This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






Linda J. Johnson,





J.C. Penney Corporation Inc.,



Department of Employment and Economic Development,



Filed February 6, 2007

Affirmed in part and remanded

Kalitowski, Judge

Concurring in part, dissenting in part, Lansing, Judge


Department of Employment and Economic Development

File No. 18013 05


Linda J. Johnson, 40816 Judson Bottom Road, North Mankato, MN 56003 (pro se relator)


J.C. Penney Corporation Inc., P.O. Box 650486, M/S 1201, Dallas, TX 75265-0486 (respondent)


Lee B. Nelson, Linda A. Holmes, 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 Dietzen, 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


            Relator Linda J. Johnson challenges the decision of the unemployment law judge affirming Johnson’s disqualification from receiving unemployment benefits.  We affirm in part and remand.


            When reviewing an unemployment-benefits decision, this court may affirm the decision, remand the case for further proceedings, or reverse or modify the decision if the substantial rights of the petitioner may have been prejudiced because the decision is affected by error of law, is unsupported by substantial evidence, or is arbitrary or capricious.  Minn. Stat. § 268.105, subd. 7(d) (Supp. 2005).  We view the unemployment law judge’s (ULJ’s) findings in the light most favorable to the decision.  Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995).  And we will not disturb factual findings that are sufficiently supported by the record.  Ress v. Abbott Nw. Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).  Whether an employee is disqualified from receiving unemployment benefits is a question of law, which this court reviews de novo.  Peppi v. Phyllis Wheatley Cmty. Ctr., 614 N.W.2d 750, 752 (Minn. App. 2000). 

            An employee who voluntarily quits cannot collect unemployment benefits unless the employee quit for good reason caused by the employer.  Minn. Stat. § 268.095, subd. 1(1) (Supp. 2005).  Good reason caused by the employer is defined as 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.”  Id., subd. 3 (2004).  The “reasonable worker” standard is objective, and is applied to the average person rather than the ultra-sensitive.  Ferguson v. Dep’t of Employment Servs., 311 Minn. 34, 44 n.5, 247 N.W.2d 895, 900 n.5 (1976).

            It is undisputed that relator voluntarily quit her position with J.C. Penney.  Relator argues that she is nonetheless entitled to unemployment benefits because she had good cause to quit.  Relator’s good-cause argument is based on (1) what she terms as “adverse working conditions” and the “harassing and intimidating behavior” of an outside contractor; and (2) her allegation that J.C. Penney failed to award her a promised pay raise.


            Relator was in charge of the stockroom at a J.C. Penney department store.  The record indicates that in June 2005, J.C. Penney changed the procedure for receiving merchandise and transferring it to the sales floor.  Previously the pallets were moved to the sales floor and unloaded there, while under the new system the pallets were unloaded and the merchandise prepared in the stockroom.  Relator argues that this new procedure created an adverse work environment because the stockroom was too crowded, other employees would leave packing materials in the aisles, and the accumulated freight blocked stairwells and exits.  The record also indicates that relator complained to her superiors about the offensive and intimidating behavior of an outside contractor who worked in her area.  Relator alleged that this person would mutter things under his breath and use inappropriate language.  The record reflects that management spoke with the person in response to relator’s concerns.  Finally, the record indicates that relator quit her job in October 2005, when she arrived at work to find that someone had made a mess in an area she had cleaned in preparation for a large shipment. 

            The ULJ found that relator quit her employment without good cause because she was simply dissatisfied with working conditions that were not of the severity that would cause an average, reasonable person to quit.  Frustration and dissatisfaction with one’s working conditions is not a good reason to quit.  Portz v. Pipestone Skelgas, 397 N.W.2d 12, 14 (Minn. App. 1986).  Furthermore, while harassment may establish good cause to quit, the record does not suggest that the behavior of the outside contractor rose to that level.  Tru-Stone Corp. v. Gutzkow, 400 N.W.2d 836, 838 (Minn. App. 1987).  Viewed in a light most favorable to the decision, we conclude that the record reasonably supports the ULJ’s finding that relator’s working conditions did not establish good cause to quit.


            Relator also argues that she quit because J.C. Penney breached a promise to raise her pay.  An employer’s breach of an employment agreement can establish good cause.  Hayes v. K-Mart Corp., 665 N.W.2d 550, 553 (Minn. App. 2003), review denied (Minn. Sept. 24, 2003).  Although relator raised this issue, the ULJ failed to analyze it. 

            The record indicates that in June 2004, J.C. Penney promised relator a pay raise following her performance review.  The raise was scheduled to go into effect on August 1.  Subsequently, J.C. Penney adjusted the salary ranges for all hourly positions.  As a result of the adjustment, relator’s current wage exceeded the new-range maximum.  On August 13, after relator discovered that the raise was not reflected on her most recent paycheck, J.C. Penney informed relator that she would not receive the promised raise.

            In Hayes, we held that the promise of a pay raise is suitable for inclusion in a unilateral employment contract.  Hayes, 665 N.W.2d at 553.  An employer’s failure to grant a promised pay raise therefore violates an employee’s employment agreement and gives her good cause to quit.  Id. at 553-54.  We have also held that when an employer breaches an employment agreement, an employee does not waive good cause to quit by continuing the employment after complaining of the breach.  See Baker v. Fanny Farmer Candy Shops No. 154, 394 N.W.2d 564, 567 (Minn. App. 1986) (involving relator who continued to work for nine months after complaint). 

            The ULJ included a finding that relator was informed she would be receiving a raise, and that J.C. Penney never delivered the raise.  But because the ULJ did not make any conclusions as to what effect those actions had on relator’s claim for benefits, we remand this matter to the ULJ.  Issues to be addressed on remand include, but are not limited to (1) whether there was a unilateral contract; (2) if a contract was formed, whether J.C. Penney breached the employment agreement in light of Hayes; and (3) if J.C. Penney breached the agreement, whether relator was entitled to raise the breach as a reason for quitting more than a year after the fact in light of Baker.

            In conclusion, we affirm the ULJ’s determination that relator’s working conditions did not establish good cause to quit.  But because the ULJ failed to address relator’s argument that J.C. Penney breached her employment agreement, we remand to the ULJ for a determination on that claim.

            Affirmed in part and remanded.

LANSING, Judge (concurring in part, dissenting in part)

            I concur in the determination that the record reasonably supports the unemployment law judge’s finding that Linda Johnson’s working conditions and the behavior of a coworker did not establish good cause for her to terminate her employment with J.C. Penney.  But I respectfully dissent from the decision to remand to the unemployment law judge for further consideration because I do not believe that a factual issue remains, and the claim should be decided as a matter of law. 

The record is undisputed that at Johnson’s annual performance review in June 2004, Johnson’s supervisor told her that she had performed above expectations and, effective August 2004, she would receive a five percent increase to her hourly wage, which was $11.27 at her termination date.  Johnson testified to this fact at the hearing, her supervisor acknowledged that this was an accurate statement, and the unemployment law judge included this fact in his order.  On August 13, 2004, Johnson’s supervisor told her that she would not receive the promised raise.  This issue is therefore determined by Hayes v. K-Mart Corp., 665 N.W.2d 550, 552 (Minn. App. 2003), review denied (Minn. Sept. 24, 2003). 

As the majority acknowledges, Johnson’s continuing her employment after she was denied the promised raise does not waive good cause for terminating the employment under  Baker v. Fanny Farmer Candy Shops No. 154, 394 N.W.2d 564, 567 (Minn. App. 1986) (providing that employee who continued work following good cause for separation did not waive good-cause basis).  Because the facts are undisputed and Hayes applies, I would reverse without a remand.