case determined both that the work environment was not unsafe and that a “preponderance of the evidence does not lead us to conclude the average reasonable worker would quit under similar circumstances.”  The evidence supports the commissioner’s reasonableness determination.

Finally, there is no evidence to support relator’s argument that the food was so unsafe or the store conditions (i.e., sinks) so unsanitary that a reasonable employee would quit.  The store received a favorable review regarding the deli area and the manager testified that he addressed relator’s concerns with the other employees.

We cannot conclude that, on this record, a reasonable worker would have quit rather than remain in the employment. 

Relator also argues that the employer provided the commissioner’s representative with additional evidence that was not before the unemployment law judge at the evidentiary hearing.  The evidence was a copy of employee work hours from 12/31/01 to 7/7/02.  Relator attached the evidence in her appendix for this appeal.  Under Minnesota law, the commissioner’s representative “shall not . . . . consider any evidence that was not submitted at the hearing before the unemployment law judge.”  Minn. Stat. § 268.105, subd. 2(d) (2002).  In this case, the copy of employee work hours was not in the record before the unemployment law judge and should not, therefore, be considered by the commissioner’s representative.  But the commissioner’s representative’s decision does not refer to this evidence, and the record supports the commissioner’s representative’s decision without this evidence.

            Affirmed.