may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Lori L. Liston,
Flagship Athletic Club,
Commissioner of Economic Security,
Filed September 8, 1998
Department of Economic Security
File No. 7376UC97
Kay Nord Hunt, Lommen Nelson Law Firm, 1800 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for respondent-employer)
Hubert H. Humphrey, III, Attorney General, 102 State Capitol, 75 Constitution Avenue, St. Paul, MN 55155, and
Kent E. Todd, Minnesota Department of Economic Security, 390 North Robert Street, St. Paul, MN 55101 (for respondent-commissioner)
Considered and decided by Shumaker, Presiding Judge, Davies, Judge, and Peterson, Judge.
Relator Lori L. Liston challenges the decision by a representative of the respondent commissioner of economic security disqualifying her from receiving reemployment insurance benefits after she voluntarily quit her job with respondent Flagship Athletic Club. We affirm.
Relator worked for Flagship Athletic Club (Flagship) as a lifeguard, averaging 50 hours a week until she resigned her position because she believed that Flagship was "an unsafe work environment * * * ." On June 19 and 30 and July 22, 1997, the state health inspector closed Flagship's indoor pool because the chlorine level was too high. Relator testified that the high chlorine level produced fumes that irritated her nose and throat. She dealt with her health problems by dividing her time between the indoor and outdoor pools and by increasing her steroid intake from 5 milligrams to 60 milligrams a day for five weeks. When her doctor would not agree to continue prescribing the high dosages of steroids, relator resigned her position on July 23, 1997. Relator did not report her health difficulties to anyone at the health club. But she maintains that "they knew that I had asthma." She obtained a writ of certiorari, seeking review of the commissioner's decision.
An employee who quits employment without good reason attributable to the employer is disqualified from receiving reemployment insurance benefits. Minn. Stat. § 268.09, subd. 1(a)(1) (Supp. 1997) (changing language of statute from "good cause" to "good reason." The employee has the burden of proving that she quit with good reason attributable to her employer. See Zepp v. Arthur Treacher Fish & Chips, Inc., 272 N.W.2d 262, 263 (Minn. 1978) (interpreting prior statutory language "good cause"). Whether an employee had good reason to quit is a question of law. See Porrazzo v. Nabisco, Inc., 360 N.W.2d 662, 664 (Minn. App. 1985). This court need not defer to the commissioner's legal determinations. Geo. A. Hormel & Co. v. Asper, 428 N.W.2d 47, 50 (Minn. 1988). The issue before this court is whether relator met her burden of proving that she resigned with good reason attributable to her employer.
Before quitting, an employee ordinarily must notify her employer of her objections to repugnant conduct encouraged by her employer. Burtman v. Dealers Discount Supply, 347 N.W.2d 292, 294 (Minn. App. 1984), review denied (Minn. July 26, 1984). An employee who does not report offensive work conditions to the employer before quitting forecloses a finding of good cause attributable to the employer. Larson v. Department of Economic Sec., 281 N.W.2d 667 (Minn. 1979).
Relator contends that her employer's violation of the state health code gave her good reason to quit her job. She contends that her situation was similar to that in Parnell v. River Bend Carriers, Inc., 484 N.W.2d 442, 445 (Minn. App. 1992). Parnell held that when an employer violates federal trucking laws related to the public safety, a truck driver thereupon has good cause per se to quit at any time as a result of the violation.
Relator argues that her employer's failure to maintain the requisite chlorine level in the pool violated a state law relating to public safety and gave her good reason to quit her job without notice of the illegality.
The facts in Parnell, however, were significantly different from those in this case. In Parnell, the employer regularly caused its truck drivers to violate federal trucking and highway laws by requiring them to drive more hours than permitted by law and to submit inaccurate driver logs to cover the illegality. Here, the employer's violation was inadvertent and the employer made continuous, good faith efforts to adjust the chlorine content so as to comply with health and safety laws. The employer's conduct did not provide relator with good reason to quit her job.
Relator also contends that she met the "serious illness exception" to the disqualification rule. An employee meets that exception if she quits because of a serious illness after having made reasonable efforts to retain her employment. Minn. Stat. § 268.09, subd. 1(a)(b).
It is not disputed that relator suffers from asthma and that her employer knew of this condition. However, relator never told her employer that the chlorine levels in the indoor pool aggravated her asthma, and there are no facts to support an inference that the employer should have known of the aggravation. In determining what is a reasonable effort to retain employment, the commissioner must determine what is reasonable for the particular employee under the circumstances of that case. Moeller v. Minnesota Dep't of Transportation, 281 N.W.2d 879, 882 (Minn. 1979). The findings of the commissioner must be reviewed in the light most favorable to the decision and are not to be disturbed if there is evidence reasonably tending to support them. White v. Metropolitan Medical Center, 332 N.W.2d 25, 26 (Minn. 1983).
Here, relator's lack of communication with her employer made it impossible for her employer to accommodate her illness. This lack of communication was unreasonable and rebuts the argument that relator made reasonable efforts to maintain her employment. See Prescott v. Moorhead State Univ., 457 N.W.2d 270, 273 (Minn. App. 1990) (relator disqualified from serious illness exception where he failed to inform his employer before resigning that he suffered from depression).
The relator has failed to meet her burden of proof. The record supports the commissioner's finding that relator quit her employment without a good reason attributable to her employer.