This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-960

 

Carol R. Nygaard,

Relator,

 

vs.

 

Halstad Telephone Co.,

Respondent,

 

Commissioner of Employment and

Economic Development,

Respondent.

 

Filed April 12, 2005

Affirmed

Crippen, Judge*

 

Department of Employment and Economic Development

File No. 19362 03

 

Lisa Edison-Smith, Leah Warner, Vogel Law Firm, 218 NP Avenue, P.O. Box 1389, Fargo, ND 58107-1389 (for relator)

 

Thomas E. Marshall, Jon S. Olson, Jackson Lewis LLP, 150 Fifth Street Towers, Suite 1450, 150 South Fifth Street, Minneapolis, MN 5504 (for respondent Halstad Telephone Company)

 

Lee B. Nelson, Linda A. Holmes, Department of Employment and Economic Development, 390 North Robert Street, St. Paul, MN 55101 (for Commissioner of Employment and Economic Development)

 

            Considered and decided by Klaphake, Presiding Judge; Peterson, Judge; and Crippen, Judge.

U N P U B L I S H E D   O P I N I O N

CRIPPEN, Judge

            Relator Carol Nygaard claims on appeal that the commissioner’s representative erred by determining that she was disqualified from benefits because she quit without a good reason caused by respondent employer Halstad Telephone Company.  She asserts that respondent dealt wrongfully in responding to her complaint of harassment in the workplace.  Because the findings of the commissioner’s representative are adequately supported by the evidence, we affirm. 

FACTS

Respondent employed relator for over 20 years before she quit on October 21, 2003.  Relator held the position of office manager in the small company of approximately 14 employees.  During all relevant times, relator knew that under respondent’s written policy prohibiting sexual harassment, employees were encouraged to report any incidents of sexual harassment. 

Approximately two or three years before she quit, relator told respondent’s general manager Ron Laqua that plant manager Tom Maroney was touching her inappropriately and that she did not like it.  But relator asked Laqua not to do anything; Laqua took no action at this point.  When relator reported the harassment a second time, she told Laqua that she wanted the harassment to stop.  Laqua told relator that he would talk to Maroney, which he did.  Laqua informed Maroney of an anonymous complaint, and the harassment stopped for a short period of time.  At some point after the second report, Laqua entered relator’s office shortly after Maroney left.  Relator asked Laqua if he saw Maroney touch her.  Laqua responded that he had not, and asked if “that” was still going on.  Relator said that it was, but offered no additional information and Laqua made no investigation.  Laqua testified that relator asked him again not to do anything, but the commissioner’s representative made no finding on the question whether this comment of relator occurred.  

            Relator later retained attorney Daylen Ramstad, who wrote to respondent on October 6, 2003.  In the letter, Ramstad set forth ten incidents of harassment alleged to have occurred between September 2002 and August 2003.  Relator had not brought any of these specific allegations to respondent’s attention prior to the letter.  Ramstad added:  

            Even though [relator] reported Tom Maroney’s conduct numerous times, nothing was done.  Due to the emotional and physical distress that she has suffered, she cannot continue her employment at Halstad Telephone under the current conditions.  We are requesting that she be given a paid leave of absence until all of these matters are settled.  Obviously if she is forced to quit her job due to Tom Maroney’s sexual harassment and the resulting hostile work environment, she will suffer great financial losses.  Prior to commencing legal action or filing a Complaint with the Minnesota Department of Human Rights, we would consider attempting mediation to resolve the claim.

 

            Upon receipt of Ramstad’s letter, respondent granted relator a paid leave of absence and conducted an investigation.  Respondent ultimately concluded that there appeared to be merit to some of relator’s claims.  As a result, respondent suspended Maroney for a week without pay, required that he attend a class on sexual harassment, required that he participate in mediation if relator so chose, and informed him that subsequent incidents would lead to further discipline, up to and including termination.  In a letter dated October 20, 2003, respondent informed Ramstad of the disciplinary action taken against Maroney, and stated that respondent expected relator to return to work on October 22, 2003.

            In a letter dated October 21, 2003, Ramstad informed respondent:

            [Relator] cannot understand how the cooperative can even consider the continued employment of Mr. Maroney in light of her earlier complaints and his continued and pervasive sexual harassment.  It is clear that the work environment will continue to be hostile and that she cannot, under any conditions, continue to work for the Halstad Telephone Company while Tom Maroney is employed.  Therefore, this letter is written to notify you that she will not be returning to work on Wednesday, October 22, 2003.  Please forward written notification as to her paid sick leave and vacation time, together with an explanation of all benefits she can expect to continue to receive.

 

Answering this letter, respondent asked for formal notice of relator’s decision to terminate her employment but stated that it would consider termination effective October 22, 2003, if no notice were given.  In a letter dated October 28, 2003, respondent informed Ramstad that it acknowledged relator’s decision to terminate employment but stated that it was willing to allow relator the opportunity to reconsider her decision.

Relator subsequently sought unemployment benefits, and a department adjudicator determined that she was qualified for benefits because she quit her employment for a good reason caused by her employer.  Respondent appealed, and a department unemployment law judge affirmed, premised on the absence of “timely and appropriate action” by respondent after the reports given before October 2003.  On respondent’s further appeal, the commissioner’s representative reversed the judge’s decision and held that relator was disqualified from the payment of unemployment benefits.

