A03-747

Lani Starren,

Relator,

vs.

Thief River Falls Times, Inc.,

Respondent,

Commissioner of Employment

and Economic Development,

Respondent.

Filed March 2, 2004

Affirmed

Hudson, Judge

Minnesota Department of

Employment and Economic Development

File No. 17840 02

Alexander F. Reichert, Reichert Law Office, 405 Bruce Avenue, Suite 100A, Grand Forks, North Dakota 58201 (for relator)

John P. Mattson, Thief River Falls Times, Inc., P.O. Box 100, Thief River Falls, Minnesota 56701 (for respondent employer)

Lee B. Nelson, Philip B. Byrne, Linda Holmes, Minnesota Department of Employment and Economic Development, 390 North Robert Street, St. Paul, Minnesota 55101 (for respondent commissioner)

Considered and decided by Anderson, Presiding Judge; Stoneburner, Judge; and Hudson, Judge.

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

HUDSON, Judge

Relator seeks reversal of the commissioner’s representative’s decision that she did not have good cause to quit. Because our standard of review is narrow and the record reasonably supports the commissioner’s representative’s findings that relator did not have good cause to quit, we affirm.

FACTS

Thief River Falls Times, Inc. (“the Times”) employed relator Lani Starren from August 8, 2002, until October 9, 2002. At the Times, Starren worked with customers who placed classified ads, and she operated the computer to set those ads for the newspaper.

Starren claims she had good cause to quit. Starren testified that she was uncomfortable with the owner’s request to reduce the amount of postage on packages she mailed in order to compensate for an alleged error in the postage-meter scales. Starren also testified that the owner frequently criticized her about her clothing and appearance, specifically telling her not to wear jeans despite the fact other employees were allowed to wear jeans. Starren also contends she was sexually harassed by the owner of the company because the owner constantly stared at her chest, and on one occasion made the comment to her when she was wearing a skirt: “[Y]ou look really nice today, [and] something to the effect that I wiggled really nice in my skirt.” Starren also claims the owner invited her out for drinks after work.

Starren testified that on October 9, 2002, the day she left her job, she was wearing jeans and the owner gave her a note that stated she was not dressed appropriately and “to please dress up more in the future.” Starren contends that a female co-worker was also wearing jeans but the co-worker did not receive a note. Starren testified that there was a personality conflict between her and the owner, and she walked out because she couldn’t put up with it anymore. Starren left work and she testified that she tried to call her employer several times over the next two days, but he would not return her calls. Starren testified that she eventually spoke with the owner and said she could not continue in that kind of environment, but she was willing to come back to work if he would treat her like he treated the other employees. The owner told her that he had hired someone else.

A department adjudicator initially determined that Starren quit her employment without a good reason caused by the employer and was disqualified from receiving benefits. Starren appealed, and after a telephone-conference hearing, a department unemployment law judge affirmed, finding Starren did not have a good reason to quit. The commissioner’s representative remanded the case for an additional hearing by an unemployment law judge because the tape recording was of such poor quality that it could not be transcribed. A different unemployment law judge heard the matter on remand and decided that Starren quit for good reason caused by her employer, namely, the employer’s alleged sexual harassment. The employer appealed, and the commissioner’s representative decided that Starren did not have a good reason to quit and was disqualified from receipt of unemployment benefits. Starren filed a writ of certiorari with this court.

D E C I S I O N

We review the commissioner’s representative’s findings rather than the unemployment law judge’s findings. Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995). We have a narrow standard of review that requires us to view the commissioner’s representative’s findings in the light most favorable to the decision; the decision is not disturbed if the evidence reasonably tends to sustain the commissioner’s representative’s findings. Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002). Further, this court defers to the commissioner’s representative’s ability to weigh conflicting evidence, Whitehead v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995), and to make credibility determinations about proffered testimony. See Jenson v. Dep’t of Econ. Sec., 617 N.W.2d 627, 631 (Minn. App. 2000), review denied (Minn. Dec. 20, 2000).

