This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Shervey Agency, Inc.,
Commissioner of Employment
and Economic Development,
Filed May 3, 2005
Department of Employment
and Economic Development
File No. 5680 04
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 Toussaint, Chief Judge, Kalitowski, Judge, and Klaphake, Judge.
Pro se relator Lisa A. Andrews challenges a decision by a representative of the respondent Commissioner of Employment and Economic Development determining that she quit her employment with respondent Shervey Agency, Inc., without good reason caused by her employer and was thus disqualified from receiving unemployment benefits. Relator argues that she quit on March 5, 2004, after the district manager made sexually suggestive remarks to her and after her employer did nothing about it when she brought it to his attention.
Because the evidence reasonably supports the commissioner’s representative’s determinations that the remarks made by the district manager were not “so offensive or egregious” as to cause relator to quit without giving her employer an opportunity to take corrective action and that the other reasons given by relator for quitting fail to constitute a good reason caused by her employer to quit, we affirm.
review is very narrow and we must defer to findings made by the commissioner’s
representative if there is any reasonable evidence to sustain them. White v. Metro.
employee who quits a job is disqualified from receiving unemployment benefits
unless he or she quits “because of a good reason caused by the employer.” Minn. Stat. § 268.095, subd. 1(1) (Supp.
2003). A good reason caused by an employer is
defined as a compelling reason for which the employer is responsible and which would
cause an “average, reasonable worker to quit and become unemployed” rather than
Here, in early February 2004, several weeks prior to the alleged harassment, relator gave her employer notice of her intent to quit because she did not want to obtain the necessary licensing to continue her job. She agreed to continue working until her employer hired a replacement. Relator claims that she decided to walk out on March 5 because the district manager was sexually harassing her and her employer did nothing about it when she brought it to his attention.
The evidence established that on the day that relator walked out and quit her job without notice, the district manager had commented on her legs and on a butterfly pin she was wearing on her chest. Relator testified at the hearing before the unemployment law judge that these remarks were made in a “leering manner” and made her feel “uncomfortable.” Relator claimed that when she complained to her employer about the district manager’s comment about her legs, her employer did nothing; she acknowledged, however, that she told her employer that the district manager’s comment was “very inappropriate” and that “things like that . . . just don’t fly in this day [and] age and basically if I wanted to file a harassment suit . . . I could get a hell of a lot of money.” Relator testified that her employer must have said something to the district manager, because when she saw him later, he was “real snide with me” and suggested that he should not comment about the butterfly pin on her chest because she might accuse him of harassment. At that point, relator testified that she became “flustered” and quit later that day.
While the district manager’s single, fleeting remark about relator’s legs might have been tactless and overly personal, we cannot conclude that it rises to the level of sexual harassment as defined by the statute. See Minn. Stat. § 268.095, subd. 3(e) (defining sexual harassment as including “unwelcome sexual advances . . . or other conduct or communication of a sexual nature” that “has the purpose or effect of substantially interfering with an [employee’s] work performance or creating an intimidating, hostile, or offensive working environment”). In addition, the district manager’s comment about relator’s pin appears directed at relator’s perceived over-sensitivity; it was not a communication of a sexual nature.
Moreover, relator failed to give her employer a meaningful opportunity to correct the situation before she quit. Her decision to leave the office that day gave her employer no opportunity to further address her complaint. As the commissioner’s representative notes, relator’s own testimony suggests that she decided to walk out when she did because she believed that the district manager’s comment about the way she was dressed was worth a large settlement.
Relator cited additional reasons influencing her decision to quit, including her concerns over the employer’s financial status based on its loss of long distance service for several weeks and its issuance of an NSF paycheck to another employee. While these reasons may have provided relator with good personal reasons for quitting, they fail to constitute good reason caused by the employer so as to qualify relator for unemployment benefits.
Relator finally accuses the employer of falsifying facts during the hearing before the unemployment insurance judge. In particular, she asserts that the employer falsified his testimony when he stated that the district manager was not an employee and had no business interaction with or supervisory authority over other employees. Relator complains that when she attempted to question the employer about his statements during the hearing, the unemployment judge “kept cutting me off . . . and finally I just gave up because [the unemployment judge] kept interrupting my questioning process.” Relator asserts that she was treated unfairly and was not given an opportunity to establish her case.
A reading of the transcript of the hearing establishes that relator was given an opportunity to be heard and present evidence, including the opportunity to question her employer. Although the unemployment judge would not allow relator to ask leading questions or to offer her own testimony during her direct examination of the employer, the judge did not interrupt relator or otherwise restrict her questioning of witnesses. With respect to relator’s claim of falsified testimony, the employer and relator both testified regarding the district manager’s relationship to the employer. Even if the commissioner’s representative had accepted relator’s claims that the district manager was more directly involved in office activities and had some supervisory authority over her, there is no evidence to show that the conditions or terms of her employment were adversely affected by her rejection of the district manager’s comments. See Minn. Stat. § 268.095, subd. 3(e) (defining sexual harassment). The comments thus do not rise to the level of sexual harassment so as to constitute good reason caused by her employer to quit.
The decision of the commissioner’s representative is affirmed.
The revisor of statutes inadvertently
substituted the term “ineligible for” for the term “disqualified from” in Minn.
Stat. § 268.095, subds. 1, 4, 7, 8(a) (Supp. 2003). See Minn.
Stat. § 268.095, subds. 1, 4, 7, 8(a) (2002) (using term “disqualified from”);
2003 Minn. Laws 1st
 On appeal, she uses stronger language and claims that she has suffered emotional trauma and that even walking past another insurance office has made her “sick to my stomach because I re-live the harassment all over again.”
 Relator further testified that this particular manager had made similar comments to her prior to this date. Relator admitted, however, that she had never complained before.