This opinion will be unpublished and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
Salamatu S. Forte,
Marriott Senior Living Services, Inc.,
Commissioner of Employment and Economic Development,
Filed December 28, 2004
Department of Employment and Economic Development
File No. 15947 02
Benjamin L. Weiss, Southern Minnesota Regional Legal Services, Inc., 166 East 4th Street, Suite 200, St. Paul, MN 55101 (for relator)
Elizabeth Papacek, Leonard Street and Deinard, 150 South 5th Street, Suite 2300, Minneapolis, MN 55402 (for respondent employer)
Lee B. Nelson, Linda A. Holmes, Department of Employment and Economic Development, E200 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101 (for respondent commissioner)
Considered and decided by Shumaker, Presiding Judge, Halbrooks, Judge, and Huspeni, Judge.
Relator brings a certiorari appeal from the decision by the commissioner’s representative rejecting her claims of discrimination, and finding that because relator quit without good cause attributable to the employer, she was disqualified from receiving unemployment benefits. Relator argues the commissioner’s representative (1) failed to defer to the conclusions by the St. Paul Department of Human Rights; (2) applied the wrong standard in concluding relator’s reasonable and fact-based belief that she was discriminated against did not establish good cause to quit; (3) erred as a matter of law in concluding that four separate incidents of excessive discipline and physical intimidation by her supervisor did not establish good cause to quit; and (4) erred as a matter of law in concluding relator did not give the employer sufficient opportunity to correct the problem. We affirm.
Relator Salamatu Forte is a black woman from the West African country of Sierra Leone. In September 2001, she began working as a certified nursing assistant for respondent Marriott Senior Living Services, Inc. (Marriott). During the course of her employment with Marriott, relator felt that she was harassed by her supervisors and discriminated against on the basis of her national origin. As a result of the alleged unfair treatment, relator quit her employment on September 11, 2002.
Relator’s application for unemployment benefits was denied; that denial was affirmed on appeal by an unemployment law judge who determined that relator had quit her job without good reason caused by her employer, and had also failed to afford her employer sufficient opportunity to correct any alleged problems. Upon further appeal, the commissioner’s representative affirmed the disqualification.
While relator’s appeal was pending in this court, the St. Paul Department of Human Rights (DHR) issued a finding of probable cause that relator had been discriminated against on the basis of national origin. This court granted relator’s motion to remand to the commissioner’s representative for consideration of the evidence gathered by the DHR. On remand, a second evidentiary hearing was conducted, at which the DHR’s file and findings were admitted. Testimony concerning the following events was presented over the course of the two evidentiary hearings.
Relator testified that she was singled out because she is a foreign-born national, and that the primary person who was treating her unfairly was her African-American supervisor, Keisha Hooper. On one occasion, Hooper placed a lock on relator’s locker. The locker bore relator’s name and contained her purse. According to relator, after she had the maintenance man cut the lock, Hooper became very angry over the incident, and yelled and screamed at her for having the lock removed. Hooper admitted placing the lock on the locker, but testified that she failed to notice relator’s name on the locker or its contents.
On July 8, 2002, relator was reprimanded in writing for her choice of words in failing to assist a patient while she was assisting another patient. Relator stated on the telephone to the patient seeking assistance, “You’ll have to wait, I am too busy.” Hooper testified that, proper telephone etiquette would have required relator to say, “I’m with another resident, I’ll come back to you.” Relator challenged the written reprimand, claiming she was being unfairly treated because she is an alien. She claimed that African-American staff members regularly told patients that the staff were “busy” and reprimands never issued against those staff members. Ultimately, review of relator’s challenge resulted in the employer concluding that the written reprimand was too harsh; the reprimand was modified to a documented verbal warning.