The commissioner’s representative found that respondent’s response to relator’s October 6 letter was timely and appropriate, and that when she quit, relator knew the steps that respondent had taken and acted unreasonably when she “made her return to work conditional upon Maroney’s discharge.”  The representative discounted relator’s complaint about prior responses of the employer based on a finding that relator “did not pursue her remedies under [respondent’s] sexual harassment and discrimination policy by informing a board member or William Brudvik, [respondent’s] attorney, that Maroney was sexually harassing her until the first week in October 2003.”  Thus, the representative concluded that relator was disqualified because she failed to show that she quit for a good reason attributable to the employer.

D E C I S I O N

Appellate courts must review the findings of the commissioner’s representative rather than those of the unemployment law judge.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  In doing so, this court views the factual findings in the light most favorable to the decision.  Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).  Whether an employee has a good reason to quit is a question of law, which this court reviews de novo.  Ryks v. Nieuwsma Livestock Equip., 410 N.W.2d 380, 382 (Minn. App. 1987). 

An applicant who quits employment is disqualified from receiving unemployment benefits unless, among other exceptions, the employee quits for a good reason caused by the employer.  Minn. Stat. § 268.095, subd. 1(1) (Supp. 2003).[1]  Under relevant Minnesota law, good reasons for quitting are those that would compel an average, reasonable worker to quit.  Minn. Stat. § 268.095, subd. 3(a)(2) (Supp. 2003).  If the reason pertains to adverse working conditions, the applicant “must complain” to permit a “reasonable opportunity” for correction of the condition.  Id., subd 3(b). Sexual harassment constitutes a good reason to quit if the employer knew or should have known of the abuse and failed to take timely and appropriate action.   Id., subd. 3(e).

1.

On appeal, relator does not dispute the commissioner’s finding that she failed to make a complaint in the fashion stated in respondent’s harassment policy.  Although that determination may be conclusive, we further review appellant’s assertion that she had good cause to quit because the employer failed in its duty to investigate her three complaints that occurred before counsel acted on her behalf.  As noted above, relator asked Laqua not to act when she first reported the harassment.  Respondent took action the second time relator reported the harassment.  The third time relator reported the harassment, relator said that the harassment was continuing, but offered no further information.

Relator contends that no matter what the form of abuse disclosures, an employer has an affirmative duty to investigate a complaint of sexual harassment.  See Peppi v. Phyllis Wheatley Cmty. Ctr., 614 N.W.2d 750, 752 (Minn. App. 2000) (stating that “[w]hen an employee properly complains to an appropriate person of sexual harassment in the workplace, the employer must investigate the complaint and may not defer that decision to the complaining employee”).  Relator relies on Peppi to support her position that respondent’s failure to take timely and appropriate action gave her a good reason caused by her employer to quit.  But in Peppi, a supervisor failed to respond to an employee’s complaint of sexual harassment.  Id. at 751-52.  The supervisor told the employee that it was up to the employee to decide whether the complaint should be investigated.  Id.at 752.  When the supervisor took no further action, the employee quit.  Id.  Unlike Peppi, relator quit after making a formal complaint and after respondent conducted an investigation and imposed meaningful discipline.  Under the circumstances in the record, it was appropriate for the commissioner’s representative to find that respondent took timely and appropriate action before relator quit her employment.  We find no authority for looking to events prior to a worthy response to find an excuse to quit.       

2.

            Relator also contends that respondent’s past failings to respond to her complaints factored into her demand that Maroney be discharged.  Relator believed that Maroney’s harassment would not otherwise be stopped—she would be required to “return to the lion’s den.”  In support of this position, relator relies upon McNabb v. Cub Foods, 352 N.W.2d 378, 384 (Minn. 1984) (holding that employee had good cause to quit because employer knew about harassment and failed to take timely and appropriate remedial action); Hanke v. Safari Hair Adventure, 512 N.W.2d 614, 618 (Minn. App. 1994) (holding that employee had good cause to quit because he received no reasonable assurances or expectation of assistance); Clark v. K-Mart Store No. 3059, 372 N.W.2d 847, 851 (Minn. App. 1985) (holding that employee had good cause to quit because employer failed to take any action whatsoever upon learning of the harassment).  But these are distinguishable from the case at hand.

            In McNabb, Cub Foods transferred McNabb to another store after she first complained of harassment, but the harassment continued at the new location.  352 N.W.2d. at 380.  McNabb complained again, but nothing more was done so she quit.  Id. at 381.  Cub Foods finally investigated the complaints after McNabb quit.  Id.  In Hanke, an employee complained of harassment by a managerial employee.  512 N.W.2d at 615.  Hanke quit after the business owner told him that he should resolve the matter on his own, and that he could not “control the opinions of what other people feel or think.”  Id.at 616.  Clark involved an employee who quit after complaining of sexual harassment because her employer failed to take any action regarding her allegations.  372 N.W.2d at 850. 

            Here, unlike the cases above, relator quit after respondent investigated the complaints and imposed discipline.  Relator has failed to show error in the determination of the commissioner’s representative that this investigation and discipline was timely and appropriate.  Thus, the representative did not err in deciding that relator acted unreasonably by conditioning her return to work upon Maroney’s discharge.  The record supports the conclusion that relator quit because she disagreed with the discipline imposed.  Under these facts, there is no exception to disqualification from unemployment benefits. 

            Affirmed.