This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Christine E. Wessels,



SMI Contracting, Inc.,


Commissioner of Economic Security,


Filed August 5, 1997


Huspeni, Judge

Department of Economic Security

File No. 8517 UC 96

Joanne Jirik Mullen, Barbara J. Felt, Reinhardt and Anderson, E-1000 First National Bank Building, 332 Minnesota Street, Saint Paul, MN 55101 (for relator)

SMI Contracting, Inc., 734 North McKnight Road, Maplewood, MN 55119 (respondent)

Kent E. Todd, 390 North Robert Street, Saint Paul, MN 55101 (for respondent Commissioner)

Considered and decided by Crippen, Presiding Judge, Huspeni, Judge, and Willis, Judge.



A reemployment insurance judge found that relator Christine Wessels quit her job with good cause attributable to her employer, SMI Contracting, Inc., because of harassment by her supervisor and co-workers and because her supervisor would not pay her before her shift ended on her last day of work unless she quit. On review, the commissioner's representative reversed the findings and decision of the reemployment judge and denied Wessels' claim for reemployment insurance benefits. The representative found that Wessels quit her job only because her supervisor would not pay her before her shift ended on her last day of work and not because of any harassment. We reverse.


Wessels was SMI's only female roofer/laborer. After two months, she quit her job and applied for reemployment insurance benefits. In her separation from employment statements, she noted that she had quit for the following reasons: on several occasions her supervisor treated her with disrespect and called her a f---ing bitch and other similar names; the roofing crew told sexual jokes in her presence on a daily basis; the crew members, including her supervisor, urinated on the roof--sometimes near the water cooler from which she was expected to drink; the crew members were not provided with a portable bathroom until the last two weeks of her employment; on her last day of work her supervisor refused to give her her paycheck unless she quit; and after she said she was quitting, her supervisor threatened to throw her off the roof. Wessels stated that on one occasion she complained to SMI's owner and on several occasions she complained to the owner's mother, who worked in the office.

SMI disputed Wessels' claim for reemployment benefits and a reemployment insurance judge conducted an evidentiary hearing. Wessels appeared at the hearing with counsel and a witness; SMI was unrepresented at the hearing. Wessels' evidence essentially corresponded with her written claim for benefits.


An individual who voluntarily quits a job without "good cause attributable to the employer" is disqualified from receiving reemployment insurance benefits. Minn. Stat. § 268.09, subd. 1(a) (1996). Harassment by an employer may provide an employee with good cause to quit if the employee first complains, allowing the employer an opportunity to correct the situation. See Minn. Stat. § 268.09, subd. 1(a) (employee has good cause to quit if separation occurs as a consequence of sexual harassment); McNabb v. Cub Foods, 352 N.W.2d 378, 382 (Minn. 1984) ("notice of harassment to management is essential to a claim for benefits").

The commissioner's representative found that Wessels did not quit her job because of the harassment. An employee's reason for quitting a job is a factual determination. See Embaby v. Department of Jobs & Training, 397 N.W.2d 609, 611 (Minn. App. 1986) (commissioner's representative's determination regarding the reason for employee's separation is a factual determination); Hawthorne v. Universal Studios, Inc., 432 N.W.2d 759, 762 (Minn. App. 1988) (remanding to commissioner's representative for findings regarding reason for separation from employment).

We review the commissioner's representative's factual findings to determine whether there is evidence in the record reasonably tending to sustain them. White v. Metropolitan Med. Ctr., 332 N.W.2d 25, 26 (Minn. 1983). We may not re-weigh the evidence to determine where the preponderance lies, but must examine the evidence to determine whether it reasonably supports the commissioner's representative's decision. Nyberg v. R.N. Cardozo & Bro., 243 Minn. 361, 364, 67 N.W.2d 821, 823 (1954). We conclude that in the present case there are several instances in which the record does not support the commissioner's representative's determination that Wessels did not quit because of the harassment.

First, the commissioner's representative found that the evidence in the record did not support the reemployment judge's finding that harassment caused Wessels to quit. There is ample evidence to support the judge's finding, however. Wessels' separation from employment statement specifically states that she quit "because of" the harassment, as well as referring to the argument about her paycheck.

Second, the commissioner's representative noted that Wessels did not raise the harassment issue on her own during the hearing. To the extent the commissioner's representative may have relied on Wessels' failure to raise the harassment issue at the hearing, that reliance is totally misplaced. Wessels had no opportunity to raise the issue herself. The reemployment insurance judge raised the issue (which Wessels clearly had identified in her separation from employment statement), and Wessels then responded to the judge's questions. When Wessels initially responded to questioning about the circumstances surrounding her separation from employment, she mentioned that her separation occurred during an argument with the foreman. In response to further questioning by the reemployment judge, Wessels testified about the harassment.

Third, the commissioner's representative found that Wessels' testimony was inconsistent with her initial statements to the department. While there are some minor inconsistencies, overall Wessels' testimony is consistent with her written statements and in both written statements and testimony harassment is clearly identified.

Fourth, the commissioner's representative found that there was no causal relationship between the harassment and Wessels' decision to quit. The commissioner's representative concluded that because Wessels had impulsively quit her job on at least two other occasions for other reasons, she also would have quit sooner if she were being harassed. Again, to the extent that the commissioner's representative may have relied on the fact that Wessels quit on two prior occasions to conclude that there was no causal relationship between harassment and quitting, that reliance is misplaced. While testimony may have indicated a reason other than harassment for one instance of quitting, there is no evidence as to an underlying cause for the other instance. Certainly there is no indication that the second quit was not because of harassment.

We note also that the commissioner's representative failed to address the fact that an employee may have more than one reason for quitting a job. See Hawthorne, 432 N.W.2d at 761; Hanson v. I.D.S. Properties Management Co., 308 Minn. 422, 424-25, 242 N.W.2d 833, 835 (1976) (termination must be "wholly without good cause attributable to the employer").

Whether an employee had good cause to quit is a question of law that "is not binding on this court if it does not have reasonable support in the findings." Zepp v. Arthur Treacher Fish & Chips, Inc., 272 N.W.2d 262, 263 (Minn. 1978). The harassment cited by Wessels provided her with good cause to quit. See Minn. Stat. § 268.09, subd. 1(a) (employee has good cause to quit if separation occurs as a consequence of sexual harassment). There is no evidence in the record that Wessels failed to complain about harassment; to the contrary, there is evidence that she complained about the name calling, the sexual jokes, and the lack of bathroom facilities at the job site. While SMI eventually provided portable bathrooms, there is no evidence that the company responded to Wessels' other complaints.

Finally, the commissioner's representative did not address Wessels' testimony that the reason she wanted her paycheck was because she had previously experienced trouble cashing checks from SMI; in fact, Wessels testified that the week before she had not been paid because SMI could rarely "make payroll." This court has previously concluded that an employee had good cause to quit when, for several weeks, he experienced problems cashing payroll checks. Wonder Indus., Inc. v. Marohn, 345 N.W.2d 272, 273 (Minn. App. 1984). The Marohn court agreed with the employee that "the uncertainty of time of payment rendered the conditions of his employment intolerable." Id. at 273. Because we have found that the harassment endured by Wessels provided her with good cause to quit, we need not remand the issue of payment of wages to the commissioner's representative. We note, however, that Wessels' past difficulty in cashing a payroll check might very well provide her with independently sufficient good cause to quit.

The commissioner's representative's decision virtually ignores much of Wessels' uncontradicted evidence and is not reasonably supported by the record.