On August 9, 2002, Hooper verbally warned relator for clocking-in early, clocking-out late, and taking less than full lunch breaks. Relator refused to sign documentation of the warning because she had not been notified that she was doing anything wrong. According to relator, Hooper grabbed paperwork from relator and slammed relator’s hand. The documentation of the warning was later signed by the employer’s human resources director, as a witness to relator’s refusal to sign.
On August 20, 2002, after relator and another employee agreed to “swap” patients, one patient was not given proper attention. Hooper considered the mistake to be a result of “miscommunication,” and at a staff meeting the following day, Hooper stressed the need to address “communication issues,” including “language barriers.” Relator believed the “language barrier” comment was directed specifically toward her. According to relator, Hooper then began yelling at relator, and “poked” relator in the forehead with her finger. Although the alleged physical contact between relator and Hooper was not witnessed by others, witness testimony corroborated relator’s claims that Hooper was yelling “in [relator’s] face.” Hooper admitted that the conversation was heated, but she denied touching relator. Employer’s interim manager met later with Hooper and “counseled” her for her behavior.
On Friday, September 6, 2002, relator complained in writing of unfair treatment and requested a transfer. Following an investigation that same day into relator’s complaints, a meeting was held that included management, relator, and Hooper, at which relator was informed that there was insufficient evidence to support her harassment claims. She was also informed that she could transfer as long as there were openings that allowed for a transfer.
After the meeting, relator requested in writing that she have the following Monday off to attend a doctor appointment. She had scheduled the appointment the day before, but failed to inform anyone about it; she circled “emergency” on the request form, and left the form in a tray. Relator testified that before she left for the day, she checked the tray and the request form was gone. Hooper did not grant relator’s request because Hooper did not believe relator had a real “emergency.” Hooper did not inform relator of the denial, however.
At the doctor appointment on Monday, September 9, relator was told to return the next day for a mammogram. She testified that she then called the employer’s nurse on duty and told her that she would not be in the next day. Testimony differed as to whether relator’s phone message reached the proper personnel; one witness testified that it did, but Hooper testified that she checked with the on-duty nurse, and the nurse had no recollection of relator’s call.
On September 11, 2002, at a meeting with Hooper and a human resources representative, relator was given a written warning stating that her absence on September 9 was an “improper call-off,” and her absence on September 10 was a “no-call, no-show.” Relator became upset and refused to sign the warning. After a lengthy discussion, she quit.
At the conclusion of the second evidentiary hearing, the unemployment law judge determined that relator was disqualified from unemployment benefits because she quit her job without good reason caused by her employer. On certiorari appeal, the commissioner’s representative affirmed.
D E C I S I O N
Appellate courts review the findings of the commissioner’s representative rather than those of the unemployment law judge. Tuff v. Knitcraft, 526 N.W.2d 50, 51 (Minn. 1995). In doing so, this court views the factual findings in the light most favorable to the decision to determine whether the evidence reasonably sustains them. Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989). Whether an employee has a good reason to quit is a question of law that this court reviews de novo. Id.
An employee who quits employment is disqualified from receiving unemployment benefits unless the employee quits for 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 . . . for which the employer is responsible” and so significant that it would “compel an average, reasonable worker to quit and become unemployed rather than remaining in the employment.” Minn. Stat. § 268.095, subd. 3(a)(1), (2) (2002). While harassment, disparate treatment, and stressful working relationships with supervisors may constitute good cause attributable to an employer, Tru-Stone Corp. v. Gutzkow, 400 N.W.2d 836, 838 (Minn. App. 1987), personality conflicts with supervisors do not constitute good cause. Bongiovanni v. Vanlor Invs., 370 N.W.2d 697, 699 (Minn. App. 1985).
Relator argues that the evidence she presented established that she had good cause to quit because she was discriminated against on the basis of her national origin. We agree that relator presented testimony that Hooper would use different tones of voice when asking immigrants to do something as compared to how she asked American-born employees to do the same thing. Relator also presented testimony that Hooper denied shifts to African-born employees, and would yell at relator, physically intimidate her, and subject her to excessive discipline. Relator fails to recognize, however, that there was contradictory testimony presented, and we must defer to the credibility judgments made by the commissioner when testimony conflicts. See Jenson v. Dep’t of Econ. Sec., 617 N.W.2d 627, 631 (Minn. App. 2000), review denied (Minn. Dec. 20, 2000).
