This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
Mary T. Lund,
Ind.School District #110,
Department of Employment and Economic Development,
Filed November 13, 2007
Department of Employment and Economic Development
File No. 11675-06
Mary T. Lund, 209 Linden Circle, Waconia, MN 55387 (pro se relator)
Lee B. Nelson, E200 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101 (for Department of Employment and Economic Development)
Independent School District #110, District Office, 512 Industrial Boulevard, Waconia, MN 55387 (respondent)
Considered and decided by Dietzen, Presiding Judge; Ross,
Judge; and Harten, Judge.
Relator Mary Lund, pro se, challenges the conclusion of an unemployment law judge (ULJ) that relator was disqualified from receiving unemployment benefits because she quit her employment without good reason caused by the employer. There being adequate evidentiary support for the ULJ’s conclusion, we affirm.
In September 2001, relator began working for respondent Independent School District # 110 as a management assistant (MA). Her job entailed providing one-on-one assistance for students who had difficulty in school. At first, she assisted primarily students with learning difficulties; then the school’s population changed to include more students with behavioral problems rather than learning difficulties.
A set of notes on relator’s job performance for ten dates between 9 September 2005 and 9 February 2006 indicates that relator was not following the directions of licensed staff in her management of students, was inconsistent in enforcing rules, engaged in argumentative conversation with students, used a technique intended to calm students as a punishment, and failed to observe appropriate boundaries with students.
On 6 March 2006 relator received a “notification of reassignment due to unsatisfactory performance.” She was told to implement a plan to help her develop skills in the classroom. On 14 March 2006, she received notice of a “follow-up meeting due to unsatisfactory performance” and was told that she had 30 school days “to make a significant change in [her] management style.” On 22 March 2006 relator was notified of another meeting and presented with “a list of concerns” indicating, among other things, that she provoked a student’s behavior, did not provide consistent directives or the short directives needed by autistic students, engaged in power struggles, failed to set the physical boundaries needed for her own safety and that of the students, failed to read students’ non-verbal body language, and failed to follow through appropriately on consequences for students’ behavioral infractions. The notice also stated that there had been no improvement in relator’s performance since 14 March 2006.
On 10 April 2006 an autism specialist observed relator interact with the student she was assigned to help. The specialist wrote a report that relator received on 11 April 2006. In the summary section, it stated that the relationship between the student and relator “does not appear to be positive or teachable and seems to only be making [the student’s] social and coping skills decrease.” The last paragraph addressed relator, saying, “You continue to have difficulty managing [the student’s] behavior, which results in loss of valuable learning time. I strongly suggest you evaluate your ability to perform your duties as a Management Assistant. It is very clear that you are unsuccessful at performing your duties . ”
On 18 April 2006, similar language appeared at the end of a memo concerning another MA’s observations of relator. That MA’s report cited a number of instances in which relator had not done what an MA was trained to do with the students. The memo also indicated that the student’s mother had written to the school saying that she did not want relator working any longer with her son because he had begun having great difficulty in school since relator was assigned to him.
Relator resigned her employment with the district. On 21 April, the principal sent her a letter stating:
Thank you for your e-mail requesting to terminate your position with District 110 schools. In the past 2 months, you have recognized that it is very difficult for you to manage your job as a Management Assistant for a student with special needs. I respect and value your integrity in making this decision because you put the needs of the child first.
As we discussed the School District will pay for two more months of insurance (health and dental) and we will not contest your filing for unemployment checks.
Relator filed for unemployment benefits that were denied by a department adjudicator because she had quit her job without good reason caused by her employer. She appealed and, following a telephone hearing, a ULJ affirmed the denial. Relator sought reconsideration, and the denial was again affirmed. She now appeals, arguing that she had good reason caused by her employer for quitting her job.
The determination that an employee quit without good reason attributable to the employer is a legal conclusion, but the conclusion must be based on findings that have the requisite evidentiary support. See Zepp v. Arthur Treacher Fish & Chips, Inc., 272 N.W.2d 262, 263 (Minn. 1978) (interpreting a predecessor statute and requiring “good cause” attributable to employer).
Minn. Stat. § 268.095, subd. 3 (2006) provides:
(a) A good reason caused by the employer for quitting is a reason:
(1) that is directly related to the employment and for which the employer is responsible;
(2) that is adverse to the worker; and
(3) that would compel an average, reasonable worker to quit and become unemployed rather than remaining in the employment.
. . . .
(c) 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.
. . . .
(e) Notification of discharge in the future . . . shall not be considered a good reason caused by the employer for quitting.
Realtor argues that, even if the employer was obliged to address concerns about her performance, “the manner and frequency of [the employer’s]’s interventions [created] an atmosphere that would cause a reasonable worker to quit.” But, if relator believed she was being subjected to adverse working conditions, those conditions cannot be considered “a good reason caused by the employer for quitting” unless relator complained about them, thereby giving her employer an opportunity to correct them. Minn. Stat. § 268.095, subd. (c).
At the end of the hearing, after being asked for her closing statement, relator said, “I complained to the employer about the adverse conditions and nothing was done to correct them.” The ULJ then asked her, “What did you want done?” Relator replied, “Well, I suppose what I wanted would be the 30 days to be reviewed rather than every other day or however frequently it turned out to be, and a chance to explain myself . . . to [the principal], rather than just receiving the memos from her.” But the record shows that relator complained about the frequency of the communications about her performance only after she quit. The record also shows that every communication relator received mentioned a meeting to discuss the problem. During her employment, relator did not complain to her employer about the frequency of the communications as an “adverse working condition” and the employer did provide the relief relator later said she wanted by offering her an opportunity to discuss her problems.
Moreover, during the hearing, the principal explained why the school communicated so frequently with relator about the deficiencies in her performance.
[O]ur children were having episode after episode . . . . These children have behaviors that come from an autism background . . . . [T]here’s specific ways to manage this behavior and we have explained it [to relator] over and over and over again, and . . . it was just not happening because the episodes were just becoming worse and worse everyday. And that’s when we had to keep giving her memos because if I would just say something, it was like we never said it at all . . . . [T]he frequency came because that’s how many episodes there were in that amount of time that I had to address.
Thus, even if relator had complained that she felt the frequent assessment and feedback were creating an adverse situation for her, both were necessitated by deficiencies in her own performance and the needs of the students for whom she was caring. The ULJ’s findings that “[the employer] had significant reasons to monitor [relator’s] performance,” that “[the employer]was [not] being unreasonably harsh with [relator] or undermining her,” and that “[the employer] was assessing [relator] in trying to get her to improve” are supported by the evidence.
Relator also argues that the ULJ violated Minn. Stat. § 268.105, subd. 1(c) (2006), by not setting out in writing why she discredited the testimony of relator and her witness and credited that of the principal. But the parties did not deliver contradictory testimony—they all agreed that relator was provided with very frequent negative feedback during her last month of employment. The principal explained that this frequency was because of the needs of the students. Relator did not deny that she was unable to manage the students’ behavior, nor did she dispute that she failed to follow the directions and established procedures for managing it. The ULJ’s findings do not indicate that she discredited any testimony.
Finally, relator argues that the employer was pressuring her to quit. Even if that were true, it would not constitute a good reason caused by the employer for quitting. See Minn. Stat. § 268.095, subd. 3(e) (notification of pending discharge is not considered a good reason caused by the employer for quitting).
The ULJ’s conclusion that relator quit her employment without a good reason caused by her employer has ample evidentiary support.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.