This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).







Richard J. Smith,





Northstar Aerospace,



Department of Employment and

Economic Development,




Filed December 6, 2005

Reversed and remanded

Crippen, Judge*


Department of Employment and Economic Development

File No. 1470404


Frank Yetka, Rudy Gassert Yetka & Pritchett, P.A., 123 Avenue C., Cloquet, MN 55720-1593 (for relator)


Northstar Aerospace, Northstar Machine & Tool Co., Inc., 4212 Enterprise Circle, Duluth, MN 55811-5715 (respondent employer)


Linda A. Holmes, Minnesota Department of Employment and Economic Development, First National Bank Building, 332 Minnesota Street, Suite E200, St. Paul, MN 55101-1351 (for respondent Department of Employment and Economic Development)


            Considered and decided by Minge, Presiding Judge, Kalitowski, Judge, and Crippen, Judge.

U N P U B L I S H E D   O P I N I O N


            Relator Richard Smith disputes the judgment of the senior unemployment review judge (SURJ) that relator quit without good cause attributable to his employer.  Relator primarily contends that the SURJ erred in failing to grant a request for an additional evidentiary hearing of the unemployment law judge (ULJ).  Because we agree that the record of the telephone hearing was improperly confined, we reverse the decision of the SURJ and remand the matter with instructions that a further evidentiary hearing be conducted.


            Relator Smith began work as a supervisor for respondent Northstar Aerospace in March 2000.  In August 2004 relator resigned from his job and applied for unemployment benefits.  The Department of Employment and Economic Development denied benefits, finding that the “[i]nformation provided does not show that the employer failed in their obligation to the applicant or that the conditions were such to cause the average reasonable person to quit and become unemployed rather than remain in the employment.” 

            Relator appealed the decision to the ULJ.  An evidentiary hearing was held via telephone, and relator attended unrepresented by counsel.  The ULJ received as exhibits relator’s initial report, his request for review, and three drawings submitted by relator to illustrate offensive drawings he testified were aimed at him and circulated by other employees.

            The ULJ took testimony from relator and from two witnesses providing testimony for Northstar, including the president and relator’s supervisor.  The president of the company began and ended the hearing by stating that Northstar had no objection to relator’s appeal, and that relator was a good employee who, given the circumstances, was justified in leaving the company.  When asked during the trial to explain his choice to quit, relator stated that he ultimately quit because he was not allowed to supervise, that employees repeatedly complained about him, and that management did not support him in his role. 

            When asked about references to harassment, relator stated that he was harassed over a period of two and half years through the process of repeated and unwarranted complaints against him and the particular conduct of one employee in making complaints and inducing others to do so.  This employee once approached relator indicating that he (the employee) had an attitude “toward certain types of people” that caused him to treat relator poorly.  Although drawings related to relator’s harassment claims were received in the record, he was not questioned about them.

            The ULJ concluded that “[t]he average employee has, or should have, a modicum of tolerance and an ability to bear matters that do not markedly bother the average fellow worker.”  Similarly, the SURJ concluded on appeal that relator quit without good cause attributable to his employer under Minn. Stat. § 268.095, subd. 3 (2004).  The findings of the ULJ were paraphrased by the SURJ, who noted that relator “believed he was enmeshed in a difficult working environment, his authority had been undermined and he wasn’t being properly supported by Northstar’s management.” 

            Prior to the SURJ’s review, relator sent the SURJ a letter explaining that because the company president stated he was justified in quitting, relator “didn’t feel it was necessary to present all the evidence, which would have prolonged the hearing.”  The SURJ, commenting on this letter, concluded that an additional evidentiary hearing was not warranted because the commissioner of the Department of Employment and Economic Development is responsible for the proper payment of benefits “regardless of the level of interest or participation by applicant or employer.”  In addition, relator “was provided opportunity to testify and provide supporting evidence at the evidentiary hearing” and is not entitled to relief because he “decided not to fully do so.”  Relator contends that the president’s testimony was significant because it prompted him to make an abbreviated statement of the facts that caused him to quit.

            In an affidavit submitted to this court, relator states harassment facts that were not related in the telephone hearing.  This court does not consider the affidavit as evidence, but as an explanation of the information relator intended to offer in the event further evidentiary proceedings are granted.[1]  In his affidavit, relator asserts that the employee with whom relator had difficulties made relator’s job intolerable.  Relator claims this employee initiated a number of acts to harass relator, including racial slurs towards him and encouraging other employees to stop working cooperatively with relator, who was their supervisor.  He asserts that upon complaining of this behavior he got no support or was told that he was causing problems.  When relator complained about one employee’s lack of cooperation, he was told that this employee was “a very dangerous employee and that if [relator] made an issue out of it there would be problems”; thereafter, when this employee was rehired after once quitting, he was again put back into relator’s department.  Additionally, the tires on relator’s car were spiked on several occasions, lunch trash was thrown in the back of his truck, and another employee even threatened to physically assault him.  On a separate occasion, an employee punched a door buzzer so hard, he broke it.  When relator reported this to management, the employee threatened that next time he would punch relator instead.  