While the commissioner’s representative found that Hooper’s comment regarding “language barriers” was, indeed, directed at relator and was inappropriate, and that Hooper acted aggressively, the commissioner’s representative also found that Marriott acted appropriately by verbally disciplining Hooper. The commissioner’s representative further concluded that Marriott acted properly and in accordance with company policy in connection with the “phone etiquette” incident, by recognizing that its original sanction was too harsh, and modifying that sanction to reflect an oral warning rather than a written one. Accordingly, there is substantial evidence in the record supporting the commissioner’s representative’s determination that relator was not discriminated against on the basis of her national origin and that she quit without good reason caused by her employer.
Relator next argues that the findings and expert conclusions of the DHR further support her contention that she was a victim of national-origin discrimination, and that the commissioner’s representative failed to give proper deference to the DHR’s findings in making its decision. In support of her contention, relator cites Trebelhorn v. Minneapolis Cable Sys., Inc., 380 N.W.2d 237, 239 (Minn. App. 1986), for the proposition that courts are mandated to defer to the findings of agencies in their areas of expertise.
We note initially that Trebelhorn provides weak support for relator’s argument. Trebelhorn involved an appeal from a determination by the Commissioner of Economic Security. The deference due in Trebelhorn was due the agency whose decision was being reviewed. Relator would have this court extend that deference to DHR in an appeal from a decision of the Commissioner of Economic Security. We are cited to no authority that such an extension of deference is warranted. Further, even if we were to assume some deference to the DHR report here,Trebelhorn also observes “it is not evident that administrative expertise is a deciding factor when a decision rests largely upon an assessment of the credibility of witnesses.” See id. (stating that expertise can become a monster, which rules with no practical limits on its discretion). Ultimately, this case rests with the credibility of the individuals involved.
Although the commissioner’s representative found that most of the witnesses who testified thought that Hooper was unfair, too aggressive, and dishonest, the commissioner’s representative also inferentially minimized the credibility of those witnesses by finding that they liked relator better than they liked Hooper. See Jenson, 617 N.W.2d at 631. The commissioner’s representative acknowledged the DHR’s findings of probable cause of national-origin discrimination, but concluded that the evidence cited in the DHR report did not establish good cause to quit.
The commissioner’s representative stated that the standards for good reason to quit in the Minnesota Unemployment Insurance Law are not the same as the standards promulgated in the St. Paul Human Rights ordinance. The commissioner’s representative specifically noted that the DHR’s findings were “diminished by the fact that Marriott did not have an opportunity to participate in that forum.” The commissioner’s representative further stated that
Marriott and [relator] both participated fully in the proceedings before the Department of Employment and Economic Development; they were both represented by attorneys; the attorneys had the opportunity to examine or cross-examine the witnesses; all testimony was given under oath; and due process was afforded to both parties.
Because of the credibility issues involved, the commissioner’s representative was not bound to adhere to the DHR’s findings. See Trebelhorn, 380 N.W.2d at 239.
Relator argues that the commissioner’s representative applied the wrong standard in concluding that relator did not establish good cause to quit. Relator contends that the proper standard is whether relator’s belief that she was being discriminated against because of her national origin was reasonable based on the available information. Relator fails to recognize, however, that the statute requires that good reason to quit must be directly related to employment for which the employer is responsible, and be so significant that it would compel an average reasonable worker to quit. Minn. Stat. § 268.095, subd. 3(a)(1), (2) (emphasis added).