When an individual quits employment and does not fit into one of the enumerated exceptions including quitting for good reason caused by the employer, the individual is disqualified from receiving unemployment insurance benefits. Minn. Stat. § 268.095, subd. 1(1) (2002). A good reason caused by the employer is a reason directly related to employment, which the employer is responsible for, and “that is significant and would compel an average, reasonable worker to quit . . . .” Id., subd. 3(a)(1)-(2) (2002). “Good cause” to quit has been defined as a reason that is “real, not imaginary, substantial not trifling, and reasonable, not whimsical; there must be some compulsion produced by extraneous and necessitous circumstances.” Ferguson v. Dep’t of Employment Servs., 311 Minn. 34, 44 n.5, 247 N.W.2d 895, 900 n.5 (1976). The standard is “reasonableness as applied to the average man or woman, and not to the supersensitive.” Id. Minnesota statute defines good reason to include both:

(b) If an applicant was subjected to adverse working conditions by the employer, [but] 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) An applicant has a good reason caused by the employer for quitting if it results from sexual harassment of which the employer was aware, or should have been aware, and the employer failed to take timely and appropriate action. Sexual harassment means unwelcome sexual advances, requests for sexual favors, sexually motivated physical contact or other conduct or communication of a sexual nature when:

(1) the applicant’s submission to the conduct or communication is made a term or condition of the employment;
(2) the applicant’s submission to or rejection of the conduct or communication is the basis for decisions affecting employment; or

(3) the conduct or communication has the purpose or effect of substantially interfering with an applicant’s work performance or creating an intimidating, hostile, or offensive working environment.

Minn. Stat. § 268.095, subd. 3 (b), (e)(1)-(3) (2002).

This court reviews findings of fact in the light most favorable to the commissioner’s decision, but exercises independent judgment with respect to questions of law. Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989). The question of whether an employee voluntarily resigns is a fact question for the commissioner. Shanahan v. Dist. Mem’l Hosp., 495 N.W.2d 894, 896 (Minn. App. 1993). Whether an employee had good cause to quit is a question of law that this court reviews de novo. Kehoe v. Minn. Dep’t of Econ. Sec., 568 N.W.2d 889, 890 (Minn. App. 1997). When an employee voluntarily resigns, the burden of proving the resignation was for good cause shifts to the employee. Marz v. Dep’t of Employment Servs., 256 N.W.2d 287, 289 (Minn. 1977).

Starren argues she had good cause to quit because the owner treated her unfairly during her employment by forbidding her from wearing jeans when other employees were allowed to wear jeans, constantly criticizing her, and sexually harassing her. Starren also argues that she was asked to reduce the amount of postage on packages she mailed, which Starren believed was fraudulent. The commissioner’s representative found, however, that Starren quit because of the owner’s criticism of her work attire. The commissioner’s representative found Starren had received several oral warnings and a written performance review expressing concerns about Starren’s casual work attire. The owner testified that it was important for Starren to dress appropriately because her job required her to have contact with the public who came to the office to place ads. On Starren’s last day, the owner testified that Starren’s co-worker’s clothes were “neater and more professional” than Starren’s. The commissioner’s representative concluded that an “employer has a right to set reasonable parameters concerning employee dress” and that the employer acted reasonably by informing Starren discreetly on her last day that her attire was not meeting those standards and that she had to dress more professionally in the future.

The record reasonably supports the commissioner’s representative’s findings that Starren quit due to her employer’s criticism of her work attire. The owner testified that he had talked to Starren about her work attire and that there was a suggested dress code. Starren also testified that the owner pulled her aside on several occasions to speak to her about her work attire and testified that her performance evaluation stated that she needed to dress up more. Thus, Starren was informed orally and in writing that her clothes were not appropriate for work. The record also supports the commissioner’s representative’s finding that on Starren’s last day, her co-worker’s clothes were neater and more professional than Starren’s, and that, despite this fact, the co-worker—not Starren—voluntarily went home to change after Starren received the note about her work attire.

In addition, the record shows that Starren did not quit because she was asked to reduce the amount of postage on packages or because of the alleged sexual harassment. Significantly, Starren quit after receiving a note about her attire, not after any of the alleged incidents of sexual harassment. In fact, Starren continued to work for another month after the owner allegedly commented how nice Starren looked in her skirt; strongly suggesting that the alleged harassment did not cause her to quit.

Because an average, reasonable employee would not be compelled to quit because the employer requested the employee to wear appropriate work attire, we affirm the commissioner’s representative’s decision disqualifying Starren from unemployment benefits.

Affirmed.