            On certiorari appeal, this court grants considerable deference to a decision by the SURJ.[2]  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  A reviewing court must examine the decision of the SURJ, rather than that of the ULJ.  Kalberg v. Park & Recreation Bd. of Minneapolis, 563 N.W.2d 275, 276 (Minn. App. 1997).  The SURJ’s findings are a mixed question of law and fact.  Colburn v. Pine Portage Madden Bros., Inc., 346 N.W.2d 159, 161 (Minn. 1984).  “[This court] review[s] the [SURJ’s] factual findings in the light most favorable to the . . . decision and will not disturb them as long as there is evidence that reasonably tends to sustain those finding.”  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  The SURJ’s “conclusions are not binding upon this court if they do not have reasonable support in the findings.”  Marty v. Digital Equip. Corp., 345 N.W.2d 773, 775 (Minn. 1984).

            An employee is justified in choosing to quit if significant working conditions would “compel an average, reasonable worker to quit and become unemployed rather than remaining in the employment.  Minn. Stat. § 268.095, subd. 3(a).  Harassment may constitute good cause attributable to the employer.  See Tru-Stone Corp. v. Gutzkow, 400 N.W.2d 836, 838 (Minn. App. 1987). 

            When a party appeals from the decision of the ULJ, the SURJ may make findings of fact and conclusions “or remand the matter back to an [ULJ] for the taking of additional evidence and the making of new findings and decision based on all the evidence.”  Minn. Stat. § 268.105, subd. 2(c) (2004). 

            The ULJ “should assist unrepresented parties in the presentation of evidence” and “shall ensure that relevant facts are clearly and fully developed.”  Minn. R. 3310.2921 (2005); see also Thompson v. County of Hennepin, 660 N.W.2d 157, 161 (Minn. App. 2003) (stating the same).  Moreover, when parties are unrepresented by counsel, the “[ULJs] have the obligation to recognize and interpret the parties’ claims.”  Miller v. Int’l Express Corp., 495 N.W.2d 616, 618 (Minn. App. 1993).

            Relator seeks a new hearing before a ULJ, asserting again that the testimony of the employer’s president prompted relator to make an abbreviated statement of the harassment facts that led to his choice to quit.  

            Having examined the complete record, we conclude that it reflects the merits of relator’s plea to submit additional evidence.  The circumstances of the telephone hearing, without further assistance of the ULJ, unreasonably confined relator’s testimony to exclude his full description of the complaint of harassment that lay at the root of his claim of good cause to quit.  The ULJ inquired of relator about his claim of harassment, to which relator alluded to the long-term pattern of complaints against him made by employees whom he supervised.  But the record makes it evident that inquiry was needed to fully state the topic of this pattern of complaints. 

            Relator testified that the person prompting much of the harassment explained that he had an attitude “toward certain types of people” that caused him to treat relator poorly.    Relator’s proposed testimony alludes to numerous events of harassment over a long period of time, much of it based on race.  In addition, there is evidentiary importance in the acknowledgement of relator’s supervisor that harassment had occurred over a period of years and that relator was justified in leaving the company.

            Most importantly, the ULJ received as evidence relator’s exhibits but failed to inquire as to the circumstances surrounding relator’s discovery of these exhibits.  The ULJ acknowledged that three exhibits were representations of papers posted by employees and they grossly maligned relator.  One of the exhibits, an obscene representation of relator’s name, required particular inquiry.  Yet, the ULJ marked the exhibits and admitted them into evidence with only cursory questions as to when relator discovered them and whether relator knew who drew the signs.

            In his initial report to the department, relator made it evident that the topic of his claim was not simply that the others complained about him, but that his employer “never looked into” relator’s complaints, and his employer “would not even ask [him] [his] side; they would just assume it was [his] fault.”  Similarly, in his initial claim for administrative review, relator noted that many “infractions were committed and reported to [his] supervisor and no action was taken.”  Additionally, relator asserted that the “only time any action was taken was when someone filed a complaint on [him].” 

            Relator reports repeated actions of his employer in minimizing harassment, failing to act, and finally complaining that relator caused his problems.  Relator asserts that the employer, knowing that one employee was “dangerous,” refused to respond when relator reported the employee’s failure to heed his supervision, and that the employee was returned to relator’s department when he was rehired after once quitting.  

            The SURJ emphasized in refusing a further hearing that “[relator] was provided opportunity to testify and provide supporting evidence at the evidentiary hearing.”  Similarly, respondent’s counsel on appeal argues that the inadequacy of the record resulted from relator’s failure to respond fully when asked to explain the accusation of harassment.  But the record shows an unwarranted failure of the ULJ in the telephone hearing to inquire beyond the general reference to harassment by unwarranted complaints. 

            The ULJs could not in these circumstances reach a conclusion on a claim of good cause to quit without evaluating all of the critical evidence respecting relator’s complaint that he suffered harassment in the form of unwarranted complaints and other bad acts. The record shows a need for inquiry both on the breadth of alleged harassment and the employer’s response when relator complained of wrongdoing.  We reverse and remand for further evidentiary hearings not inconsistent with this opinion.

            Reversed and remanded. 

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] Since relator did not present this affidavit in the proceedings below, the rules of appellate procedure bar this court from considering this additional information as part of the record.  Minn. R. Civ. App. P. 110.01 (2004) (stating that only papers filed in the trial court, exhibits, and the transcript of the proceedings constitute the record on appeal); see also Minn. R. Civ. App. P. 115.04 (2004) (stating that rules 110.01 and 111 apply with respect to the record on review by certiorari).

[2] The decision-maker conducting the review proceeding is now the senior unemployment review judge rather than the commissioner’s representative.  2004 Minn. Laws ch. 183 § 71.