Although relator may have believed that based on the available information she was a victim of discrimination, the statutory standard for good reason to quit is objective. See id. The commissioner’s representative considered the available information, and concluded that the conflicts between relator and Hooper would not compel an average reasonable worker to quit and become unemployed. Thus, the commissioner’s representative applied the proper standard in denying relator’s claims.
Relator argues that even if the evidence does not support her claim that she was a victim of national-origin discrimination, the evidence and testimony provided at the hearings established good reason to quit as a matter of law. We disagree. The commissioner’s representative concluded that relator quit primarily because of her conflict with Hooper. But a good reason to quit is not established when an employee has irreconcilable differences with his employer or when an employee is simply frustrated or dissatisfied with his working conditions. Ryks v. Nieuwsma Livestock Equip., 410 N.W.2d 380, 382 (Minn. App. 1987).
Here, the commissioner’s representative acknowledged that Hooper could be a difficult supervisor, and that Hooper’s comment concerning the language barrier was inappropriate. But the commissioner’s representative also recognized that Marriott disciplined Hooper for her behavior, that relator’s testimony with respect to the alleged “physical contact” was not credible, and that with the exception of the “telephone etiquette” incident (which discipline was later modified by the employer), relator was properly disciplined in accordance to company policy. Although there is testimony in the record that supports relator’s claim, the commissioner’s representative found much of that testimony to be not credible. We must defer to those credibility determinations. See Jenson, 617 N.W.2d at 631. The commissioner’s representative properly concluded that the circumstances would not have compelled an average reasonable worker to quit.
Finally, relator contends that the commissioner’s representative erred in concluding that relator did not give Marriott sufficient opportunity to correct the problem about which relator complained. In support of her claim, relator asserts that she complained at least four times, but each time she complained, her complaints were discredited and the harassment increased. Relator argues that because Marriott failed to take “decisive action” in response to her complaints, she established good cause to quit.
It is well settled that good cause to quit may be established if the employee has been subjected to harassment on the job and can demonstrate that he gave his employer notice of the harassment and an opportunity to correct the problem. Tru-Stone Corp., 400 N.W.2d at 838. The reasons for discontinuing employment constitute good cause where the employer has not provided any expectation of assistance or has failed to address the problems. Id.
Here, the record shows that relator complained to management that she was not being treated fairly. But the record also shows that Marriott took steps to alleviate relator’s dissatisfaction with her employment. For example, after relator complained about the “phone etiquette” incident, Marriott determined that the punishment was excessive. In addition, at the meeting held on September 6 to discuss relator’s grievances, she was asked if she could work with Hooper. The parties agreed that relator would notify management if she felt she could continue to work with Hooper. Relator was also told she could transfer when a position became available.
Relator did not work again until September 11, the day she was written up for the “no-call-no-show” incident. When confronted with relator’s failure to follow company policy with respect to taking leave, relator quit. Although Marriott tried to convince her to stay, relator refused. The record shows that Marriott was in the process of taking action with respect to relator’s complaints, but relator quit before the situation could be resolved. Therefore, the commissioner’s representative did not err by concluding that relator failed to give Marriott sufficient opportunity to correct the problem.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 Relator testified that she was working the extra time because English is not her first language and she needed extra time to properly complete her charting.
 At some point during the argument between Hooper and relator, Hooper ordered all staff members, except relator, to leave the room. When the parties emerged from the room, one of the employees testified that she heard relator say to Hooper, “You’re not going to hit me again.”
 The request forms state, “Please turn in requests at least 30 days in advance, except in case of an emergency.” The employer’s attendance policy states that an employee must notify a manager or supervisor at least two hours before missing a scheduled shift.
 We note respondent’s observation at oral argument that the DHR report disapproved the criticism relator’s employer made of her early “clocking in” and late “clocking out,” when under principles of employment law that criticism is well-founded and acceptable in order to avoid claims of entitlement to overtime pay and other labor-related claims.
 It is unclear from the record if a position was open at the time relator requested a transfer.