This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat.§ 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-96-908

June K. Alich,

Relator,

vs.

J C Penney Company, Inc.,

Respondent,

Commissioner of Economic Security,

Respondent.

Filed October 22, 1996

Affirmed

Kalitowski, Judge

Department of Economic Security

File No. 369UC96

John O. Murrin III, Murrin Law Firm, 4018 W. 65th Street, Edina, MN 55435 (for Relator)

Stephen Jerome Randall, 1012 Grain Exchange Building, 400 South 4th Street, Minneapolis, MN 55415 (for Relator)

Robert Zeglovitch, Valerie Blatnik-Sigel, Leonard, Street and Deinard, Suite 2300, 150 South Fifth Street, Minneapolis, MN 55402 (for Respondent J C Penney Company)

Kent E. Todd, 390 North Robert Street, St. Paul, MN 55101 (for Respondent Commissioner of Economic Security)

Considered and decided by Willis, Presiding Judge, Lansing, Judge, and Kalitowski, Judge.

U N P U B L I S H E D O P I N I O N

KALITOWSKI, Judge

Relator June Alich challenges her disqualification from reemployment insurance benefits, claiming the representative of the Commissioner erroneously determined: (1) she voluntarily terminated her employment, and (2) there was no good cause attributable to her employer for her voluntary termination. We affirm.

D E C I S I O N

Under Minnesota law, an employee is disqualified from benefits where the employee "voluntarily and without good cause attributable to the employer discontinued employment." Minn. Stat. § 268.09, subd. 1 (a) (1994). The purpose of the statute is "to deny benefits to anyone whose termination was volitional and not a result of circumstances beyond his control." Jansen v. Peoples Elec. Co., Inc., 317 N.W.2d 879, 880 (Minn. 1982). The burden of proving that an employee quit voluntarily falls on the employer. Marz v. Department of Employment Servs., 256 N.W.2d 287, 289 (Minn. 1977). Once this is proven, the burden shifts to the employee to show good cause attributable to the employer for leaving the employment. Id.

I.

Whether an individual voluntarily quit or was discharged is a question of fact, to be determined by the Commissioner. Midland Elec., Inc. v. Johnson, 372 N.W.2d 810, 812 (Minn. App. 1985). This court will not disturb the Commissioner's findings of fact "if there is evidence reasonably tending to sustain them." White v. Metropolitan Medical Ctr., 332 N.W.2d 25, 26 (Minn. 1983).

Whether a termination is voluntary or involuntary is determined

not by the immediate cause or motive for the act but by whether the employee directly or indirectly exercised a free-will choice and control as to the performance or non-performance of the act.

Wing-Piu Chan v. Pagoda, Inc., 342 N.W.2d 174, 175 (Minn. App. 1984) (citation omitted). The record here shows: (1) during the meeting with Reppe and Pettingill, Alich was assured that the December 7 incident would be investigated and resolved; (2) Alich was encouraged to return to work and wait for management to resolve the matter; (3) Reppe's statement that if Alich did not get to the department floor at 2:00 p.m. she would be terminated gave Alich the ultimate say in whether to continue or discontinue her employment; and (4) between 1:30 and 2:00 Alich called the employer from home and said she was not returning to work. We conclude the evidence was sufficient to support the finding of the Commissioner's representative that Alich voluntarily terminated her employment.

II.

Whether an employee had good cause to quit is a question of law. Zepp v. Arthur Treacher Fish & Chips, Inc., 272 N.W.2d 262, 263 (Minn. 1978). On questions of law, "this court is free to exercise its independent judgment." Smith v. Employers' Overload Co., 314 N.W.2d 220, 221 (Minn. 1981).

Employees who have been subjected to harassment on the job may establish good cause by demonstrating that they gave their employer notice of the harassment and an opportunity to correct the problem. Larson v. Department of Economic Sec., 281 N.W.2d 667, 669 (Minn. 1979). However, if an employee quits without giving the employer an opportunity to resolve the issue, the employee may be found to have quit without "good cause." See Prescott v. Moorhead State Univ., 457 N.W.2d 270, 272 (Minn. App. 1990) (holding professor terminated employment without good cause attributable to employer because he failed to take appropriate steps to seek redress from employer).

Alich argued J C Penney had notice of the harassment by Kauls, but did not take appropriate measures to end the harassment. To support her argument, Alich cited Wetterhahn v. Kimm Co., 430 N.W.2d 4 (Minn. App. 1988), where this court held the claimant had good cause to quit because the employer had notice of the harassment, but failed to take timely and appropriate measures to prevent it. Id. at 7.

Alich's reliance on Wetterhahn is misplaced. Unlike the employee in Wetterhahn, Alich did not give the employer a reasonable opportunity to address the problem. Alich's initial complaints in January and June of 1995 were too vague to constitute notice to her employer that Alich was being harassed. In addition, after waiting six days before reporting the December 7 incident to management, Alich made her complaint only half an hour before the beginning of her work shift. Management assured Alich the incident would be investigated, and the evidence shows that the employer immediately commenced an investigation. Instead of returning to work and waiting for the employer to resolve the matter, Alich quit without giving the employer a reasonable opportunity to correct the problem. Under these facts, we conclude the Commissioner's representative did not err in determining Alich quit without good cause attributable to her employer.

Affirmed.